The War For Free Speech Laws, Hearts, And Minds Is Endless

I do not anticipate an end to the war for, or against, free speech in academia. Last week was a bloody one in that struggle.

In California, the Regents of the University of California had an opportunity to wave glorious banners of censorship, blow trumpets, and retreat from the field. Some committee or working group proposed a Statement of Principles Against Intolerance, a dog's breakfast of poorly-defined wrongthink that would be patently unconstitutional if made mandatory. The Statement had what amounted to a censorship-abjuring loophole: it said that it could not "be used as the basis to discipline students, faculty,
or staff," making it more a proclamation of feels than a rule.

But it does not appear that bargain will hold. At a contentious Regents' meeting, several Regents demanded that the policy be be reworked to inflict punishment for violations of the vaguely-worded and generally unprincipled intolerance code. Regent Richard C. Blum threatened that his wife, U.S. Senator Dianne Feinstein, would interfere and make trouble if the Regents didn't commit to punish people for prohibited speech. Meanwhile, students and faculty battled over whether the intolerance statement should adopt the State Department's definition of anti-Semitism and therefore cave to some factions that believe that Jews have a special right to be protected from certain arguments about Israel.

I predict that the University of California will take the wrong path and wind up buying a beach house for some lawyer.

Free speech still has principled support in academia, articulated by leaders who insist that students act like adults. In Nebraska, University of Nebraska-Lincoln Chancellor Harvey Perlman rebuked calls to censor preachers in Nebraska Union Plaza with a forthright call for free expression:

The university does not condone these comments. One would hope that the campus could enjoy intellectual disagreements without this type of rhetoric. Nonetheless, as far as we can determine the speakers were within their First Amendment rights of free speech. We have designated the plaza outside the Nebraska Union as a place where provocative speech can be conducted without disruption of the ongoing activities of the university.

. . . .

We all have the option to avoid the plaza if we neither want to hear nor be subjected to this type of language. In the end, we are fortunate to live in a free society where speech is protected, regardless of how offensive or provocative it might be.

At Wesleyan, when the student paper printed a controversial op-ed questioning the Black Lives Matter movement, University President Michael Roth defended the paper's right to print it and rejected demands that it be punished:

Some students not only have expressed their disagreement with the op-ed but have demanded apologies, a retraction and have even harassed the author and the newspaper’s editors. Some are claiming that the op-ed was less speech than action: it caused harm and made people of color feel unsafe.

Debates can raise intense emotions, but that doesn’t mean that we should demand ideological conformity because people are made uncomfortable. As members of a university community, we always have the right to respond with our own opinions, but there is no right not to be offended. We certainly have no right to harass people because we don’t like their views. Censorship diminishes true diversity of thinking; vigorous debate enlivens and instructs.

The existence of a few principled allies in the war for free speech is heartening. The existence of foes like Regent Blum (and his wife, a U.S. Senator) is not. But most disheartening of all is the recognition that in fighting for free speech we struggle against an army of child soldiers. At Wesleyan, students responded to their Presidents' example with arguments that free speech should be suppressed because it "silences" other speech and that permitting expression of viewpoints they don't like is a "coward's approach." At the student paper, editors wrote a cringing apology for having offered an offensive viewpoint. Will that paper allow a substantially non-conforming viewpoint in an op-ed again? I fear it will not.

The child soldiers — young people devoted to using official power to punish ideas they don't like — are terrifying because they seem so divorced from core American values like liberty, freedom of conscience and expression, and individual responsibility. Let's not forget that's our own damned fault.

Willful Paranoia: The Classic Excuse for Willful Paranoia #IStandWithAhmed

American lives are controlled by the thuggishly mediocre. The best measure of their control is this: when called out on their mediocre thuggery, they can comfortably double down.

Ahmed Mohamed, a bright and curious ninth-grader in Irving, Texas, learned that to his regret this week.

Ahmed made a clock. He likes to make thing and repair things and tinker with things, apparently. Last weekend he built a digital clock out of a circuit board and a power display and a digital display. There is, I suppose, a chance that I could do that without electrocuting myself, but I wouldn't bet on it.

In his head, Ahmed lives in an idealized world he learned about in robotics club: a world where individuality and curiosity and initiative are appreciated. Or at least he did. But this week he found out that he actually lives in a different world, a grim real world controlled by school administrators and cops who are deeply suspicious of individuality, if not openly hostile. Ahmed lives in a world where children's lives are limited by the stupid, ineffectual fear of the petty and the ignorant. He lives in a world where school administrators strip-search thirteen-year-old girls to look for ibuprofin and suspend eight-year-olds for making pretend finger-guns while playing cops and robbers. He lives in a world where police arrest seven-year-olds for bringing a nerf gun to class and perp-walk twelve-year-olds in front of their peers for writing "I love my friends" on a desk with a marker.

In that world, Ahmed's clever clock didn't earn him admiration. It earned him a trip to the principal's office, a contemptuous and skeptical interrogation by an officer of the Irving Police Department, a suspension, and a trip in handcuffs to a juvenile detention center — because a circuit board with a time display must be a bomb, or at least intended to look like a bomb.

Actually nobody thought the clock was a bomb. The school didn't think it was a bomb. The police admitted they never thought it was a bomb. The police admitted Ahmed never suggested it was a bomb, or that he meant for anyone to think it was anything but a clock. But grown-ups detained, interrogated, arrested, and handcuffed Ahmed because they couldn't conceive of why a kid would build his own clock:

“We have no information that he claimed it was a bomb,” McLellan said. “He kept maintaining it was a clock, but there was no broader explanation.”

Asked what broader explanation the boy could have given, the spokesman explained:

“It could reasonably be mistaken as a device if left in a bathroom or under a car. The concern was, what was this thing built for? Do we take him into custody?”

Did the putative adults pestering Ahmed do it because his name is Ahmed Mohamed and he's brown? Maybe. “Yup. That’s who I thought it was,” said one officer mysteriously upon seeing him. But on the other hand, this is the era of zero tolerance and of institutionalized paranoia and of petty little people using fear to hold on to power. This is what our kids' lives are like, and we've decided to accept it. Schools are safer now than before, but we've decided to feed on the fear the media feeds us and accept that they are more dangerous, justifying harsher treatment of kids. Kids are safer than ever, but we've consented to being constantly terrified about various menaces to them. Cops are safer, but we've decided to accept their narrative that they are the targets of an unprecedented war, and hand them the power they say they need.

My mother was a school administrator, and there are many decent and concerned school administrators. But to be blunt, school administrators were generally not the kid who built his or her own clock at 14. (Cops were generally the kid who beat up the kid who built the clock.) There are two ways for school administrators to deal with the unfamiliar, the unknown, the different: they can try to learn about it, and even nurture it, or they can react to it with fear and suspicion. We've told school administrators and police "we choose fear, and we want you to choose fear too."

Cops and school administrators are utterly confident in our support when they abuse someone like Ahmed. You can see it in the response of principal Dan Cummings:

I recommend using this opportunity to talk with your child about the Student Code of Conduct and specifically not bringing items to school that are prohibited. Also, this is a good time to remind your child how important it is to immediately report any suspicious items and/or suspicious behavior they observe to any school employee so we can address it right away. We will always take necessary precautions to protect our students.

In other words, faced with a freakish overreaction by the school, and the suspension and detention of a student for building a clock that nobody ever thought was dangerous, the school's response is to remind students that some items are prohibited (even though nobody says the clock was), and to exhort students to report "suspicious" items and behavior. In response to a public saying "you're paranoid," the school's response is "you're goddamn right I am, and you should be too."

When I was a kid, schools and cops generally didn't do anything about bullying. Now they profess to be very concerned about it, and there are elaborate programs in place that purport to combat it. But educators and cops either don't grasp, or don't care, that their culture of fear encourages bullying. Detaining and humiliating a geeky kid who built a clock, and following up with a self-justifying "if you see something, say something" warning, sends an unmistakable message: different is suspicious. That's a bully's attitude, too.

We're expected to give cops and administrators the benefit of the doubt. I don't: I think they are like any other human beings. There are some good and some bad. Some care, and some are doing what they do to increase their own power. But even the well-intentioned who participate in a culture of fear are blameworthy. To them, I say this: you say you're trying to protect our children. But instead you've devoted your career to making the world a worse place for them.

Terrorist clock? Or birth of a new libertarian? DON'T FEED THE WOODCHIPPER!

Terrorist clock? Or birth of a new libertarian? DON'T FEED THE WOODCHIPPER!

Lawsplainer: What's Going On With That Troll Joshua Goldberg, Anyway?

Ken, you need to explain the Ninth Circuit's decision about the interaction between Section 512(f) of the DMCA and fair use law, particularly in the context of surviving motions to dismiss or summary judgment.



You can't make me.

Fine. God. You're such a child. Will you write about SOMETHING please?

. . . . maybe.

Like what?

Joshua Goldberg.

The multi-faced troll the feds just arrested? The one everyone wants to pin on "the other side" of whatever argument they're having?

yes him

Seems kind of a cop-out to me. But fine. What's he charged with, and how?

The feds — more specifically, the U.S. Attorney's Office for the Middle District of Florida — have filed a criminal complaint charging Goldberg with one count of distributing information about explosives and destructive devices.

Only one count?

It's only a complaint. See, in the federal system, prosecutors can seek a complaint — an accusation approved by a U.S. Magistrate Judge, based on the probable cause demonstrated in a written and sworn affidavit by a federal law enforcement officer — or get an indictment, which is an accusation issued by a grand jury.

But unless they plead immediately, all federal defendants charged with felonies are entitled to be charged by grand jury indictment. So if you're looking to arrest someone based on a complaint, you don't necessarily have to throw all of the charges in there — you'll have the chance to throw more in when you draft an indictment and go to the grand jury.

So he could get charged with more later?

Sure, if they've got the evidence.

Right now he's charged with one count of distributing information about things that go boom under Title 18, United States Code, Section 842(p).

What's that when it's at home?

It's a statute making it illegal to teach people how to make bombs so they can use them in a crime, basically:

(2)Prohibition.—It shall be unlawful for any person—

(A) to teach or demonstrate the making or use of an explosive, a destructive device, or a weapon of mass destruction, or to distribute by any means information pertaining to, in whole or in part, the manufacture or use of an explosive, destructive device, or weapon of mass destruction, with the intent that the teaching, demonstration, or information be used for, or in furtherance of, an activity that constitutes a Federal crime of violence; or

(B) to teach or demonstrate to any person the making or use of an explosive, a destructive device, or a weapon of mass destruction, or to distribute to any person, by any means, information pertaining to, in whole or in part, the manufacture or use of an explosive, destructive device, or weapon of mass destruction, knowing that such person intends to use the teaching, demonstration, or information for, or in furtherance of, an activity that constitutes a Federal crime of violence.

Hmm. So it criminalizes teaching about things? Could that be a First Amendment violation?

Some will say so, but I don't think it's a very strong argument. Notice that the crime requires that the defendant intend that the information be used in a federal crime of violence. A federal court in San Diego considered a First Amendment attack on the statute and rejected it on that basis:

The specific focus of the statute is not on mere teaching, demonstrating, or disseminating information on how to construct a destructive device, but upon teaching, demonstrating, or disseminating information with the specific intent that the knowledge be used to commit a federal crime of violence.

Courts have upheld similar statutes so long as they require that the defendant intended to further an illegal act.

How are they going to prove what Goldberg intended? He's a troll. The whole point of his existence is saying things he doesn't mean.

Well, their case got a hell of a boost when Goldberg effectively confessed to the elements of the crime.

The complaint and supporting affidavit are here. The feds say that Goldberg provided bombmaking information to be used in a terrorist attack on a Kansas City September 11 memorial. The feds have a confidential informant posing as a potential domestic terrorist, referred to as "CHS" in the complaint. They monitored communications in which Goldberg encouraged CHS to engage in a terrorist attack using bombs at the Kansas City memorial, and sent him links to pages with instructions for making bombs, and suggested what sort of shrapnel to use in the bombs.

Now, Goldberg could have engaged in the troll's typical defense — that he knew that CHS wasn't a real terrorist and was stringing him along. I wouldn't want to go to a jury with that, but it's colorable. But Goldberg blew that defense by talking to the FBI when they raided his house:

JOSHUA GOLDBERG admitted that he provided that individual with information on how to manufacture bombs. JOSHUA GOLDBERG further admitted that he believed the information would create a genuine bomb. Specifically, JOSHUA GOLDBERG stated that he provided the individual with instructions on how to create a pressure cooker bomb. When creating the pressure cooker bomb, JOSHUA GOLDBERG admitted that he instructed the individual to include nails and to dip the nails in rat poison. JOSHUA GOLDBERG also admitted that he instructed the individual to place the bomb at an upcoming memorial in Kansas City, Missouri that was commemorating the September 11,2001 attacks. JOSHUA GOLDBERG stated that he believed that the individual did intend to create functioning bombs and would actually attempt to use them to kill and injure persons. During the course of the interview, however, JOSHUA GOLDBERG made varying statements in an attempt to explain his actions in providing bomb making information to the individual. In general, JOSHUA GOLDBERG claimed that he intended for the individual to either kill himself creating the bomb or, if not, that he intended to alert law enforcement just prior to the individual detonating the bomb, resulting in JOSHUA GOLDBERG to receive credit for stopping the attack.

So. By failing to shut up — which one should always do when confronted with federal agents, at least until one gets legal advice — Joshua Goldberg has made the government's case dramatically stronger.

Is this going to be another case where there was never going to be any terrorist attack because the defendant was dealing with a government agent all the time?

Sure looks that way.

So, how much time could he do?

The statutory maximum for the charged crime is 20 years. But, as Popehat readers know, his sentence will be calculated using the recommendations of the U.S. Sentencing Guidelines; the statutory maximum is only a ceiling and usually has little to do with the actual sentence. Plus, the feds will probably load more charges on when they indict.

We have very little information, and we don't know the final charges yet. But it appears to me that under the applicable guideline, taking into account only what's in the complaint, his recommended sentence will be very substantially less than 20 years. As currently charged, it's more like a couple of years if he pleads guilty. Of course, a judge can go above the guidelines, and may well do so in a case this vivid.

So. What's next for him?

He appeared in court and his Public Defenders agreed that he would stay in custody pending a bail hearing. That's often, though not always, a sign that the defense thinks they have a tough argument to get him out on bail. He's entitled to bail unless the government can show that's he's a danger to the community or flight risk in ways that amount and conditions of bail cannot address.

Normally, the next step would be for the feds to indict him, and for him to enter a not guilty plea on the indictment. But today apparently he got new lawyers and the U.S. Magistrate Judge ordered him to be evaluated for competency to stand trial.

What? He's trying an insanity defense?

Not necessarily. Competency is different than insanity. The insanity defense goes to whether the defendant can be held responsible for his actions. A competency exam assesses whether the defendant is even competent to stand trial — that is, whether as a result of mental illness he's "unable to understand the nature and consequences of the proceedings against him or to assist properly in his defense."

So if he's incompetent, he walks without even going to trial?

Oh no. First he gets evaluated at a federal psychiatric facility for up to 30 days. There's one in Springfield, Missouri, for instance. Then, if the judge finds by a preponderance of the evidence that he's competent, he stands trial. If the judge finds him not competent, he gets sent back to the federal psychiatric facility for up to four months to see if they can make him competent using drugs and therapy. Then he gets sent back for another assessment, and maybe more therapy and drugs, and so forth. He's in custody the whole time. Eventually, if it looks impossible to make him competent but he's still adjudged dangerous, he can be committed long-term.

The process of being shipped to a place like Springfield, and "treated" there, and returned, is notoriously unpleasant. I think I might prefer to get tried and sentenced. I mean, assuming I helped people make bombs or something.

What do you anticipate happening next?

He'll be back in 30 days, or longer if the parties agree to a longer time. The judge will make a determination of his competency, which the parties may or may not contest. Then, anything can happen. Remand to treatment if he's not competent, a guilty plea to minimize exposure, trial, and everything in between.

By the way, if his competency is in question, if I were his lawyer, I'd be thinking about whether I could get his confession thrown out. It's not a Fifth Amendment violation to take a confession from someone who is incompetent; a defendant still has to show police coercion. But a defendant's lack of competence can be one factor in determining whether law enforcement coerced a confession. It's worth a look for his defense.

Is that all?

For now.

Now do the DMCA case!

Bite me.

A Market Solution To Academic Snowflakes

For years I've been grumbling about the rise of the imagined right not to be offended.

It's not going away. If anything, feelings of entitlement not to be offended are growing, especially in academia. The University of California is considering enshrining a right to be free of "expressions of intolerance," defined as meretriciously as you'd expect. Chancellors of great universities announce that free speech requires feeling safe. Too many students seek not just to disagree with ideas but to prevent ideas they don't like from being uttered in their safe spaces at all.

Plenty of folks and institutions — the Foundation for Individual Rights in Education, for example — are devoted to pushing back against this attitude.

But what if they're taking the wrong approach? What if the market is the right way to deal with the imagined right not to be offended?

Snowflake U.

Imagine a world in which the market lets people decide whether to be special snowflakes — people wtih an actual protected right not to be upset or offended.

As the University of California's proposal shows, the legions of school administrators are perfectly capable of creating Snowflake Schools, where the administration vigorously defends students' rights to be free of offense. What if we let them?

Take, let's say, Brown University. They're already on FIRE's red light policy list, and frankly I enjoy making fun of them. Brown could decide to take on the mantle of a Snowflake School. It could openly declare that its students have a right not to be offended. It could enact policies accordingly, and discipline students and faculty who cause any offense through their speech and actions. Brown could display the snowflake symbol on their letterhead and web page. They could even vigorously rebrand themselves to attract students who don't want to be offended — I don't know, they could rename their teams The Blizzards or something.

Students, staff, and academics could then vote with their feet. Do I want to go to an acknowledged Snowflake School? Maybe I do, and will wear the snowflake badge proudly. Maybe I don't — either because I don't want to get expelled for offending someone, or because I'm embarrassed to go someplace that marks me as a snowflake.

Other people could vote, too. Do I want to hire someone who chose to go to a Snowflake School? You might, but I wouldn't. Do I want to date a Snowflake? Do I want a doctor, a lawyer, an accountant who wears a Snowflake U. sweatshirt?

The Department of Snowflake Studies

But wait! Isn't the snowflake/non-snowflake decision too binary, you ask? Won't schools that make a choice always be riven by snowflake vs. non-snowflake conflict, with some schools lurching back and forth?

Perhaps. That's why we can implement market forces within schools as well.

Imagine: "Snowflake Choice" schools have a Snowflake Registry. Students, staff, and academics can choose to sign up for that registry, or refuse to. Only folks on the registry can assert a right not to be offended, and pursue offense-related grievances. If you're on the Snowflake Registry, you are subject to full punishment for causing offense. If you're not on the Snowflake Registry, you're subject to punishment only with respect to self-selected Snowflake Classes and Snowflake Activities and Snowflake Departments. You might get kicked out of Professor Feels' classes but not Professor Grownup's classes.

Once again, this lets market forces take hold. Do I want to take history from a professor on the Snowflake Registry, knowing I can get kicked out of her class if I offend someone? Or do I want to sign up for a class taught by a professor not on the registry? Do I want to major in a Snowflake Subject, or a non-Snowflake subject?

Transcripts, naturally, would reflect status. I'd be able to see if a job applicant only took classes from Snowflakes, and act accordingly. I'd be able to see if an applicant's major was in a Snowflake Department. I'd be able to notice if a student got all As from non-Snowflake teachers but Cs from Snowflake-teachers, and draw appropriate conclusions.

Every Snowflake Is Unique

A few caveats are important. First of all, non-Snowflake status would not be a defense to accusations of genuine misconduct. A physical assault is not mere offense, nor is a true threat.

Second, Reverse-Snowflakes would find no solace. A Reverse-Snowflake is someone who thinks they have a protected right not to be told they're offensive, someone who thinks that they have a right not to be called an ass when they act like an ass. That's whingy and unprincipled nonsense. Such people should sign up for a Snowflake School, since that's what they fundamentally are.

Let A Thousand Snowflakes Melt

The virtue of this approach is choice. The struggle between Snowflakes and Non-Snowflakes would remain, but rather than a struggle to control institutions to impose their viewpoints, it becomes an individual struggle.

Non-Snowflakes may worry that the market would operate in a way they don't like — that the market would favor Snowflake Schools and Snowflake Majors and huge drifts of graduating Snowflakes. Maybe. But if that's the case, do we deserve any better?

It's Not Politically Correct To Say, But People Who Say "It's Not Politically Correct To Say, But . . ." Are Generally Assholes

What, exactly, do people mean to signal when they preface a comment with "I know this isn't politically correct to say, but . . ."?

It is boasting? "Please acknowledge that I am brave, a rebel, a nonconformist, by being willing to say the following in defiance of social convention." Is it special pleading? "I recognize that the following may be considered rude, but please pretend that it is not because I have acknowledged it." Is it lampshading? "You can treat this as not-rude because I have pre-announced that it could be seen as rude." Is it strawmaning? "Nobody would actually be offended by what I'm about to say, but I'm going to pretend that some people will in order to paint them as ridiculous." Is it self-serious cross-climbing? "Contemplate, for a moment, how I will suffer for being willing to share great truths with you."

[Read more…]

OMG! Broad, Flexible, Plaintiff-Friendly Law Used In Unanticipated Manner!

California's Unruh Civil Rights Act, a 1959 law named after a powerful California politician, was a precursor to the federal 1964 Civil Rights Act. It prohibits businesses from discriminating against folks based on specified attributes, currently including sex, race, color, religion, ancestry, national origin, disability, medical condition, genetic information, marital status, or sexual orientation. It is, by design, a very broad and flexible tool, and has repeatedly been interpreted to protect groups and classes beyond those listed explicitly. Defendants found liable can be ordered to pay up to three times the actual damages the plaintiff suffers (and no less than $4,000), and can be ordered to pay the plaintiff's attorney fees. A losing plaintiff can't be ordered to pay a winning defendant's attorney fees, with certain narrow disability-law exceptions.

Recently the Unruh Act provoked outrage. Why? Because this broad, flexible, and unilateral law was invoked creatively by the wrong people. Here's how The Mary Sue put it:

Some Jerks Used a 56-Year-Old Anti-Discrimination Law to Shut Down “Women in Tech” Group

Yahoo! "News" was even more indignant:

These men's rights activists are using a 1950s law to shut down women in tech

What happened? Let Yahoo! describe it:

Two men named Allan Candelore and Rich Allison, who had each prepaid a $20 registration fee on the Chic CEO website, tried to enter the restaurant. According to a legal complaint that they later filed with National Coalition for Men president Harry Crouch, Burns turned them away at the door, saying the event “was only open to women.” They took a photo, left the premises, then promptly initiated legal action, turning to a 1959 California law originally written to prevent discrimination against minorities and women.

According to The Mary Sue, this was enough to ruin Chic CEO, an outfit organized to support women in tech:

How much did that lawsuit end up costing them? $510,000. [edited to add: my clumsy quoting here made it seem that the Mary Sue was talking about this lawsuit with that number; they were talking about another one. Follow the link to see the context.]

It’s not clear how much the out-of-court settlement cost Chic CEO, but it was enough to virtually drive them out of business.

The Mary Sue is outraged that a civil rights law is being "twisted" by men, and aghast that the legal system allows meritless claims to extort compliance:

Frankly, the lawsuits are ridiculous. But more than that (so much more than that), there’s a special kind of insult in taking an anti-discrimination law intended to protect marginalized people and twisting it to “protect” those least in need of protection. It’s sad, to be honest, that men’s rights activists (ughh) can exploit something like that to effectively shut down organizations and companies like Chic CEO trying to improve female representation in tech and other industries.

The threat of a lawsuit is usually enough to shut a company down, even if the company stands a good chance of winning in court, simply for one reason: it costs less to settle than it does to fight in court. With the knowledge of a likely easy settlement, plus precedent on their side, how messed up is it that this is a weapon that can be used to stamp out organized attempts at improving representation before it even begins?

No shit.

Here's the thing: if you only wake up to how broken the system is when it's abused by one of your ideological enemies, you're a vapid partisan hack. The legal system — including, but not "only" or "especially" civil rights laws — is a tool of extortion, deceit, and thuggery. I've seen nothing in my 21 years as a lawyer to make me think that civil rights plaintiffs are any more likely than other plaintiffs to abuse the system. But some laws lend themselves to abuse — like laws that are deliberately broad, deliberately flexible, and that award attorney fees only to prevailing plaintiffs, removing all deterrents against frivolous suits and piling on incentives to cave to extortion. The result is a system that's profitable for lawyers, mediocre for individual plaintiffs, and a constant burden on potential defendants in a way that utterly fails to distinguish between wrongdoers and the innocent.

If you're only irritated by this when a group of Wrong People target a group of Right People, you're not to be taken seriously.

In Re: Writ of Pony


My name is Meggie. I am a writer and I have contributed to various blogs. I wanted to talk to you about contributing an article on your blog.

I’ve been working on a couple different articles that I think your audience would find enlightening. I’m curious to know which one you think might be a better fit:
Neighbor Lawsuits For Nuisance And The Fear Of Future Injury
California Real Estate Law: The Perpetual Lease

Whichever one you pick, I can have completed and ready to go in a timely fashion. Feel free to shoot me an email about either of these (or another topic altogether) and we can get the ball rolling.

Thanks for your time,

Meggie Haneckow
Gtalk : meggie.haneckow


This is a friendly follow up message in regards to my last email.

I have some good article's those will be best for your blog.

Let me know if i can send you for review.


My dear Ms. Haneckow,

I apologize for not responding to your previous email. I was fully engaged fortifying the southern portion of my property against certain threats raised by an eight-year-old neighbor's "birthday party."

Your inquiry intrigues me, and comes at an ideal time. Land use — and the limitations thereon imposed by civilized and prudent Americans — is a topic of increasing interest to our readers. The one about nuisance lawsuits particularly appeals — though the issues that concern me are, I fear, not adequately captured by such a gentle term.

Would it be possible to discuss a slight modification of focus — a sharpening, if you will — of the proposed article?

Very truly yours,

Ken White

Hi Ken

Thanks for the email.

I am happy that you have suggest your own topic.

I will get an article written on Land use — and the limitations thereon imposed by civilized and prudent Americans.. and I will share it with you once I complete it.

Please allow me 2-3 days for the same. Hope you don;t mind. :)


Dear Meggie:

Wait! Stop! We haven't yet discussed the specifics!

I spoke only in the general, Meggie, to see if you might be open to exploring specifics — to see if you dared trod softly where rank peril capers.

Meggie, can you write about how land use jurisprudence can be employed to stand against the Pony Menace?

To date our feeble, milky courts have failed me, Meggie. When I come to them asking that they issue writs prohibiting the presence of ponies in our community, they scoff and demand that I produce "evidence." When I produce it — in heaps, in great drifts of paper, in reams, Meggie — the judges step closer to their bailiffs and say that I have not produced evidence of the nuisance caused by the specific pony I am complaining about.

This suicidal punctiliousness will spell our doom, Meggie. Specific evidence? Ludicrous! If I proposed to place a loaded handgun into the hands of a sweet young child, would you hem and haw and say "well, that particular handgun has not been proven to be dangerous." NO! You would snatch the handgun away and hustle the child off to some safe linen closet or attic space. Read Marcus Aurelius, Meggie. "This thing, what is it in itself, in its own constitution? What is its substance and material? And what its causal nature? And what is it doing in the world?" Ponies are in this world to rend, Meggie. They are in themselves death, and with them comes the substance and material of misery, and suffering, and hoofprints on the carpet.

So: your guest post, should you wish to write it, must address how we can establish binding precedent that ponies are an inherent nuisance, a self-evident dangerous condition that should not be permitted in any locale zoned for residential or light commercial use. Let them have the bleak high places and the grim deserts and the remote fastnesses. I suppose that a measure of patriotism would permit our brave military forces to continue their attempts to weaponize ponies, but let such efforts continue in forsaken bases like Area 51 and Baltimore.

Moreover, I must insist that your article address how just and proper prohibition on ponies may be expanded to cover what I term pony program related activities. Would we tolerate a television program that taught our children that it is a "hoot" or a "gas" to turn on the stove and press their pink little hands firmly upon the burner? No we would not. Not even on basic cable. So — with the menace of ponies a given, an acknowledged prime mover of woe — how do we permit their continued glorification? There are shows that celebrate ponies and portray them as trustworthy, entertaining, and sympathetic, Meggie. No, I was shocked as well. And there are pony toys. Toys, Meggie. Now, I could see the utility of a pony toy that abruptly snaps tiny jagged teeth onto the fingers of unwary children. Toys should teach a lesson, like that Operation game and lawn darts. But the only lesson these toys teach is to warmly embrace the utter destruction of our culture. What kind of toy is that? Would we allow the manufacture of a whimsical silky-haired Mr. My-The-Fluids-In-Jugs-Under-The-Sink-Taste-Delicious? Would we employ a notorious rapist to soothe our children with sweets? No. Ridiculous. Land use law must change, Meggie. It must change to acknowledge not just the menace of ponies, but the menace of the Pony Fifth Columnists and all of their accoutrements.

So. This is grim, I know. It is not the happy, carefree piece on land use regulation that you hoped to pen. Are you equal to it, Meggie? Are you the one to write the Anti-Pony Land-Use Modification Court-Instructions Despite Various Restraining Orders manifesto?

God go with you.


A Tale of Two Consequences For Censorious Asshattery

The wheel turns slowly, my friends — but it turns.

Here are two stories of the wheel grinding down censorious jackasses.

Mayor Jim Ardis Costs Peoria Taxpayers $125,000 Plus Legal Fees

Remember Peoria Mayor Jim Aris? He's the jackass who took offense to a satirical Twitter account and used a crony cop and a compliant judge to get a search warrant to harass the satirist.

Now Peoria has agreed to pay $125,000 to settle the satirist's civil rights suit. Peoria taxpayers foot that bill, along with the no doubt much larger legal bill for the city's lawyers.

Now, Jim Ardis doesn't face financial consequences personally. But there's hope he'll suffer long-term reputational and political consequences:

The actions against Daniel unleashed a torrent of negative backlash directed at Ardis and the police, a controversy dubbed "Twittergate" by many in the central Illinois community. Daniel's lawsuit against Ardis and several city officials accused them of violating his First and Fourth amendment rights. Legal experts said political satire is a protected right of free speech.

The settlement also requires Peoria to issue a directive to its Police Department saying the law prohibiting the impersonation of a public official — the same statute the city tried to use against Daniel — does not apply to satire.

Please join me in proclaiming that #JimArdisIsAnAss.

MedExpress Ordered To Pay Lawyers Who Responded To the Popehat Signal

You may remember that in 2013 I put up the Popehat Signal to seek Ohio lawyers willing to fight back against Med Express, an Ebay seller filing frivolous lawsuits attacking people for bad reviews. Jeff Nye and Tom Harren stepped up. Your rights, and mine, depend upon lawyers like them doing things like that.

Working together with Paul Alan Levy at Public Citizen, they defeated MedExpress and convinced a court to order MedExpress to pay their fees. Paul has the story here. It's very hard to get courts to award attorney fees as a sanction for frivolous litigation. But it's great when it happens. Jeff and Tom deserved to get paid for their efforts, and the sanction should help act as a deterrent against other thuggish plaintiffs.

Satire vs. Potentially Defamatory Factual Statements: An Illustration

Earlier today, author John Scalzi posed this question:


I am incapable of passing a question like this without answering it. Moreover, as luck would have it, I just finished a brief on the subject yesterday.

So: here is the short answer. The book title is almost certainly parody protected by the First Amendment, because an audience familiar with the circumstances would recognize it as parody and not as an assertion of fact.

Now: cry havoc, and let slip all the ones and zeroes.

The book cover — here on Amazon — has its roots in an ongoing war of words between Theodore Beale, self-styled as Vox Day, and John Scalzi. I will spare you an assessment of who started it or who is continuing it. Nor will I discuss at any length how I generally like Scalzi and his writing (though he's considerably to the left of me) and how I hold Beale and his admirers in low esteem. That's my bias.

Some time ago, Scalzi wrote an essay in the voice of a rapist thanking conservative politicians who seek to limit the ability of rape victims to secure abortions. Nobody rational could interpret it as Scalzi admitting to rape. Whether you agree with it or not, it's clearly a satirical broadside against a particular political viewpoint that parses which rapes are "legitimate" and which aren't.

Beale and his admirers, as a rhetorical device, launched a tendentious and tiresome meme treating the piece as serious and accusing Scalzi of actually having done the things he talked about in the satirical piece. Scalzi discussed it here.

Amazon self-publishing has become a popular method of pandering to audiences. Recently various figures have begun publishing elaborate manuals on how brave people can stand up to the terrible Social Justice Warriors who will mock and criticize them and such. To me this is a paradox: if you need a manual to stand up, no manual will help you. But never mind that. This e-book — titled "John Scalzi is a Rapist," and echoing various memes that Beale followers like — is part of that trend.

Here's why it's almost certainly protected parody.

The Law

Only a statement of fact can be defamatory. “Rhetorical hyperbole,” “vigorous epithet,” “lusty and imaginative expression of contempt,” and language used “in a loose, figurative sense” are all protected by the First Amendment. (Greenbelt Pub. Assn. v. Bresler (1970) 398 U.S. 6, 14.)

How do you tell the difference? A court will look at the "totality of the circumstances" — that is, not just the statement in isolation, but all the facts and circumstances surrounding and leading to it. The court will also look at the statement in the context in which it was made, not in the abstract. Finally, the court will look at the statement from the perspective of the audience to which it was directed, taking that audience's knowledge and understanding into account. (Seelig v. Infinity Broadcasting Corp. (2002) 97 Cal.App.4th 798, 809-10.)

That's why satire and parody are protected even when directed at a fairly narrow audience. For instance, when the proprietors of WorldNetDaily sued Esquire for a parody suggesting they were withdrawing one of their birther tomes, Esquire won because the piece was viewed from the perspective of someone familiar with Esquire's history of satire and WorldNetDaily's history of nuttery, not from the perspective of a person encountering all these figures for the first time. Similarly, my post about the case is protected satire even though I made up excerpts from the D.C. Circuit opinion suggesting that WorldNetDaily staff routinely molests walruses.

Many other factors also contribute to determining whether something should be treated as hyperbole, insult, and satire or as a statement of fact. Those include the tone (measured tones are more likely to be taken as fact, fiery and bombastic tones as opinion), anonymity (anonymous or pseudonymous statements are less likely to be treated as factual), the formality, the intelligibility, whether it is labeled as fact, whether the author suggests a basis for knowledge or evidence to support the statement, whether the statement is specific rather than general, and whether the statement is in the context of a dispute that one would expect to generate heated rhetoric. California courts have recognized that internet dwellers are less likely to view statements online as assertions of actual fact, especially when they are in a forum known for bloviating. That doesn't mean that everything on the internet is automatically opinion rather than fact: things on the internet can still be treated as fact when they contain factors like assertions of lack of bias, assertions of specialized knowledge, labeling as fact, specifics, signals of reliability and factual nature, etc. (Bentley Reserve L.P. v. Papaliolios (2013) 218 Cal.App.4th 418, 433.)

So. If someone wrote an article saying "Ken White's legal analysis should be disregarded because dresses up in a rubber suit on the weekend and hunts ponies with a handmade crossbow," and says it on their trash-talking blog, to an audience that knows them and knows about my blogging here, it's almost certainly parody, because the relevant audiences would be familiar with our in-joke about responding to spam emails with rants about ponies and would therefore not take it seriously.

The Facts Here

Here the factors point very strongly to the book being treated as parody, and protected by the First Amendment, rather than as a defamatory statement of fact. With all respect to Scalzi, his question is wrong: you can't analyze the book title in isolation. You have to look at it in the context of the whole. In that context, the intended audience (both fans of Beale and fans of Scalzi) would recognize it as a reference to Beale's tiresome meme. Plus, the Amazon description explicitly labels it as "a blazingly inventive parody," and the descriptive text is mostly nonsensical and evocative of ridicule of "SJW" concerns, and references some of the topics that anger Beale's coterie in connection with Scalzi like the Hugo Awards.

I think this one is protected parody, and I don't think it's a very close call.

Could the meme be defamatory if uttered in a different context? Yes, potentially.

Patterico Prevails: Vexatious Legal Attack on Speech Fails

For the last few years I've had the privilege of acting as pro bono counsel for Patrick Frey, who blogs as Patterico, in defense of a thoroughly frivolous federal case filed to censor his speech. That's given me the invaluable opportunity of working with the redoubtable Ron Coleman as co-counsel both in the district court and the Ninth Circuit. You can catch up on the legal issues in the case here and here.

Now, after years of litigation, I'm pleased that the case has ended successfully for Patrick. As Patrick announced yesterday, he and plaintiff Nadia Naffe have settled the matter for a walk-away. Patrick retracted nothing and paid nothing, and only waived his fees and costs, and Naffe dismissed the case with prejudice — meaning it can't be refiled.

It's both a good thing and a bad thing. It's a good thing because it's the right result: the case was a blatant politically motivated attack on protected speech. It's bad because it took so much time and work. The flaws in the system it exposed are too extensive for one post, but one thing stands out: the case highlighted the need for a federal anti-SLAPP statute that makes it harder for vexatious litigants to abuse the federal court system. You can track the progress of various proposed anti-SLAPP statutes here. If you want to help make this sort of abuse harder, consider becoming a vocal supporter of state and federal anti-SLAPP statutes. Write your representatives.

Thanks are due to Ron, for leadership and exceptional skill, to Eugene Volokh, for a very strong amicus brief before the Ninth Circuit, and to Patrick, for perseverance and principle.