Gawker, Money, Speech, And Justice

Gawker delenda est.

Gawker has occasionally provided quality journalism and entertainment. That doesn't stop me from despising its amoral and repulsive ethos. Gawker's utter destruction produces a feeling of glee in my guts but disquiet in my heart. As I've written before, I'm not sure that the ruinous verdict against Gawker was just, I don't think that the amount of damages awarded was defensible, and I'm concerned that the result was a product of the brokenness of our legal system.

But observers seem eager to push the wrong message about that brokenness. The scary part of the story isn't that the occasional vengeful billionaire might break the system and overwhelm even a well-funded target with money. Such people exist, but getting sued by them is like getting hit by lightning. No, for most of us the scary part of the story is that our legal system is generally receptive to people abusing it to suppress speech. Money helps do that, but it's not necessary to do it. A hand-to-mouth lunatic with a dishonest contingency lawyer can ruin you and suppress your speech nearly as easily as a billionaire. Will you prevail against a malicious and frivolous defamation suit? Perhaps sooner if you're lucky enough to be in a state with a good anti-SLAPP statute. Or perhaps years later. Will you be one of the lucky handful who get pro bono help? Or will you be like almost everyone else, who has to spend tens or hundreds of thousands of dollars to protect your right to speak, or else abandon your right to speak because you can't afford to defend it?

The system isn't just broken for affluent publications targeted by billionaires. It's broken for everyone, and almost everyone else's speech is at much greater risk. Don't point to Peter Thiel as an exception. He's just a vivid and outlying expression of the rule.

Lawsplainer: No, Donald Trump's "Second Amendment" Comment Isn't Criminal

Donald Trump, against all advice and rumors of pivot, will continue to be Donald Trump. Today, at a rally, he uttered a line that some have taken as a suggestion that Hillary Clinton (or possibly judges) could or should be killed if they did not support Second Amendment rights:

At a rally here, Mr. Trump warned that it would be “a horrible day” if Mrs. Clinton were elected and got to appoint a tiebreaking Supreme Court justice.

“If she gets to pick her judges, nothing you can do, folks,” Mr. Trump said, as the crowd began to boo. He quickly added: “Although the Second Amendment people — maybe there is, I don’t know.”

Trump's staff quickly issued a press release saying that this comment was merely a reference to the vigorous political activism of Second Amendment fans, not to violence. I express no opinion about what Trump "meant": I think trying to parse his Joycean ramblings is usually pointless.

But let's say we choose to interpret this as Donald Trump suggesting that, if Clinton appoints judges hostile to the Second Amendment, she or the judges could be shot.

Is that a crime? Is it outside the protections of the First Amendment?

No, I'm confident that it isn't.

People are referring to this as a threat, but it's more like incitement. Under any interpretation Trump isn't saying he will shoot anyone; he's suggesting that someone else might — and perhaps implying that they should.

Attempts to punish incitement to violence are governed by the "clear and present danger" test articulated in Brandenburg v. Ohio. Brandenburg involved a Klan rally at which a speaker said "We're not a revengent organization, but if our President, our Congress, our Supreme Court, continues to suppress the white, Caucasian race, it's possible that there might have to be some revengeance [sic] taken." He was convicted under the Ohio Criminal Syndicalism statute for "advocat[ing] . . . the duty, necessity, or propriety of crime, sabotage, violence, or unlawful methods of terrorism as a means of accomplishing industrial or political reform." In one of the most important First Amendment decisions of the last half-century, the Supreme Court overturned the conviction. "[T]he constitutional guarantees of free speech and free press do not permit a State to forbid or proscribe advocacy of the use of force or of law violation except where such advocacy is directed to inciting or producing imminent lawless action and is likely to incite or produce such action." Thus, since the Klansman wasn't advocating imminent lawless action and likely to incite it, his words were protected by the First Amendment. By the same logic, Trump's comment is protected. It's conditional, it's directed to something that will happen (at the earliest) more than six months in the future, and it's not likely to produce action. I don't think this is a close call at all.

What if we stubbornly treat Trump's comment as a threat? Isn't it a federal crime to threaten a major presidential candidate?

Under the true threat doctrine, it's still protected by the First Amendment.

Consider the Supreme Court's ruling in Watts v. United States. At an anti-draft protest, Watts said he would resist the draft and that "If they ever make me carry a rifle the first man I want to get in my sights is L. B. J." He was convicted of threatening the President. The Supreme Court reversed the conviction. The court noted that the statement was made at a political rally and drew a laugh from the crowd. "We agree with petitioner that his only offense here was 'a kind of very crude offensive method of stating a political opposition to the President.' Taken in context, and regarding the expressly conditional nature of the statement and the reaction of the listeners, we do not see how it could be interpreted otherwise."

Since Watts courts have grappled with whether the government must prove that a threat is just objectively threatening (meaning, a reasonable person would take it as an expression of intent to do harm) or also subjectively threatening (meaning, the speaker intended that it be taken that way), and that issue is not fully resolved. Thankfully we don't have to delve into the fetid swamp that is Donald Trump's subjective intent, because I don't think the objective test is anywhere close to being met. Like Watts, the statement was spoken at a political rally, and like Watts, it drew laughter, and like Watts, it was hypothetical and conditional. Moreover the "maybe there is, I don't know" softens it substantially. At most it's the sort of hyperbole that Watts protected. It's not anywhere close to the sort of extreme and specific statements that have been taken as threats in the political context, like the abortion provider "wanted" posters in Planned Parenthood v. American Coalition of Life Activists or the nutty white supremacist in United States v. Turner (both of which show how courts sometimes blur the lines between incitement and threats). Again, with respect to dissenters out there, I don't see this as a close call.

In America, under the First Amendment, I can say something like "if Donald Trump gets elected, someone should assassinate him for the good of the nation." That statement may be immoral, and destructive of the very American values it purports to defend, but unless it calls for imminent action or expresses an objectively credible intent to do harm, it's protected speech.

A Rare Federal Indictment For Online Threats Against Game Industry

The U.S. Attorney's Office for the Eastern District of California has sought and obtained an indictment against a young man named Stephen Cebula for sending online threats to Blizzard Entertainment, the freakishly successful powerhouse behind the Warcraft, Starcraft, and Diablo games as well as many others. The case is notable because it's so rare: there's so much threatening behavior online, and so little of it is addressed by the criminal justice system.

Stephen Cebula seems overtly disturbed. The search warrant for his home and subsequent criminal complaint tell a tale of him engaging in bigoted trash talk with other players on the Blizzard game "Heroes of the Storm," ranging from racial epithets to comments like "I will kill your family bitch" and fantasies about raping a child at Disneyland. Blizzard suspended Cebula's ability to communicate with other players. Cebula — perhaps tutored in law and political theory on Reddit, or by Milo Yiannopoulos — saw this as an outrageous violation of his freedom. He used his Facebook account "tedbundyismygod1" to send two threatening messages to Blizzard:

Careful blizzard … I live in California and your headquarters is here in California …. You keep silencing me in Heroes of the STorm and I may or may not pay you a visit with an AK47 amongst some other "fun" tools.

You keep silencing people in heroes of the storm and someone who may live in California might be inclined to "cause a disturbance" at your headquarters in California with an AK47 and a few other "opportunistic tools" …. It would be a shame to piss off the wrong person. Do you not agree blizzard?

Thus Cebula stood up for all the depraved manchildren of the internet who believe they have a moral right to squat on other people's property and yell "nigger" at passers-by.

Anyway, Blizzard reported the threats to the FBI. Since it was mega-corporation Blizzard calling — and not any one of the hundreds or thousands of Americans without lawyers and IT departments and security teams who get such threats every day — the FBI investigated, and quickly found Cebulba through his Blizzard account information at IP address. They discovered records of a 2015 incident in which he surrendered to Sheriff's deputies after making threats to kill someone at a park and to kill his sister, overweight people, and "various others that did not meet his specific views." He was committed for a 72-hour period then. The affidavit also suggests that he was in the system as a juvenile for threats.

The affidavit in support of the criminal complaint linked above — which is a brief addendum to the search warrant affidavit — notes that the FBI found Cebula at home, Mirandized him, and questioned him. Cebula admitted, among other things, that he intended to scare the people at Blizzard he had threatened and that he had looked things up like Blizzard's location in order to make his threats more credible. He also talked about his fantasies of violent assaults on children and of sexual assault of his five-year-old niece who lives in his home.

After his first appearance, Cebula was detained without bail based on the court's finding that he's a flight risk and a risk to others and bail conditions can't manage those risks. The court particularly took into account his suicidal and homicidal ideation. He's represented by the Federal Public Defender, who will likely do a good job for him. They already launched a creative and aggressive, if futile, attack on the indictment on the grounds that Cebula and Blizzard were both in California and thus the threats did not involve interstate commerce as required by the federal threat statute.

Cebula is charged with making threats under Title 18, United States Code, section 875. That's the same statute that was at issue in the Supreme Court's Elonis decision last year. Elonis concerned the intent the government must prove to convict someone under Section 875. Everyone agrees that a threat — to be outside the protection of the First Amendment — must be objectively threatening. That is, the government must be able to prove that a reasonable person would take it as a genuine expression of intent to do harm. The remaining question is whether the defendant must intend for the statement to be taken as a real threat — that is, whether there is also a subjective test. The Supreme Court didn't fully resolve this, suggesting that the government must prove at least that the threatener was reckless as to the impact of his or her threats, but not deciding whether there must be specific intent to threaten. In the meantime, most federal prosecutors are proceeding on the assumption that they must prove subjective intent.

Both subjective and objective intent can be more challenging to prove in the context of the internet, where insincere trash talk is so common. Here the prosecution has the benefit of Cebula's statements to the FBI admitting the elements of the offense by admitting that he intended to scare people at Blizzard. That statement makes even an insanity defense very difficult, because it suggests he understood the nature and quality of his acts and the impact they would have on people.

This is an ugly case. It's ugly because it's about untreated mental illness. It's ugly because for every corporation like Blizzard that gets federal law enforcement attention in an incredibly rare threats prosecution, thousands of individuals without such power and influence live in fear of Cebula's moral and intellectual ilk. It's ugly because I guarantee you that Cebula has fans. That's what online culture is like.

Edited to add: Naturally most media covering this reports that he's facing "up to five years in federal prison," which is indeed the statutory maximum. As I often discuss, the statutory maximum has very little relation to the actual probable sentence. The recommended range under the United States Sentencing Guidelines — which will be the starting point for the judge, who may go above or below — is likely about 10-16 months before any credit for a guilty plea.

John Hinckley, Jr. and the Rule of Law

Today the airwaves are ablaze with news that John Hinckley, Jr. — would-be assassin of President Reagan — will be released from a mental institution to live with his elderly mother. United States District Judge Paul L. Friedman's order permitting this release comes more than 35 years after Hinckley's bloody assault, which wounded President Reagan, gravely and permanently disabled his press secretary James Brady, and injured a police officer and a secret service agent.

People are outraged. Why wouldn't they be? Assassinations have cast a grim pall over American history. President Reagan was well-liked and is nearly revered in retrospect. The assassination attempt was a formative event in the memory of many people my age. How, people ask, can you shoot four people, one of them a President, and ever see the light of day again? If any act requires permanent confinement, isn't it this one?

The answer should comfort us, not terrify us: the rule of law applies to everyone, even the notorious. (Edited to add: or, at least, it ought to.)

Hinckley was not convicted of the attempted murder of President Reagan — a jury found him not guilty by reason of insanity. Criminal defense lawyers will tell you that it is exceptionally difficult to convince a jury to reach such a verdict. In (another) era of great anxiety of crime, in a case involving a popular President, the odds were weighed even more heavily against Hinckley. If you think that it's outrageous that someone who tries to kill the President could use the insanity defense, bear in mind that the defense has its roots in cases of mentally ill people attempting assassinations. Nevertheless, public outrage led to nationwide narrowing of the defense, notwithstanding the fact that it was rarely used and even more rarely successful.

Now, after 35 years of confinement (with gradually increasing exceptions) in a mental institution, the court has found that Hinckley is suitable for release under the provisions of the relevant laws governing patients committed to institutions after such verdicts:

(e) . . . . The court shall weigh the evidence and, if the court finds that such person has recovered his sanity and will not in the reasonable future be dangerous to himself or others, the court shall order such person unconditionally released from further confinement in said hospital.

It was not a casual decision. Judge Friedman's order is 103 pages long, and builds on a history of other long orders. The order meticulously reviews the testimony at an evidentiary hearing, the unanimous conclusions of multiple doctors (including the government's own experts) regarding Hinckley's mental state and lack of dangerousness, and the history of his gradually increasing liberties granted by the hospital and the court. In addition, the court sets rather rigorous limitations on Hinckley's freedom, considerably in excess of what one would normally see for a convict released on parole or supervised release — for instance, the court limits Hinckley's access to the internet and ability to communicate with the public to head off the sort of attention-seeking and grandiosity that was part of his delusional structure (see page 99-100 of the order).

Perhaps you find Hinckley's release outrageous. If so, ask yourself why. Is the outrageous part that there's a defense of not guilty by reason of insanity? Is the outrageous part that a jury found it applied, in a case where everyone agreed that Hinckley was crazy, and only disagreed about whether he was responsible? Is the outrageous part that such people can be released after 35 years under strict conditions if doctors agree they are in remission and not dangerous? Is the outrageous part that a judge found that the facts here warranted such a release? Or is the outrageous part that some crimes are so notorious that you think they should be outside the rules, outside the rule of law?

Is John Hinckley, Jr. dangerous to society? Doctors don't think so after 35 years, and he's successfully completed many outside visits and excursions to date. Is it dangerous to have a legal norm that the gravely mentally ill who commit violence may eventually be released? I doubt 35 years of forced treatment and confinement is the sort of lenity that leads anyone to violence. What about exceptions to the rule of law? If we ignore the rules and evidence because a particular person is sufficiently notorious, because of our gut, how dangerous is that?

Lawsplainer: Are Milo's Faked Tweets Defamatory?

I'm not going to address the broad subject of Twitter banning the needy, cynical huckster Milo Yiannopoulos. It's been done, you know what I'd say, and I don't have much to add.

I'll address just one small piece of the story. Before he was banned, Yiannopoulos retweeted bigoted tweets fabricated to look like Leslie Jones had uttered them. The tweets were fake, and Yiannopoulos knew they were fake.

Was it defamatory for Yiannopoulos to circulate the faked tweets falsely attributing bigoted statements to Jones?

The answer: probably not, given Yiannopoulos' reputation.

Only false statements of fact can be defamatory. Satire, ridicule, and insults cannot. The faked tweets were intended as trolling and — to use the term extraordinarily generously — "satire", not as a factual claim that Jones had uttered the words. Could some people look at the fake tweets and assume they were real and that Jones actually said those things? Yes. But courts give very broad protection to satire, and protect it even when some people take it seriously. In determining whether a challenged statement should be taken as satire/ridicule/insult/hyperbole or as a statement of fact, courts look at how a reasonable audience familiar with the speaker and the context would take it. In other words, the relevant question is whether the speaker's target audience, informed about the circumstances surrounding the statement, would take the statement as an assertion of fact. I wrote about this in 2013 when I described a D.C. Circuit opinion rejecting a WorldNetDaily lawsuit against Esquire. Esquire's satire of Joseph Farah and Jerome Corsi was protected people readers familiar with Esquire would recognize their story as a parody, not as a news story. Similarly, readers familiar with Popehat would recognize that my accusing Farah and Corsi of sexual molestation of walruses was satire serving as an example of the doctrine, even if someone unfamiliar with Popehat or the case might take it seriously.

Here, a reasonable audience familiar with the context (Yiannopoulos trolling and attacking someone for clicks and attention, and playing to his hooting bigoted admirers) and with the speaker (Yiannopoulos as a hack troll, known for hyperbole and insult, whose followers often fake tweets as a means of ridicule) would likely not take the fake tweets as real, particularly when he fairly quickly followed up with a mock-surprised "you mean those aren't real?" wink to his fans.

I'm not saying that no court could find otherwise. I'm saying that's the most likely result, and probably the correct one under the law.

Remember: nobody needs free speech rights to protect admirable speech by people we like. It's designed to protect despised speech by people we hate. Yiannopoulos deserves contempt for monetizing bigotry, and his fans are loathsome, but his speech is protected.

Ask Popehat! Joe Manchin Edition

Welcome to Ask Popehat!, the feature where we take your questions on topics ranging from law to ethics to proper child rearing, and give sensible easily digested answers that you can share with friends and family at the dinner table. For this edition, we'd like to welcome Senator Joe Manchin of West Virginia. As the distinguished former Governor and Attorney General of the Mountain State, Senator Manchin has graciously agreed to provide his wisdom on the difficult job of upholding the Constitution during times of emergency and civil strife. Our question to Senator Manchin comes from Edith H., of Anchorage Alaska.

Senator Joe Manchin

Senator Joe Manchin

Dear Senator Manchin:

I was shocked and heartbroken at this week's deaths at Pulse Night Club in Orlando, though I'm still learning the facts. Like a lot of Americans, I'd like to know how the shooter was able to get his hands on a semi-automatic rifle when he'd been investigated by the FBI, not once but twice.  Wasn't that a crime? Shouldn't the government have prevented him from obtaining a dangerous weapon, just to be sure?

Edith in Anchorage.

Senator Joe Manchin

Senator Joe Manchin

Dear Edith:

Thank you for your questions. Like you, I was dismayed to wake up Sunday morning to see news of this tragedy. And let me tell you, as a former prosecutor, once I recovered from my grief I turned to the first question anyone should ask when tragedy occurs:

Who is responsible?

There are many we could blame for this atrocity, starting with the obvious: the shooter himself. By all accounts Omar Mateen was a psychopath, with deeply strange sexual hang-ups and a twisted, murderous interpretation of his religion. Some would say that alone explains his awful crimes, and that we should be thankful he's no longer around. That's what many ordinary people would say. But as a former prosecutor, and a United States lawmaker, my job is to probe deeper, to prevent tragedies of this sort from occurring again. And I'm glad to say that I have found the true culprit behind these crimes. That culprit is the United States Constitution.

Now don't get me wrong: I'm a big fan of the Constitution, in many respects. I'm a great admirer of Article I, which gives United States Senators, like myself, the power to maintain a Journal of Proceedings. And to be compensated by law for our service to this great nation. As well as to provide and maintain a Navy. Did you know that even though West Virginia is landlocked, the Navy keeps our rivers free of pirates? God bless our beautiful mountain streams. And God bless the United States Navy.

But as much as I love our brave fighting sailors, the Constitution is a deeply flawed document, which has been twisted even further by bleeding heart judges and corrupt defense attorneys for criminals. Why, did you know that the Constitution says, at least according to some, that a criminal's life, liberty, and property cannot be taken away without "due process of law?"

I was gobsmacked when I first heard that.

You see, some judges, bless their hearts, have gotten it into their heads that we in the United States Senate cannot pass a law to keep potential troublemakers from getting into mischief, or sending them to prison, or taking away their possessions, unless a judge (naturally) and jury have said they actually broke some other law that was already on the books? That's what "due process of law" means.

That's what killed those poor people in Orlando. And it's killing us all.

Edith, as a United States Senator, my job is to keep good Americans like you safe from all enemies foreign and domestic. But as powerful as I am, in some ways my hands are tied. How can I keep you safe from an enemy domestic if I can't order him locked up for your own protection? Or maybe we don't want to actually, you know, put him in jail. Maybe we just want him to shut the funk up, pardon my French. There are a lot of dangerous weirdos out there, saying stupid things that give dumb people the wrong idea about America. Why should they be able to spout off at will, if we in the Senate have determined they're wrong? Why should they be able to buy a gun, if the brave men and women of our Federal Bureau of Investigation think they may be up to no good, some day?

I'll tell you why. It's because pointy-headed judges have arrogated to themselves the power to interpret our sacred Constitution, a job that's reserved to the Senate. Our founding fathers, men like Aaron Burr, our third Vice President, and Jefferson Davis, a great Senator from Mississippi and a brave Secretary of War, didn't hold with toxic notions like this "due process of law." And neither should we.

Of course, Edith, I'm not suggesting that we should put ordinary Americans on lists of people whose rights aren't protected. I love our rights, and I know you do too. We'd never keep you from exercising your God-given right to own a hunting rifle, and to shoot as many turkeys as federal regulations permit. West Virginia is prime turkey-hunting country. If you and your husband enjoy the excitement of turkey shoots as much as I do, we'd love to show you some Mountain State hospitality at our fine hunting resorts.

No, I'm speaking of them, Edith. People who don't love America the way you and I do. I think you know who they are. They're out there, in the mosques and madrassas and "civil liberties" rallies, plotting the downfall of our great nation, and speaking ill of our ancient institutions, like the United States Senate, the greatest legislative body in the world. And one day, if they're not stopped, they'll each of them shoot up a hundred night clubs. Unless we stop them from owning firearms, for their own good, and our own protection.

Kindest regards, and God bless our United States Navy,

Joe Manchin.

Lawsplainer: IT'S NOT RICO, DAMMIT

I have a question.

Angels and ministers of grace defend me.

Would it be RICO if . . .

NnnnoooOOOOOOOOOOOOOOOOOOOOOOOOOOOOOOOOOOOOOOOOOOOOOOOOOOOOOO

via GIPHY

. . . .

No.

But how do you know? I haven't even described the case yet.

It's never RICO!

I mean, not literally never. But I can say with a very high level of confidence that if you're asking me, it's not RICO.

But it's an important case! And the facts are terrible! This defendant did really bad things.

That's not what RICO means. RICO is not a fucking frown emoji. It's not an exclamation point. It's not a rhetorical tool to convey you are upset about something. It's not a petulant foot-stomp.

RICO is a really complicated racketeering law that has elaborate requirements that are difficult to meet. It's overused by idiot plaintiff lawyers, and it's ludicrously overused by a hundred million jackasses on the internet with an opinion and a mood disorder.

You have a really big vein throbbing on your head and I am concerned it is going to burst and it will be really gross.

I'm going to need a minute here.

Calm. Peaceful. Go to your happy place.

Okay.

Okay. I'm good. Proceed.

So what is RICO, anyway?

RICO is the Racketeer Influenced and Corrupt Organizations Act, because goddamn Congress likes acronyms like your great-aunt likes porcelain cats.

Congress passed it in 1970 to address organized crime. It was specifically designed to help with some of the difficulty that prosecutors traditionally had in cracking big organized crime rings — mafia families, drug trafficking organizations, that sort of thing.

What sort of problems?

The stuff that crime bosses did was already illegal. But it could be very hard to attack the whole enterprise instead of one act after another. You could take down some mook for one street assault, but you couldn't take down the mook's boss's boss. You had to nibble at the edges, and meanwhile the crime family or drug ring or whatever kept making money.

RICO was designed as a way to describe, legally, the whole criminal enterprise based on some of its acts, go after people who supported it, and take its assets.

Why not just charge a conspiracy?

Good question. A RICO claim is really just an elaborate over-complicated conspiracy claim. The answer, in part, was that it was 1970, crime was way up, Nixonian "law and order" was popular, and everyone wanted to be seen as doing something.

Wait. I thought RICO let you sue people. It's a criminal law?

It's both.

And even though it was passed to deal with large-scale organized crime, now it's vastly overused — not so much by the government, but definitely by plaintiff attorneys.

So you can't sue people for RICO?

Oh you can. It's just that almost all of the time you'll be wrong to do so. A RICO claim doesn't mean "these are bad people." It doesn't mean "they did bad things." It doesn't mean "they did lots of bad things" or "they did bad things over state lines" or "they did bad things and some of them were crimes" or "they did bad things and we need to take them really seriously."

But that's how people use RICO — as an idiotic rhetorical device. Like this:

areyoufuckingkiddingme

Wow. I'm only an abstract imaginary foil written to sound like an idiot and even I know that's really stupid.

I know, right? But I hear his books are good.

So people on the Internet use "RICO" to sound tough. Do lawyers overuse it too?

Oh hell yes. And judges hate it. It's overcomplicated and most of the time it adds nothing to the case.

It's so overused — especially by crazy pro se plaintiffs — and so needless that a lot of federal judges have special RICO orders they issue in RICO cases demanding that the plaintiff explain, in painful detail, why they think they have a RICO claim. Like this one, for instance. Judges issue them automatically as soon as a RICO case hits their docket to gather information to dismiss the case because it's not fucking RICO you idiot.

So what would be a righteous civil RICO claim, as opposed to all the bogus ones?

Let me answer that by telling you the elements of civil RICO — that is, the list of things a plaintiff would have to prove to win a RICO case.

To win, a plaintiff would have to prove (1) conduct, (2) of an enterprise, (3) through a pattern, (4) of racketeering activity called "predicate acts," (5) causing injury to the plaintiff’s "business or property."

Each of those terms means something complicated — each term is a gateway to a whole bunch of other issues.

Okay. What's "conduct"?

That just means that you have to prove that the particular defendant has a role in the operation or management of the enterprise.

Wait. Isn't the defendant the enterprise?

No. In fact the defendant can't be the same as the enterprise.

An enterprise is a legal entity or group of people. So, for instance, the Gambino Crime Family can be an enterprise, or Prenda Law. But the enterprise has to be different than the defendant for a RICO claim. Instead, the defendants have to be people and entities who run the enterprise. So if you filed a crazy pro se complaint saying that General Motors is a criminal enterprise and named General Motors as the defendant, your claim would be legally insufficient.

That sounds convoluted.

It is. But remember — RICO wasn't supposed to be an everyday tool. It's supposed to be a way to take down slippery crime families.

Okay. So what's a pattern?

A pattern is at least two acts of racketeering activity — which we'll get back to later — over a ten year period. The activity has to be both "related" and "continuous."

"Related" means that it's part of the same effort — so if your crime family does drugs, prostitution, and extortion, all of those could be related. "Continuous" means you have to show either a series of acts over a substantial period of time, or past conduct that by its nature suggests it will continue.

Again, RICO's supposed to be about organized crime. So if you and I decide to knock over a bank, that's not RICO — it's not part of a pattern of conduct, even if the FBI can find more than two charges to apply to it. The idea of RICO is "these people are in the crime business, and as part of the crime business they committed a crime against me."

So what's "racketeering activity"?

Racketeering activity is the commission of a whole bunch of very specific federal crimes. But it's not just any crime. It's only the ones on the list.

That's one of the reasons that the "[advocacy organization I don't like] should be sued for RICO!" arguments are so infuriating. Where's the underlying federal crime? And how is it harming the plaintiff's business or property? RICO doesn't mean "this organization advocates things that are bad for society."

So that's it, right?

No, remember the last element — you have to show that all of the foregoing causes injury to the plaintiff's business or property. It can't be a harm to society at large.

Also, you can sue someone for conspiring to commit RICO — meaning you have to show they agreed to do all that.

Is criminal RICO the same?

Mostly. It's more complicated. It can include a RICO conspiracy or acquiring a share in a RICO enterprise or to use a RICO enterprise to collect debt.

This sounds hard to allege and prove.

It is. It's really difficult even to allege it right in a complaint. RICO claims usually generate a series of motions to dismiss. That's why judges often have standing orders requiring plaintiffs to explain how and why they are claiming RICO — that's something judges don't do for almost any other cause of action. Most of the time, if a civil plaintiff can prove RICO, they can much more easily prove fraud or other more straightforward claims.

So why bring a civil RICO claim?

Well, if you win, you can get attorney fees, and possibly even triple your actual damages.

But mostly I think it's a scare tactic and a propaganda tool, as its idiotic rhetorical misuse suggests. Lawyers bring RICO claims so they can say "the defendant's behavior is so criminal that we sued them for RICO!" Dupes play along by describing RICO claims as "charges," and generally by acting like a RICO claim suggests that there's already been a finding that someone did something wrong.

It doesn't mean that. A RICO claim just means someone wrote down a RICO claim and filed it. Even if the RICO claim survives a motion to dismiss, that just means that a plaintiff was able to allege a complex set of facts in a convoluted way. It doesn't mean those facts are true.

So why do we still have civil RICO?

Mostly because Congress is more scared of being called soft on crime than they are interested in reforming time-wasting abusive statutes.

There have been some reforms. One Congressional amendment prevented plaintiffs from using securities fraud as a racketeering act under the statute, probably because investment banks donate enough to members of Congress. And every now and again someone proposes reform. But it's dry, boring, and complicated, so it never goes anywhere. For now, we're stuck with it: a convoluted statute used by twits and crazies to make litigation more expensive, and waved around by morons like a big foam finger at a ball game.

Well that's a little pessimistic.

Everything is shit.

Would you like a cookie?

. . . yes.

Hello! You've Been Referred Here Because You're Wrong About The First Amendment.

Welcome! Someone has referred you to this post because you've said something quite wrong about the First Amendment.

I apologize for this impersonal approach to your mistake. I would prefer to offer you an artisanal response to your wrongness, something that would respect and celebrate the unique ways that you've taken one of the most fundamental aspects of our mutual civic heritage as Americans and shat your ignorance upon it. Unfortunately, there are quite a few of you and only one of me, and I'm busy, and lazy. Also, quite frankly I feel that if I have to explain these things to just one more person, I may go quite mad. I don't mean mad in the vaguely amusing, sympathetic, relatable ways that people expect from me. I mean mad in an uncouth and alarming sense that will likely result in my calamitous misuse of some implement residing in the dark marchlands between tool and weapon, such as an adze.

So. Constrained as we are by this impersonal medium, let's discuss why you are completely wrong.

If you said something like "The First Amendment says 'Congress shall make no law,' and Congress isn't involved here, so it's not a First Amendment issue."

Congratulations! You've read the First Amendment. Even if you've ignored the last century of discourse about it, this raises you above most of the populace, particularly on the Internet.

You're right that the plain language of the First Amendment only limits Congressional power. But you've ignored some American history. Don't worry: you've only ignored a century and a half of it. The Bill of Rights was originally understood to limit the power of the federal government without limiting the states. But in 1868, after some recent unpleasantness, we amended the Constitution to add the Fourteenth Amendment, which includes this language: "No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws." By its own terms, the Fourteenth Amendment forbids the states from infringing certain rights.

But which rights? Well, in the early 20th Century, the United States Supreme Court decided that certain fundamental rights enumerated in the Bill of Rights are included in the concept of liberty identified in the Fourteenth Amendment and therefore protected from infringement by "due process of law." This process — under which the court decided that the Fourteenth Amendment incorporated by reference rights from the Bill of Rights and made them enforceable against the states — is called incorporation, and the notion is called the incorporation doctrine. The Supreme Court has decided that most, but not all, rights from the Bill of Rights are incorporated by the Fourteenth Amendment and therefore protected from infringement by states. The Supreme Court decided — or, to be more accurate, assumed — in a 1925 decision that freedom of speech under the First Amendment is one of the rights enumerated in the Bill of Rights that the states may not infringe because it is incorporated by the due process clause of the Fourteenth Amendment.

Therefore, the First Amendment does apply to actions by states and their political subdivisions (cities, counties, state agencies, etc.), and has for more than ninety years. You're wrong. Please stop being wrong and asking other people to be wrong with you.

If you said something like "the First Amendment only stops the government from censoring you so it doesn't apply to this civil case, which is one individual suing another."

Welcome back! You're still wrong. The First Amendment limits your ability to sue people.

Civil lawsuits employ government power in two ways. First, they are premised on laws passed by legislatures. A defamation lawsuit is a lawsuit based upon a defamation law enacted by a state, which is an action by the state. On occasion, they're based on a nebulous collection of non-statutory precedents called common law, which are nonetheless recognized and enforced by the government through the courts. Second, civil lawsuits employ government power to force you to come to court and force you to pay any resulting judgment against you.

So in 1964, faced with an Alabama defamation judgment against the New York Times for running an advertisement about abuse of civil rights protesters by local officials, the Supreme Court noted that the First Amendment obviously applies to private civil actions that employ state power. "The test is not the form in which state power has been applied but, whatever the form, whether such power has, in fact, been exercised." Because civil lawsuits aimed at speech invoke state power to attack speech, they are limited by the First Amendment. That doesn't mean that all civil lawsuits attacking speech are absolutely barred. It means that First Amendment analysis applies to them, and may or may not provide a defense to them.

If you think about it even a little, this is the only sensible interpretation. Under a contrary interpretation, a state could pass a law saying that private parties could sue you for offending them, or annoying them, or for expressing certain political views the state disfavors. People could then use the coercive power of the courts to sue you based on those laws. Although I admit there is a certain appeal to a regime under which I may ask a judge to compel you to pay my bar tab if you say stupid and ignorant things about the First Amendment, I recognize that it is not consistent with ordered liberty.

So: you're wrong, stop trying to spread wrong like gonorrhea in the Theater Department, try to be right, etc etc etc.

Fault: It's Yours, But Not ONLY Yours

You are at fault for not educating yourself about how our most fundamental American rights operate. However, you are not the only one at fault. Wrongness is not a zero-sum game. I also blame your teachers, although I sympathize with them. Also, America's press could not do a worse job informing you about the First Amendment if it tried, which frequently I believe it does. If you would like to know more about some of the ways that the American media shares blame for you being wrong, consider these classic media free speech tropes. If you would like to observe some of the ways that the educational system has failed us, attempt conversation with a college student.

I bid you good day.

Lawsplainer: When Must Federal Judges Recuse Themselves, Anyway?

I have a question about Donald Trump.

Hell. I am in Hell. This is Hell.

Calm down. I just want to ask about his argument about that federal judge hearing the Trump University case.

Judge Gonzalo Curiel, the United States District Judge hearing two related cases against Trump and Trump University, which I wrote about last week?

Yes.

You couldn't retain his name for six whole days?

You're going to make this difficult, aren't you?

You have no idea.

I just want to know whether Trump has any law on his side. When do federal judges have to recuse themselves?

Fine.

There are two federal laws governing recusal. One is about procedure, the other is about substance.

Title 18, United States Code, section 455 governs substance. It starts with a catch-all:

(a) Any justice, judge, or magistrate judge of the United States shall disqualify himself in any proceeding in which his impartiality might reasonably be questioned.

Then it offers specifics:

(b) He shall also disqualify himself in the following circumstances:

(1) Where he has a personal bias or prejudice concerning a party, or personal knowledge of disputed evidentiary facts concerning the proceeding;

(2) Where in private practice he served as lawyer in the matter in controversy, or a lawyer with whom he previously practiced law served during such association as a lawyer concerning the matter, or the judge or such lawyer has been a material witness concerning it;

(3) Where he has served in governmental employment and in such capacity participated as counsel, adviser or material witness concerning the proceeding or expressed an opinion concerning the merits of the particular case in controversy;

(4) He knows that he, individually or as a fiduciary, or his spouse or minor child residing in his household, has a financial interest in the subject matter in controversy or in a party to the proceeding, or any other interest that could be substantially affected by the outcome of the proceeding;

(5) He or his spouse, or a person within the third degree of relationship to either of them, or the spouse of such a person:

(i) Is a party to the proceeding, or an officer, director, or trustee of a party;

(ii) Is acting as a lawyer in the proceeding;

(iii) Is known by the judge to have an interest that could be substantially affected by the outcome of the proceeding;

(iv) Is to the judge’s knowledge likely to be a material witness in the proceeding.

So all federal judges are dudes?

Don't start with me.

That "might reasonably be questioned" is awfully broad. Doesn't that mean Trump is right?

Only if you pretend the last century of law didn't happen. Federal courts have ruled many, many times about what is a "reasonable" question and what isn't. "Reasonableness" is defined in the context of some fundamental assumptions about the legal system — especially that judges generally won't act like sectarians based on their race and religion. Moreover, courts recognize that all judges had lives before becoming judges, and those lives necessarily involved a wide range of affiliations. Plus, the test is based on the perception of a reasonable person, a "well-informed, thoughtful, and objective observer, rather than the hypersensitive, cynical, and suspicious person." So. Not a Trumpalo, not a Clintonista.

So Trump's argument that a "Mexican" can't hear is case is bogus?

Beyond the shadow of a doubt based on a century of law. Many courts have considered and rejected the argument that a judge of a particular ethnicity, gender, or religion is inherently biased because of the nature of the case. In fact, the argument has been so repeatedly and thoroughly rejected that it's sanctionable to make it.

What other kinds of arguments have federal courts rejected?

You want me to do a lot of research, don't you? I'm going to cheat and summarize straight from the Rutter Guide: federal courts have rejected arguments that judges' impartiality could reasonably be questioned based on their pre-judicial law practice focus, their special expertise, their memberships in groups prior to appointment, their political views discussed prior to appointment, their giving lectures or writing on the topics involved in the case, their expression of opinions about propositions of law, their political donations before appointment, which President appointed them, where they went to school, and their chosen political party.

Wow. It sounds hard to force recusal. When have courts required it?

Again I cheated by looking at Rutter! Courts have ruled that judges should have recused themselves when they had pending employment offers from a party's law firm, when they had a close personal relationship with counsel for a case, when they had a close personal relationship with a party or witness, when the court's staff was employed by or very close to a party, when a close family member is a lawyer at a party's law firm, when the judge was a trustee of an entity that is a party, when the judge previously worked on the case as an attorney, when they had recently been a losing defendant in a lawsuit by a party, or when the judge has personal knowledge of disputed facts in the case as a witness.

In addition, sometimes a judge's comments about a case can require recusal when they show bias.

Really? But Trump says that Judge Curiel's rulings show bias. Doesn't that require recusal?

No. Bias has to be extrajudicial. That means that you can't recuse a judge just because the judge has concluded and expressed that your case is weak or that your lawyer is acting like a jackass in court. You absolutely can't recuse a judge because they ruled against you. Recusal is only required when a judge displays bias arising from knowledge or grounds from an inappropriate source, not from sitting on your case. To require recusal based on the judge's comments about his or her observations of the proceedings, the comments have to be truly extreme — "such a high degree of favoritism or antagonism to make a fair judgment impossible."

So: a wartime judge who says that "[o]ne must have a very judicial mind, indeed, not to be prejudiced against German Americans because their hearts are reeking with disloyalty.” That's extrajudicial bias requiring recusal. Saying that the evidence shows that the defendant behaved badly, or that the plaintiff's arguments lack merit? That's not.

But can't judge Curiel's impartiality be reasonably questioned now that Trump has repeatedly attacked him?

No. It's extremely well established — as well-established as anything in federal law — that you can't judge-shop by being a douche. A party's insults, criticisms, and even threats are not a valid basis for recusal. Otherwise you could judge-shop by attacking judges until you found one you liked.

What about Judge Curiel's membership in a Latino organization?

Leaving aside for the moment whether the attack is deliberately dishonest because it conflates a bar association with a political advocacy group, membership before becoming a judge isn't grounds for recusal. Moreover, membership in a religious organization is not grounds for recusal. Membership in bar associations and legal associations like the one at issue here has repeatedly been found not to require recusal. That's not just for ethnic organizations. So, for instance, membership in the Guild of Catholic Lawyers was not a basis for recusal in a suit against the New York Archdiocese. Hoatson v. New York Archdiocese, 280 Fed.Appx. 88 (2nd Cir. 2008).

I will note that calling an organization "the race," even if you don't mean it that way and the phrase has been used to mean other things and it's history is totally different and it's not the same thing at all so shut up, is kind of asking for trouble.

Even if one argues that Judge Curiel's membership in a Latino attorney organization might show bias, Trump's lawyers would have a problem: they'd be arguing that the alleged bias didn't arise until long after Judge Curiel started hearing the case. Trump's argument, to the extent it can be nailed down, is that Trump wants to build a wall and Judge Curiel is a member of a Latino organization and therefore Judge Curiel is biased. But Trump didn't start talking about building a wall until Judge Curiel had already been hearing the case for years. In general, a party can't manufacture bias through new conduct after the judge has been assigned. That stops parties from judge-shopping. So, for instance, if I don't like how my case is going before a Turkish-American federal judge who is a member of a Turkish-American group, I can't force a judge-switch by becoming a loud advocate for official recognition of the Armenian Genocide.

So Judge Curiel was right to refuse to recuse himself?

Judge Curiel hasn't refused because Trump's lawyers haven't made a motion for recusal, because they know it's without merit. Recusal motions are governed by Title 28, United States Code, section 144. If you make such a motion, the targeted judge looks at it to make sure it is timely and generally legally sufficient — that is, not facially ridiculous. If it clears that low hurdle, it goes to a different judge for determination, and the case is stayed in the meantime. Trump's made no such motion.

Do you think his attorneys will make such a motion?

No.

So what's Trump doing?

Posturing and playing to crowds who don't like judges, or "Mexicans," or especially "Mexican" judges. Puerile "Alpha" bullshit.

Can't Judge Curiel just say "fuck this noise, I'm out" and recuse?

No. Federal judges have an affirmative obligation not to recuse themselves except for legally sufficient grounds. That stops the reverse of judge-shopping: ditching unpleasant, boring, or otherwise undesirable cases.

Maybe Trump and his supporters don't agree with this legal precedent?

Maybe they don't. But as far as I know Trump never got upset about federal recusal law until he ran for President. And I haven't heard him, or his supporters, argue that he's being oppressed by a century of wrongly-decided law; I've heard them make uninformed or deliberately false statements about what the law requires.