Jessica Valenti Calls For Jailing of Critics Of War And The Draft

Jessica Valenti of The Guardian thinks that, just as we jailed people who protested and criticized the draft during World War I, we should be able to jail people who release unflattering videos about Planned Parenthood. Both, she believes, are justifiable.

Well, she doesn't say that explicitly. But that's the necessary implication of column today in The Guardian, in which she says that releasing undercover videos about Planned Parenthood should not be protected as free speech.

Freedom of speech is one of America’s most cherished rights, but we’ve always had limits on what’s acceptable: in 1919, the US supreme court ruled that the right doesn’t apply to speech that incites action that would harm other people.

At the time, the example presented by the court was that falsely yelling “Fire!” in a crowded theater doesn’t count as protected speech.

Like many people who favor censorship but have a cookie-sheet-shallow grasp of its history, Valenti is misquoting Oliver Wendell Holmes dropping a rhetorical aside in Schenck v. United States. Holmes invoked that image to justify the prosecution and imprisonment of a man who criticized and questioned the draft during World War I. Of course, in the century since, American courts have abandoned Holmes' sloppy and unprincipled stand, narrowing the "incitement" exception to intended to and likely to cause imminent lawless action. But Valenti speaks approvingly of the original ruling because, in her mind, it justifies censoring speech she doesn't like.

Just as she misleads her readers about history, Valenti misrepresents the present. She suggests that a federal judge in the Northern District of California prohibited the distribution of the Planned Parenthood videos because they posed a risk of danger to clinics. "Now, in the wake of the release of secretly taped and deceptively edited videos of abortion providers, a judge has issued a temporary restraining order because of the very real threat of violence that the videos pose." Valenti either doesn't understand the legal issues or is lying about them. In the Northern District case, the National Abortion Federation learned from the mistakes of Stem Express and explicitly couched their lawsuit and injunction request against the defendants in terms of breach of confidentiality agreements and fraud, not wrongful content. As Eugene Volokh explained, such content-neutral grounds may support prior restraint on speech, because they aren't about the content of your speech, they're about enforcing your promise not to reveal the information you're revealing.

To secure an injunction, a plaintiff must show — among other things — that they are likely to prevail on the merits of the suit and that the "balance of hardships" weighs in their favor. The NAF did not invoke the threat of violence as evidence that they would prevail. Instead, they argued that they would prevail because the defendants fraudulently obtained access to NAF events and violated confidentiality agreements. Only then did they argue that the balance of hardships was in their favor because of the atmosphere of threats and violence against abortion providers. The judge's temporary restraining order did not say that NAF was entitled to prior restraint because the risk of violence allows prior restraint. Rather, the court said that NAF had shown it would prevail on its substantive claims of fraud and breach of confidentiality agreements, and that the threats of violence went to the balance of hardships. Valenti is misleading her readers.

Valenti asserts that the Planned Parenthood undercover videos have caused violence against Planned Parenthood clinics. The only evidence she cites are the statements of the crazed and evil Colorado shooter. Valenti asserts that the videos are "secret" and "deceptively edited," but she does not explain how we know that the "deceptive" parts are what (allegedly) incited threats and violence, as opposed to the parts of the videos that are admittedly true.

Valenti's goal is clear: a broad, unprincipled rule that would punish rhetoric she doesn't like:

The frenzied language surrounding the video’s release – including out-and-out lies on national television by Republican presidential hopeful Carly Fiorina – has stoked harassment and violence. And though preventing the release of more footage may not stop lies and violent speech, it could help curb it and would send the message that anti-choice activists will not be allowed to spread lies without consequence.

Some social controversies do lead to death threats and violence. Both are utterly unacceptable; I wish that more political death threats were investigated and punished. But note that Valenti's eager advocacy for censorship is not tethered to illegally recorded videos or misleading videos or even videos with explicit lies: it's an explicit call to censor political speech that makes people mad, whether or not it's intended or likely to cause imminent violence. It's an vague call for someone in the government — perhaps people who agree with Valenti? — to decide what bits of political rhetoric and hyperbole are "lies" and suppress political speech accordingly.

Everyone who reads Jessica Valenti's column and believes it is now stupider about First Amendment law. Remember: free speech has enemies. Fight them.

Going Home Again To Star Wars [No Spoilers]

One evening in 1977 I stood in a long line with my parents at Grauman's Chinese Theater. I was utterly oblivious to what I was waiting for; 1977 marketing campaigns look quaint compared to the barrage we endure now. I had no precedent. The trip was out of character for my parents, who weren't science fiction fans or movie buffs. Despite the lack of preparation, the experience of seeing Star Wars that night was transformative. I had enjoyed the normal run of eight-year-old-boy obsessions — sharks and dinosaurs and the Six Million Dollar Man — but those were nothing compared to the immersive imaginative leap the movie inspired. The fascination was a community experience. Star Wars was the lingua franca of kids my age, providing common ground to boys and girls, jocks and nerds, bullies and the bullied, kids of every ethnicity and neighborhood. Everyone was running around the playground like an idiot pretending to be an X-wing, and our relentless hunger for action figures made George Lucas filthy rich.

Three years later I was watching The Empire Strikes Back at a run-down drive-in movie theater somewhere in the San Gabriel Valley with my father. He viewed the movies as silly, but recognized that nothing would make me happier than seeing the movie immediately, and so found the one place we could find tickets. We ate dangerously revolting drive-in cheeseburgers and listened to the crackling audio and once again I was transported. I was old enough, at 10, to follow everything, and still young enough to appreciate everything.

Three years later Dad got tickets to a charity premiere that allowed us to see Return of the Jedi a day early. It made me very happy, as he knew it would, but somehow not quite as happy as I was at the first two movies. Surely part of that was that Return of the Jedi isn't as good of a movie as the first two, even by space-opera popcorn-flick standards. But it was also because I was 13, and no longer uncritically delighted at anything. The gravitational tug of adolescence and eventual adulthood, with their cares and worries and self-consciousness, had a hold of me.

So what was it like, more than 32 years later, to watch the latest Star Wars movie with my wife and kids?

It was different. But not, I've concluded, a bad different.

First: the movie. Star Wars: The Force Awakens was thoroughly enjoyable. The newcomers in the lead roles have charisma and great chemistry. Oscar Isaac was underused as ace pilot Poe Dameron — hopefully he'll get more attention in the sequels — but Daisy Ridley and John Boyega deserve the career they're going to have now. Harrison Ford could have just lounged around being iconic but instead delivered a top performance, showing flashes of both his character's original flair and the weight of the years since. The bad guy is three-dimensional and compelling — J.J. Abrams understands that notes of humanity make a villain more terrifying, not less. The special effects are skillfully mustered to enhance the story, not substitute for it. The dialogue was slightly clunky at worst and quite funny at best. The plot? Of course there are holes. How could there not be? And sometimes the echoes of earlier movies were a bit too loud. But what flaws the movie had never took me out of it. I never winced or groaned. The prequels made me think I can't be enthralled by a movie any more like I could when I was 10; this didn't. The nostalgia was positive, not rueful. My hopes and expectations — kept carefully at bay with the reins of bitter experience — were exceeded. Did it make me as happy as, say, Fellowship of the Ring? No. But it made me very happy.

But it didn't feel like watching The Empire Strikes Back with Dad at a drive-in in 1980. How could it? I haven't been 10 for a third of a century. I have the preoccupations of an adult. I have cares that make it hard to be fully present in any moment, let alone moments of heedless fantasy. Never again will I race around the back yard with friends, tumbling into the bushes and shoving each other off of hills pretending to fight Stormtroopers, furiously shouting "I hit you! I hit you! It's a BLASTER! You're DEAD!" Never again will I go to bed dreaming of nothing more but the carefree pleasures of the next day.

Fortunately life has a way of replacing one pleasure with another. I walked out of the theater holding my wife's hand, smiling and talking about our memories of childhood. My older two kids skipped ahead of us, excitedly talking about heroes and villains and squabbling over details. My youngest held my other hand, loudly claiming that she was FINISHED with such things and would see NO MORE STAR WARS OF ANY KIND WHATSOEVER. She had spent a substantial part of the movie curled up in the chair with me, head against my chest. It was a bit noisy for her tastes, though the normally prohibited Skittles were some consolation.

The warmth I felt wasn't just nostalgia, or hopes and expectations mostly rewarded. It was the ineffable pleasure of experiencing the happiness of the people I love. Even if I can't access what it's like to be 10 any more, my kids can, and it turns out that watching them do it is somehow better than doing it myself. For years I felt sorry that the price of my great pleasure in 1980 was my Dad enduring bad cheeseburgers at a distant drive-in with a movie he didn't care about. Now I know how happy my joy must have made him. Now I can help make those moments for my kids.

Challenged About the First Amendment, Eric Posner Lies About It

Last week I wrote about Professor Eric Posner's latest proposal for new First Amendment exceptions, placing it in the context of his history of advocacy for expanded free speech restrictions. Many others criticized Posner, usually more articulately than I did.

In a more recent post addressing (sort of) his critics, Posner offers this rebuttal:

The third generic argument is that once one makes an exception to broad protections for freedom of speech, the camel’s nose is under the tent, we have stepped onto a slippery slope, etc. These clichés are as dry as dust and not even true. Courts have constructed countless exceptions to the First Amendment’s apparent unconditional protection for speech, including exceptions for defamation, child pornography, copying, fraud, and more—and yet none of these exceptions have expanded to swallow up the rule.

I recognize that "countless" is a figure of speech, and difficult to prove or disprove. But offered to the end of censorship by a law professor, I am comfortable calling it a lie. At a minimum it is dishonest and misleading, part of pro-censorship movement's attempt to make Americans more ignorant about their civil rights.

Posner's argument — that there are "countless" exceptions to the First Amendment and it's perfectly natural to make more — is exactly the government's we-should-have-power-to-censor argument that the Supreme Court flatly rejected in United States v. Stevens in 2010. In Stevens — which I've written about before — the Supreme Court rejected the federal government's attempt to create the first of many new "balancing" based ad-hoc exceptions to the First Amendment. Faced with loathsome speech — so-called "crush videos" depicting animals being killed for pleasure — the court unequivocally reaffirmed that the set of First Amendment exceptions is historically based and finite and cannot be expanded based on the of-the-moment application of "balancing tests":

“From 1791 to the present,” however, the First Amendment has “permitted restrictions upon the content of speech in a few limited areas,” and has never “include[d] a freedom to disregard these traditional limitations.” Id., at 382–383. These “historic and traditional categories long familiar to the bar,” Simon & Schuster, Inc. v. Members of N. Y. State Crime Victims Bd., 502 U. S. 105, 127 (1991) (Kennedy, J., concurring in judgment)—including obscenity, Roth v. United States, 354 U. S. 476, 483 (1957), defamation, Beauharnais v. Illinois, 343 U. S. 250, 254–255 (1952), fraud, Virginia Bd. of Pharmacy v. Virginia Citizens Consumer Council, Inc., 425 U. S. 748, 771 (1976), incitement, Brandenburg v. Ohio, 395 U. S. 444, 447–449 (1969) (per curiam), and speech integral to criminal conduct, Giboney v. Empire Storage & Ice Co., 336 U. S. 490, 498 (1949)—are “well-defined and narrowly limited classes of speech, the prevention and punishment of which have never been thought to raise any Constitutional problem.” Chaplinsky v. New Hampshire, 315 U. S. 568, 571–572 (1942).
. . .
The Government contends that “historical evidence” about the reach of the First Amendment is not “a necessary prerequisite for regulation today,” Reply Brief 12, n. 8, and that categories of speech may be exempted from the First Amendment’s protection without any long-settled tradition of subjecting that speech to regulation. Instead, the Government points to Congress’s “ ‘legislative judgment that … depictions of animals being intentionally tortured and killed [are] of such minimal redeeming value as to render [them] unworthy of First Amendment protection,’ ” Brief for United States 23 (quoting 533 F. 3d, at 243 (Cowen, J., dissenting)), and asks the Court to uphold the ban on the same basis. The Government thus proposes that a claim of categorical exclusion should be considered under a simple balancing test: “Whether a given category of speech enjoys First Amendment protection depends upon a categorical balancing of the value of the speech against its societal costs.” Brief for United States 8; see also id., at 12.

As a free-floating test for First Amendment coverage, that sentence is startling and dangerous. The First Amendment’s guarantee of free speech does not extend only to categories of speech that survive an ad hoc balancing of relative social costs and benefits. The First Amendment itself reflects a judgment by the American people that the benefits of its restrictions on the Government outweigh the costs. Our Constitution forecloses any attempt to revise that judgment simply on the basis that some speech is not worth it. The Constitution is not a document “prescribing limits, and declaring that those limits may be passed at pleasure.” Marbury v. Madison, 1 Cranch 137, 178 (1803).

Saying that courts have created "countless" exceptions to the First Amendment is not true. The opposite is true: courts have made those exceptions expressly limited and enumerated. They have done so in the course of rejecting Posner's exact argument.

There are foes of the First Amendment. And they lie. Watch them. Call them out. Fight them.

Edited to add: Just remembered that in my post about anti-free-speech media tropes, I said this:

Trope Eight: "[Professor] explained . . . ."

Example: "The exhibit of cartoons in Texas might have crossed the line, [Professor] Szmer said."

The media loves to quote a professor to support a viewpoint. This is intellectually neutral: it can be good or bad, depending on the honesty and qualifications of the professor selected.

Quoting professors about law is particularly risky, if your aim is an accurate and informative discussion of free speech law. If you call a physics professor and ask them what will happen if you drop your pencil, and why, he or she will say "it will fall, because of gravity." There is a relatively low chance that the professor will tell you "well, maybe nothing will happen" because he or she harbors the belief that the current gravitic regime is unfair and otherwise problematical. But when you call a professor of law, or political science, or journalism, and ask them a question about whether some controversial speech is protected by the First Amendment, there is an unacceptably high probability that you will get a quote expressing what the professor thinks the law ought to be. Sometimes the professor will flag a statement as an argumentative one, sometimes not. Moreover, some professors . . . . how can one put this delicately? Some law professors' views on how a court is likely to rule on an issue are untainted by exposure to actual courts.

Many professors will give you a sober, accurate and well-informed assessment of how a court would likely approach a given free speech situation. The trick is separating those professors from ones who are out of their field or mere advocates.

Ahem.

An Open Letter to Reuters Reporters Nate Raymond and David Ingram

Dear Mr. Raymond and Mr. Ingram:

Today you reported on the arrest of the widely-hated Martin Shkreli on securities fraud charges. You ran a picture of the "perp walk" — the once-free now-defendant being led away in handcuffs by law enforcement:

Image owned by Reuters, used for criticism and commentary, no copyright asserted.

Image owned by Reuters, used for criticism and commentary, no copyright asserted.

Here's your oblique comment about getting that sought-after shot:

Reuters witnessed Shkreli's predawn arrest at the Murray Hill Tower Apartments in midtown Manhattan. Law enforcement, including FBI agents, could be seen escorting the hoodie-clad 32-year-old into a car.

Now, it's possible that Reuters photographers were outside those apartments before dawn because of moxie and hustle. Maybe someone tipped them that a whole bunch of feds had just shown up at that building, and they put two and two together and ran right over in time for the shot. Maybe they heard coordination with the locals over police scanners.

Or maybe not.

Based on my experience with perp-walked clients1, I think the more likely scenario is that a government agent responsible for investigating and prosecuting Mr. Shkreli tipped Reuters off about the arrest — that someone told Reuters to be there to catch the perp walk.

If Reuters was there through independent investigation, then good for them. But if Reuters was there because of a tip from law enforcement, then I'd like to ask a couple of questions.

There are two subjects on which Reuters could have informed its audience, two sets of questions it could have answered:

Subject One: Who leaked the time and place of the arrest? Was it an FBI agent, a prosecutor, staff, a coordinating local cop? How high up in the government did the decision to leak the arrest go? Did the leak violate the law? Did it violate the defendant's rights? What was the government's purpose in leaking the time and place of the arrest? How does this instance fit into the pattern of which arrests get leaked and which don't? Which nonviolent defendants without records get arrested, and which get summonsed in (or self-surrender through arrangement with their lawyers), and why? What impact does a front-page picture of a defendant in handcuffs have on the jury pool? Is that impact a feature, or a bug, of leaking it? Was the leak intended to inflict extra-judicial humiliation and punishment on the defendant? If the government lies about whether or not it leaked, would you still keep it secret?

Subject Two: What would Martin Shkreli look like being led away in handcuffs?

It seems Reuters chose to address the second subject.

I don't know whether or not you two personally had a hand in accepting any leak from the government, or whether you even know what happened. But I'd still like to ask you about that choice.

Why did Reuters choose Subject Two over Subject One?

Why should I trust Reuters' reporting on criminal justice matters when it is the type of organization inclined to answer the banal tabloid question posed by Subject Two, rather than the questions contained in Subject One?

Thank you,

Ken White

Edited to add P.S.: Someone better than I at paying attention points out that the photo credit on Reuter's page gives Mr. Raymond himself the credit for the shot. So.

Eric Posner: The First Amendment's Nemesis

Every hero needs a villain.

Not only that, ever hero needs a suitable villain, a villain that somehow complements the hero's attributes. If your hero is a very large collection of Dalmatians, you need a villain who craves a Dalmatian-skin suit. If your hero is Aquaman, you need either a seafood-themed villain or perhaps a desert-themed villain, depending on your mood. If your hero is The Flash, you need a gigantic gorilla, because — well, okay. There are exceptions.

The First Amendment is not an exception. The First Amendment is a hero, of a sort: a tireless defender of expression from angry mobs and fickle tastes, a sentinel against the sort of annoy-me-and-I-kill-you rule that has prevailed for most of humanity's history. So of course it has a villain, a foe, cackling and scheming and plotting to tie it up and lower it into a bubbling vat of stinking, unprincipled lit-crit twaddle.

That villain is Eric Posner, professor at the University of Chicago. I would not go as far as to call him super-, but he is certainly the First Amendment's archvillain.

Professor Posner is in the news again with his latest call to restrict free speech. But you can't just leap in and read that cold. No! That would be like jumping into late-season Daredevil and not understanding why that nice gentleman from Law & Order seems so morose. You have to know the backstory: before you watch this week's battle, you have to see at least some of the battles that have gone before.

In that spirit, I offer you a sort of episode guide. Careful — there are spoilers!

Episode One: Wrath of the Blasphemed. In this episode, Posner plots to overturn the First Amendment in favor of international anti-blasphemy norms, and allow government punishment of speech he believes has "no value whatsoever." Little do his victims know the real nature of the international anti-blasphemy norms he touts: they are tools for religious majorities to oppress minorities, cruel whips that the powerful use to lash the powerless. Is that end this fiend's aim, or is he merely indifferent to it in his quest for the power to control speech? Tune in to find out.

Episode Two: Eric's Army of Darkness. In this episode, temporarily thwarted in America by the First Amendment, Posner seeks to overthrow free speech in Europe through clever reliance on violent terrorists. Faced with the Charlie Hebdo massacre, Posner sees fear and violence as the path to power over what people can say: he proposes that speech should be limited based upon what his motley league terms "low value," and based on the threat that if he is not given free reign to censor, fanatics will shed blood:

Me: if hate-speech laws had been enforced against Charlie Hebdo, then this attack would not have happened. So at a minimum, there is some evidence that they reduce violence. Rauch is right that hate-speech laws cannot be applied “neutrally.” But they can be enforced sensibly, to censor low-value speech that offends groups to the extent that violence may result.

Will the Europeans realize that this theory cedes control over speech to the subjective reactions of (1) foes of speech like Posner, and (2) the sort of fanatics who kill over cartoons? Find out next week! (Spoiler: no.)

Episode Three: Attack of the Zombie Children.> In this episode, Posner realizes that college students have underdeveloped brains ripe for control, control that can be exercised through more muscular speech codes and expression limitations. In what will become an ongoing theme this season, Posner harkens wistfully harkens back to an era will less freedom:

Yet college students have not always enjoyed so much autonomy. The modern freedoms of college students date back only to the 1960s, when a wave of anti-authoritarianism, inspired by the Vietnam War and the civil rights movement, swept away strict campus codes in an era of single-sex dorms.

Episode Four: The Listener. The First Amendment is on vacation so a disconsolate Eric Posner skulks around throwing rocks at the Fourth Amendment's windows.

Episode Five: In Which Posner Seeks To Sell Our Birthright Of Liberty for a mess of pottage that is security theater. You're caught up to the current episode! This time, Eric Posner proposes a law that "makes it a crime to access websites that glorify, express support for, or provide encouragement for ISIS or support recruitment by ISIS; to distribute links to those websites or videos, images, or text taken from those websites; or to encourage people to access such websites by supplying them with links or instructions." This will help prevent ISIS from recruiting American teenagers, just as laws against copyright infringement have effectively held them back from music and video piracy. Posner wants to invent a sinister time machine to take us back to the early 20th century, before modern speech protections:

However, these rules go back only to the 1960s. Before then, in the United States, people could be punished for engaging in dangerous speech. The U.S. government prosecuted Nazi sympathizers during World War II, draft protesters during World War I, and Southern sympathizers in the Union during the Civil War. It’s common sense that when a country is embroiled in a war, it should counter propaganda that could populate a fifth column with recruits.* The pattern in American history—and, in the other democracies as well, even today—is that during times of national emergency, certain limits on speech will be tolerated.

In other words, Posner is enthusiastically encouraging a return to the time when you could be jailed for questioning whether a war was just or expressing opposition to the draft.

Eric Posner is well-cast as the First Amendment's nemesis: he represents everything it stands against. He represents obeisance to passing tastes about what is couth, clenched fists of power disguised as helping hands, suppression dressed up as order. He is the Foe.

A villain has to be a little scary — there has to be at least some possibility that he'll prevail and overthrow the hero.

But the First Amendment has a lot of friends. I like its chances in this fight.

Lawsplainer: How the Eleventh Circuit Let Florida Shut Up Doctors About Guns

Do you have time for a question?

No.

It's just that I heard that the Eleventh Circuit held that it's unconstitutional for doctors to mention guns.

I know what you're doing.

What?

You're trying to bait me into doing a lawsplainer by mangling the holding of a case so I can't resist correcting you. I'm onto you. I'm not that easily manipulated.

You're not? Really?

DAMMIT

Set me straight. What did the Eleventh Circuit do?

Okay. Fine.

On Monday, in a case called Wollschlaeger v. Florida, the United States Court of Appeals for the Eleventh Circuit issued its most recent change of mind about whether Florida could prohibit doctors from pestering their patients about guns.

Why are you throwing shade at the Eleventh Circuit?

Because this opinion is the Eleventh Circuit sua sponte — that means of its own accord, not based on anyone's motion — vacated its earlier opinion, which it had issued after granting rehearing on its original opinion.

Sounds a little waffly. So what's at issue in the lawsuit?

Florida legislators got wind that some doctors like to ask patients if they own guns and whether they are securely stored and so on. The legislators thought that was part of a law on guns, so they passed a law prohibiting doctors from certain types of questions. I wrote about it back when the trial court struck the law down.

But it's usually conservatives who are very pro-gun-rights. Isn't it kind of un-conservative to increase regulation of the doctor-patient relationship?

Yes. Yes it is. But for some conservatives guns are the big asterisk next to conservative principles.

So how did this law limit doctors?

In four key ways. Here is how the Eleventh Circuit summarized it:

The Act provides, in relevant part, that licensed healthcare practitioners and facilities (1) “may not intentionally enter” information concerning a patient’s ownership of firearms into the patient’s medical record that the practitioner knows is “not relevant to the patient’s medical care or safety, or the safety of others,” id. § 790.338(1); (2) “shall respect a patient’s right to privacy and should refrain” from inquiring as to whether a patient or their family owns firearms, unless the practitioner or facility believes in good faith that the “information is relevant to the patient’s medical care or safety, or the safety of others,” id. § 790.338(2); (3) “may not discriminate” against a patient on the basis of firearm ownership, id. § 790.338(5); and (4) “should refrain from unnecessarily harassing a patient about firearm ownership,” id. § 790.338(6).3

So how did the Eleventh Circuit handle the conflict between doctors' right to speak and the patient rights created by this statute?

In two key ways. First, the court rejected the doctors' argument that the statute is too vague.

Under the "void for vagueness" doctrine, statutes must be sufficiently clear that an ordinary person can tell what conduct is prohibited, especially in the context of laws limiting free expression. This statute has a lot of potentially fuzzy terms like "good faith" and "harassing."

Here the court found that the intent requirements of the statute make it sufficiently clear. In other words, the statute doesn't just prohibit recording irrelevant information about patient gun ownership; it only prohibits it when the doctor knows the information is irrelevant. Even if the scope of relevance of gun ownership is unclear and arguable, the statute permits a defense when a doctor is inquiring about guns in good faith. Finally, the court found that the term "unnecessary harassing" is clear from the context of the entire statute, which prohibits irrelevant and bad-faith inquiries. "When read in the context of the Act as a whole, the harassment provision communicates that physicians should not disparage firearm-owning patients, and should not persist in attempting to speak to patients about firearm ownership when the subject is not relevant to medical care or safety."

Okay. So the court says it's not vague. But what about doctors' right to free speech?

Well, first the court has to decide whether it regulates speech at all.

What do you mean? Of course it regulates speech. It's right there in the language.

Sure it is. But it's a doctor's speech to patients — it's professional speech. Courts treat laws regulating professional conduct differently than they treat the speech of a citizen standing on the street corner. That's why, for instance, states can require doctors to be licensed without violating their free speech rights. This distinction — speech as an individual vs. conduct as a regulated professional — is the one that made the difference in the challenges to the California law barring so-called "conversion therapy," as I wrote about. This was an issue in Casey v. Planned Parenthood, where the Supreme Court said that a state could make doctors provide specific information to women seeking abortions.

Restrictions on professional speech get analyzed on a sliding scale — the closer it is to core conduct regulation with only incidental impact on speech, the less scrutiny the law gets, and the closer it gets to the professional's personal expression, the more scrutiny it gets. As the court says here:

Our task, then, is to determine whether any provision of the Act crosses the boundary between a law regulating professional conduct with an incidental effect on speech and a law regulating protected speech, which “must survive the level of scrutiny demanded by the First Amendment.” Lowe, 472 U.S. at 230, 105 S. Ct. at 2583 (White, J., concurring).

Here, the court said that the prohibition on discriminating against gun-owners is a conduct regulation with only incidental impact on speech, so doesn't implicate the First Amendment. That anti-discrimination laws are about conduct and not speech is controversial to some people but not to most modern courts. The rest of the provisions implicate speech, the court said, and so are subject to First Amendment scrutiny.

What's scrutiny, anyway? Isn't that just looking?

It's a term of art in constitutional law. "Scrutiny" refers to the level of justification that the government must supply to support a law that implicates constitutional rights. It goes all the way from "rational basis" (meaning that the state just has to show that the law isn't completely irrational) to strict scrutiny (meaning the state has to show that the law is supported by a compelling interest, is narrowly tailored to achieve that interest, and is the least intrusive method of achieving that interest). Laws almost always pass rational basis scrutiny and almost always fail strict scrutiny.

What scrutiny did the court apply here? What level is supposed to apply to professional speech?

The court decided not to decide — it said that it didn't have to rule on what level of scrutiny applies because this law survives even a strict scrutiny analysis.

Wait a minute. I thought you said laws almost always fail strict scrutiny examinations.

I did.

The court accepted Florida's argument that it had a compelling interest in protecting the Second Amendment rights of its citizens. Relying on stories told to Florida legislators about intrusive doctors, the court found that Florida had a compelling interest in preventing citizens from being chilled and deterred from either maintaining their rights or seeking healthcare.

And how did the court find that the law is narrowly tailored to that end? They just did. This is the core paragraph:

The Plaintiffs first argue that the Act cannot be narrowly tailored to the protection of Second Amendment rights because the speech in question does not interfere with such rights. This argument could not be farther off base. It is of course an interference with Second Amendment rights for a trusted physician to tell his patient—for no medically relevant reason whatsoever—that it is unsafe to own a gun. Though such actions, on their own, may not stop the patient from owning a gun, complete prohibition is hardly required to infringe on constitutionally guaranteed rights. Such speech chills the patient’s exercise of his rights and that is sufficient.

This is begging the question, in my opinion. It treats advocacy against a right as interference with a right, a proposition that is far from self-evident.

The court also found that the law was narrowly tailored even though Florida has another law explicitly allowing patients to refuse to answer doctor questions about guns. "That argument is also unpersuasive because of the significant power imbalance between patient and doctor." The court also analogized the situation to the Supreme Court's captive-audience cases, where the subject's privacy is invaded by the speaker in a way the subject cannot avoid, and referenced cases allowing buffer zones around health clinics.

This is some of the most forgiving strict scrutiny I've ever seen.

Why would the Eleventh Circuit go easy on Florida?

Guns are a controversial issue. They often distort application of other rights.

Is the court's conclusion plausible, colorable? Sure. But it's noticeably forgiving to the state, and eagerly accepts some propositions that you wouldn't expect a usually conservative court to agree with: that the doctor-patient relationship is so power-unblanaced that it permits broad regulation, and that consumers are compelled to hear the speech of professionals they select. Similarly, the court's practical concerns are ones you'd expect to hear in a "liberal" decision, not a "conservative" one.

The case demonstrates how you can manipulate scrutiny by altering the level of focus. Is the question whether Florida has a compelling interest in protecting its citizens' Second Amendment rights? (It does.) Or is the question whether Florida has a compelling interest in protecting the Second Amendment rights of its citizens from the individual decisions of other citizens in voluntary relationships? (That's much more of a stretch.)

There's another controversial issue lurking about here: abortion. Many of the physician-compelled-speech cases arise in the context of doctors challenging state laws requiring them to, for instance, perform and narrate ultrasounds to their patients seeking abortions. A decision giving the state wide latitude to regulate doctor-patient speech is a precedent that will support laws restricting abortion. Yet, ironically, the decision employs some of the same arguments that pro-choice litigators tend to make: the argument "this is necessary because rural gun owners might have to travel a long way to find another doctor" is remarkably similar in tone and socioeconomic concern with "rural women may have to travel a long way to find a different abortion provider."

Do you agree with the case?

No. I think the anti-discrimination provision is legal under modern law, though it's legitimate to ask why the legislature wants to protect some rights from physician judgment but not others. But I think the court has misapplied strict scrutiny, has accepted the state's claim of compelling interest too lightly (and in a nanny-state way), and has not taken narrow tailoring seriously.

What happens now?

This case might or might not go further. But there are a number of compelled-physician-speech cases out there in the abortion context that may eventually find their way to the Supreme Court and clarify this area.

My Four Favorite L.A. Times Comments

So the L.A. Times invited me to take this post about gun dialogue, remove the swears and most of the words and as much of the personal dysfunction as possible, and let them use it as an op-ed. I did, and they did. It ran on last Sunday's dead-tree op-ed page as well as online.

We get some odd comments at Popehat. But L.A. Times comments were at another level. Here, in no particular order, are five of my favorites:

More whining from a liberal.

Don't try to infringe on our 2nd Amendment rights, and ain't gonna be no problems.

You want a second civil war? Then come try and take em from us…….

Reasoned debate went out with the WASPs.

It will be some time before it returns, to the detriment of our nation.

Most every alleged mass-shooter was taking psychotropic drugs that often cause violent impulses.

MSM won't report this because they get major ad $$$ from Big Pharma to push Rx snake oil: Paxil, Prozac, etc. Instead they blame guns.

MSM also won't report that certain demographics are doing gun crimes at rates over 10x the Euro average. Af-Am's & Hispanics are over 90% of shooters in L.A. & Chicago, but are loyal Dem voters, so MSM blames guns & pale Repub's.

Let's start there.

That's all well and good, Mr White, if that's your real name, but what about the real threat that faces every man, woman, and child today?

You know very well what of I am writing.

What about the pony menace?

The Popehat Week In Review: December 11, 2015

This week:

Sarah McLaughlin offered a guest post about a new reason that Gollum needs therapy.

Marc Randazza joined Popehat. I'm not sure how many fucks will be given, but clearly many will be said.

Marc immediately got busy giving certain commenters aneurysms by suggesting armed resistance to a modern government is impractical.

Ken Kensplained why we talk past each other about guns.

Marc praised Boston (the city and the band) at length in describing a good opinion vs. fact decision.

Marc lawsplained what claims Jeb! might have against Trump for cybersquatting.

Marc described what happens to a modern college student who writes something unpopular.

Marc mounted a vigorous attack on the tabloid no-privacy approach to modern politics.

Ken ridiculed the sentiment that calling Trump a bigot somehow impedes his First Amendment rights.

The Road to Popehat, as always, reflected bad life choices.

Marc will tell you who the REAL offensive one is, man, in the case of Man in the High Castle advertisements being removed from public transit.

The Road To Popehat: Questionable Life Choices Edition

It's time for the Road to Popehat: the feature in which we check out the traffic logs, see what searches brought you here, and contemplate whether a Trump presidency would really make such a big a tonal difference.

This time: go home and sit down and think about your life.

does slander count when you're drunk OK sir I see I'm going to have to ask for a larger fee deposit on this one.

is defamation good or bad? Welllllll, it's good for business.

a judge called me an arsehole can i sue him Definitely. For slander. And possibly RICO. I'll wait here and watch.

the new wife said she wished i would just die, is that a threat I'm just spitballing here but have you tried not calling her the new wife?

what does it mean when your boss tells you that he could still investigate your wrong doing, does he usually end up looking into it? Okay. First I need you to calm down. Let's not speculate. Let's prepare for different possible outcomes and be ready to discuss developments. The important part is that you calm down and be patient.

if your boss says "he could still look into it" is he just making a threat or is he actually going to possibly look into it? Goddammit.

is it worth it to complain about a cop There are faster ways to get threatened and beaten, but hey, yeah, sure.

because every interaction that a man has with a woman these days can be construed as harassment should men wear body cameras Coming up on the Mark Levin show, right after this break!

do white people have a right to be offended when generalisations are made about them? Yes, white people have the same right — conferred by God and recognized in the Constitution — to be as unproductively sensitive as anyone else.

step 1: respond to the following: many men believe that their “wolf whistles” and “cat calls” are forms of innocent flirting. the textbook, however, suggests that when taken all together, they help to create of a hostile environment for women. using material from the text and techniques of sociological analysis, discuss the pros and cons of this perspective. be sure to respond to at least two of your peers. Okay, so you're not merely trying to get the internet to do your homework for you, you can't even be bothered to reframe the question into a rational search term? On a question like this? Are you planning a career of lying in a vat and selling your organs?

why are lawyers so glamorous I will answer you as soon as I finish sitting on a rock-hard bench next to a trembling meth addict for three hours waiting for a former DA who knew someone who knew the governor wander onto the bench and call my half-minute-long hearing.

popehat mediocre thugs Glamorous mediocre thugs, please.

Trumpeting The Right Not To Be Called A Bigot

Sometimes someone says something about free speech on the internet and I feel like I'm Sonny Corleone, intemperate and easily manipulated into racing off in a frothing rage to my eventual doom at an unpleasant New York toll plaza, which I suppose in this metaphor is Twitter.

I gotta be me.

I have many free speech pet peeves, but few make me twitchier than the argument that criticism is censorship. I frequently bash that argument — which sometimes goes by the name "speech is tyranny!" or "the right not to be criticized" — along with its idiot half-brother, right not to be offended

This week, Trump supporters are offering the argument.

The impetus is Trump's call to block Muslims from entering the country, and the widespread condemnation of it. Not surprisingly, many have called Trump's proposal racist. It's not my purpose today to explore that assertion, or to discuss my general contempt for Trump and his devotees. Rather, I want to highlight what some of Trump's defenders have said in reply. Consider this:

YUR SPEECH BROKE MUH SPEECH

Mr. Riehl is apparently suggesting that Buzzfeed — a private entity — is undermining free speech by suggesting to its private-employee writers how partisan they may be while flying the Buzzfeed flag. Or maybe Mr. Riehl is suggesting that Buzzfeed is undermining speech by encouraging people to call Trump a racist if they want. Those propositions are both ridiculous, albeit in different ways.

Because I hate life and the sun and its warmth and all that is good, I jumped down this rabbit hole of links. The linked Breitbart post by Mr. Riehl, in classic form, suggested that Trump critics are weak and dangerous, and quoted National Review Online's Andrew McCarthy to suggest that calling Trump a racist is part of the "erosion of First Amendment rights in the United States." He further suggests that criticism of speech in America is somehow dangerous because Europeans restrict and punish a wide variety of speech. This makes little sense to me; if I can't criticize speech the Europeans have made illegal there's very little for me to criticize.

I don't think Mr. Riehl fairly portrays what Mr. McCarthy said in the interview; I heard Mr. McCarthy decry European censorship and question the validity and tone of American criticism of Trump but not suggest that it violated Trump's rights. That's because Mr. McCarthy usually isn't completely ridiculous. The Breitbart article, and Mr. Riehl's spin, are.

Let's leave aside the rather obvious question of whether a man easily cowed by being called a racist is suitable to be Commander-in-Chief. The entire concept of speech violating free speech rights is incoherent and unprincipled. Saying that I silence you by calling you a racist is indistinguishable, logically and stylistically, from saying that I've silenced you and breached your safe space by saying something you think is racist. If American Muslims have to put up with Trump saying they ought to be excluded from reentry if they go to Tijuana for the day (and they do), then Trump has to put up with being called a bigot in response. Anything else isn't American civics; it's transparent and moronic partisanship, worthy of nothing but ridicule.

Perhaps Mr. Riehl will demur that he wasn't saying that accusations of racism actually violate legal rights, but that they merely undermine the spirit of "free speech," or create a hostile atmosphere in which frank speech is discouraged. This, too, is indistinguishable from what I'd expect to hear from a sophomore Sustainable Trigger Warnings major at Brown: "your speech silences me and discourages me from speaking." Maybe Brown can offer Trump a safe space.

There are people that assert that Trump's speech should be punished by the government. They're wrong, and their suggestion stands in opposition to the most fundamental American values. If they try to inflict legal consequences on Trump for his bloviation, let's resist them firmly and without quarter.

But you don't fight the imagined right not to be offended by promoting the notion some speech is so hurty that it violates my rights. If we're going to tel other people they have to walk it off when they're targeted with ugly speech, we have to as well. For God's sake, summon a shred of self-respect.