Lawsplainer: Why Flag Burning Matters, And How It Relates To Crush Videos

I have a question about flag burning.

I deserve this. I earned this. I've . . . done things. I am forsaken and abhorred by God.

Oh stop being so dramatic. I just want to ask why I should care.

What?

Look, I get that the Supreme Court ruled — twice — that flag burning is expression protected by the First Amendment. But we argue about controversial speech all the time, and politicians advocate for punishing protected speech all the time. Why should we care when Donald Trump oafs around about flag burning? Isn't it just noise?

Because the flag burning "controversy" goes directly to the structure and methodology of free speech analysis.

That sounds superficially profound without actually meaning anything.

Do you want to have this conversation or not?

Pffffft. Fine. What does flag burning have to do with free speech "structure" or "methodology"?

In free speech analysis, how you get to a conclusion often has much more long-lasting impact than the conclusion itself.

Our legal system runs on precedent. The significance of the precedent isn't "the Supreme Court said that flag burning is protected by the First Amendment." The significance of the precedent is "someone wants to punish this speech and we have to figure out whether or not it's protected by the First Amendment. Let's look at the logic and methods the Supreme Court used to resolve that question when flag burning was the issue, and then apply it here."

But the Supreme Court has decided lots of cases about the First Amendment. This is just one precedent, one example of a method of reaching a conclusion. What makes it particularly important?

The Supreme Court's flag burning cases are crucial — not because of how they analyze existing exceptions to the First Amendment, but because they address whether the government can create endless exceptions to the First Amendment.

Just like crush videos.

wat

Crush videos. You know, videos of women stomping on small helpless animals.

That's . . . that's a thing?

Of course it's a thing.

Ugh. What does that have to do with flag burning? Or the First Amendment?

Congress — having salved all of the nation's ills — passed a law banning crush videos. Because who wouldn't vote for someone who stands against hurting baby animals? The law made it a federal crime to create or sell depictions of animal cruelty in interstate commerce. In 2010, in United States v. Stevens,, the Supreme Court found that the statute violated the First Amendment.

That sounds pretty straightforward. Why is it significant?

It's significant because of the way the government defended the statute. The government's lead argument wasn't that crush videos were outside of First Amendment protection because they fell into an already-recognized exception, like defamation or obscenity or incitement. They argued that the Supreme Court should recognize a new categorical exception to First Amendment protection for animal cruelty, because animal cruelty is so awful. They also argued that courts can recognize new exceptions to the First Amendment by weighing the "value" of the targeted speech against the harm it threatens.

The Supreme Court — in an 8 to 1 decisionfirmly rejected those two arguments. First, the Court said, the historically recognized exceptions to First Amendment protection are well-established, and you can't just go around adding new ones:

“From 1791 to the present,” however, the First Amendment has “permitted restrictions upon the content of speech in a few limited areas,” and has never “include[d] a freedom to disregard these traditional limitations.” Id., at 382–383. These “historic and traditional categories long familiar to the bar,” Simon & Schuster, Inc. v. Members of N. Y. State Crime Victims Bd. , 502 U. S. 105, 127 (1991) ( Kennedy, J. , concurring in judgment)—including obscenity, Roth v. United States , 354 U. S. 476, 483 (1957) , defamation, Beauharnais v. Illinois , 343 U. S. 250, 254–255 (1952) , fraud, Virginia Bd. of Pharmacy v. Virginia Citizens Consumer Council, Inc. , 425 U. S. 748, 771 (1976) , incitement, Brandenburg v. Ohio , 395 U. S. 444, 447–449 (1969) ( per curiam ), and speech integral to criminal conduct, Giboney v. Empire Storage & Ice Co. , 336 U. S. 490, 498 (1949) —are “well-defined and narrowly limited classes of speech, the prevention and punishment of which have never been thought to raise any Constitutional problem.” Chaplinsky v. New Hampshire , 315 U. S. 568, 571–572 (1942) .

Second, the Court said, the government's proposed methodology — that the Court should identify new categorical exceptions by balancing, on a case-by-case basis, the value of speech against its harm — is antithetical to First Amendment analysis and dangerous:

The Government thus proposes that a claim of categorical exclusion should be considered under a simple balancing test: “Whether a given category of speech enjoys First Amendment protection depends upon a categorical balancing of the value of the speech against its societal costs.” Brief for United States 8; see also id., at 12.

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

So: in 2010, the Supreme Court overwhelmingly and clearly rejected the idea that legislatures and courts can create new exceptions to the First Amendment based on how strongly they hate speech or how awful it is.

Okay. But I don't see what that has to do with flag burning.

The argument that flag burning is outside First Amendment protection relies on the same argument that the government made in Stevens — that the Supreme Court can, and should, recognize a special new exception to the First Amendment because burning the flag is so uniquely awful and represents such "low-value" speech.

Can't you justify a flag-burning prohibition under already existing historical exceptions to the First Amendment? What about fighting words, or incitement to riot?

You could justify some prosecutions of flag-burning on that basis under existing neutral laws, but not laws generally banning flag burning.

"Fighting words" — to the extent the doctrine still exists, which is doubtful —

What, what? It is?

–you'll have to wait for the first episode of the Popehat free speech podcast for that.

Anyway, at most fighting words allows the government to punish words directed at a particular person amounting to a challenge to an immediate physical fight. So, for instance, Paul Robert Cohen's jacket saying "Fuck the Draft" couldn't be fighting words because nobody could reasonably understand it as a direct personal challenge to them to fight. And in most cases, burning a flag isn't a direct challenge to a particular person to fight, which is why the Supreme Court said that it couldn't be treated as fighting words.

Could it be fighting words, hypothetically?

Sure! Say my neighbor Bob is a veteran and I knock on his door and when he opens it I'm burning a flag with a sign that says "I SPIT ON YOU BOB." That could probably be punished under the fighting words doctrine as a direct immediate challenge to a specific person likely to cause an immediate fight — if there was an existing statute prohibiting such challenges. But flag-burning statutes aren't limited to one-on-one confrontations like that. They seek to ban all flag burning.

Okay. But what about incitement? Isn't burning a flag incitement?

Colloquially it might be. But legally, it's not incitement outside of the protection of the First Amendment. The First Amendment protects speech that may make people so angry that they resort to violence — and thank God it does, because otherwise you could control speech by reacting violently to it.

No, incitement is only outside of the protection of the First Amendment when the incitement is intended to cause, and likely to cause, imminent lawless action. Maybe some people burning the flag intend to start a riot, and maybe in some situations a riot is likely. But most flag-burning statutes aren't that narrow — they ban flag burning whether the burner intends to incite a crowd to violence or not. That's why the Supreme Court rejected "incitement" as a rationale for flag burning laws.

Could you punish flag burning as incitement to riot?

Sure, you probably could, if you could prove that the flag burner intended to cause, and was likely to cause, imminent lawless action. You could do so under an existing incitement or disturbing the peace statute.

In 2005 members of Congress — including then-Senator Clinton — proposed a rather narrow flag-burning law limited to situations where the burner intended to cause and was likely to cause imminent violence. That would have met the strict test defining "incitement." It still would likely not have been constitutional, because it singled out for punishment one specific type of expression likely to cause a riot, and therefore was based on content. But that's a different post.

Okay. But you're not a Supreme Court Justice. Reasonable minds can differ on these things. Four justices dissented in both of the flag-burning cases. Can't you admit you may be wrong?

I'm wrong all the time. But my fundamental point is about how and why those justices dissented in Texas v. Johnson (the 1989 case striking down Texas' flag-burning law) and United States v. Eichman (the 1990 case striking down Congresses we-are-outraged Flag Protection Act of 1989).

Those dissents don't seriously advance either the fighting words theory or the incitement theory. Rather, they argue that the flag is unique and deserves unique protection — a new First Amendment exception.

Take Chief Justice Rehnquist's dissent in Johnson. It opens with a stirring history of the flag and its historical significance and emotional impact, and distinguishes it from other symbols like this:

The flag is not simply another "idea" or "point of view" competing for recognition in the marketplace of ideas. Millions and millions of Americans regard it with an almost mystical reverence, regardless of what sort of social, political, or philosophical beliefs they may have. I cannot agree that the First Amendment invalidates the Act of Congress, and the laws of 48 of the 50 States, which make criminal the public burning of the flag.

Rehnquist does invoke the fighting words doctrine, but not to fit flag burning within it. Rather, he cites it for the proposition that courts can carve new exceptions out of the First Amendment based on a weighing of the value of the speech against its social harm — in other words, the exact argument the government made and the Court rejected in Stevens:

The Court could not, and did not, say that Chaplinsky's utterances were not expressive phrases — they clearly and succinctly conveyed an extremely low opinion of the addressee. The same may be said of Johnson's public burning of the flag in this case; it obviously did convey Johnson's bitter dislike of his country. But his act, like Chaplinsky's provocative words, conveyed nothing that could not have been conveyed and was not conveyed just as forcefully in a dozen different ways. As with "fighting words," so with flag burning, for purposes of the First Amendment: It is no essential part of any exposition of ideas, and [is] of such slight social value as a step to truth that any benefit that may be derived from [it] is clearly outweighed by the public interest in avoiding a probable breach of the peace.

Justice Stevens' dissent in both Johnson and Eichman is similar: he argues that the government has a compelling interest in protecting the flag from desecration and that such prohibition is acceptable because it will apply no matter what the intended message of flag-burning is:

These cases therefore come down to a question of judgment. Does the admittedly important interest in allowing every speaker to choose the method of expressing his or her ideas that he or she deems most effective and appropriate outweigh the societal interest in preserving the symbolic value of the flag? This question, in turn, involves three different judgments: (1) The importance of the individual interest in selecting the preferred means of communication; (2) the importance of the national symbol; and (3) the question whether tolerance of flag burning will enhance or tarnish that value. The opinions in Texas v. Johnson demonstrate that reasonable judges may differ with respect to each of these judgments.

This is the balancing test put in different terms — it still relies on a judgment that (a) this speech is harmful and (b) the speech is of low value because you could say the same thing other ways that are less harmful.

So what's your point?

The flag-burning cases are important, like the crush videos case was important, because they draw a crucial line between having a few strictly limited exceptions to the First Amendment, on the one hand, and having as many exceptions as we feel like having, on the other hand. Flag burning isn't speech that's uniquely valuable or important to protect. What's important is that we protect the principled method by which we determine which speech is protected and which isn't.

The argument that flag burning should be outside the First Amendment can be applied with equal force to just about anything — "hate speech," "cyber-bulling," "revenge porn," "pro-ISIS speech," or whatever the flavor of the month is. If think the majority was wrong in the flag burning cases, here's what you're saying: "the Supreme Court makes bad judgments, and I want to give that Supreme Court the power to decide, on a case-by-case basis, whether the harm of speech outweighs its value. I don't want the courts to be limited to established, well-defined categories outside of First Amendment protection."

But that's ridiculous.

You're damn right it is.

It's about nothing less than the rule of law.

Okay. Hey, aren't you just being a dupe for Trump by reacting to one of his tweets, when he's probably just trolling?

I write about the First Amendment. It would be ridiculous to stop just because Donald Trump raises the issue of the day. Prudence requires us to put Trumpisms in perspective; it shouldn't prevent us from continuing to articulate our core values and talk about the things that are important to us.

Update: Ninth Circuit Rejects Attack on "Comfort Women" Monument

In 2013, the city of Glendale, California created a monument to "comfort women" — women of various countries sexually enslaved by the Imperial Army of Japan during World War II. Back in 2014 I wrote about a lawsuit brought by Japanese-Americans against the City of Glendale in which the plaintiffs claimed that Glendale's commemoration violated the Constitution's Supremacy Clause because it interfered with the still-sensitive and still-controversial (to the Japanese, anyway) subject of Japanese war crimes. I wrote about a federal court's dismissal of the lawsuit later in 2014, and Marc Randazza piled on and questioned the recent provenance of the entity created to be one of the plaintiffs. I maintain my position that the lawsuit was one of the most repulsive I remember seeing.

During the summer, there was an update — the U.S. Court of Appeals for the Ninth Circuit upheld the dismissal of the lawsuit. The decision is here.

The Ninth Circuit didn't agree with the trial court about everything. For instance, the appellate court concluded that the plaintiffs had standing — that is, a sufficient stake in the issue to be qualified to challenge the City of Glendale's actions. The trial court concluded that the plaintiffs had not demonstrated standing by alleging that their enjoyment of Glendale parks was disrupted by the presence of the comfort women monument; the Ninth Circuit — relying in part on environmental and Establishment Clause cases — decided that the statement of offense and interference with enjoyment of public spaces was enough.

After that, though, the plaintiffs and the Ninth Circuit parted company. The appellate court agreed with the trial court that the City of Glendale's commemoration of a historical event did not interfere with the United States' foreign policy and did not violate the Supremacy Clause. The court distinguished cases in which states have enacted remedial schemes aimed at foreign policy, like bans on trading with particular nations or a statutory plan to recover art stolen by Nazis during World War II:

Moreover, in contrast to state actions we have found preempted, Glendale has taken no action that would affect the
legal rights and responsibilities of any individuals or foreign governments.

The comfort women monument, by contrast, was expressive:

These purposes—memorializing victims and expressing hope that others do not suffer a similar fate—are entirely consistent with a local government’s traditional function of communicating its views and values to its citizenry.

This was the right result. Any other would prevent local governments — and by extension their citizens — from expressing themselves on historic matters. In a post-factual world, uttering the truth steadfastly becomes even more important. Imperial Japan sexually enslaved women. If they don't like that being said, tough.

This firm rejection by the Ninth Circuit renders moot my previous speculation on the ultimate endgame of the forces behind this lawsuit. I will note, however, that one of the original attorneys on the case has litigated on behalf of Turkey and Turkish entities using the same Supremacy Clause argument. Glendale, and its environs, have monuments recognizing the Armenian Genocide. Turkey, and Turkish interests, would prefer those monuments and official recognitions did not exist. If that was the long game, it has been thwarted now. But the fight to tell the truth about history does not end.

True Threats v. Protected Speech, Post-Election Edition

So. Thank goodness everyone seems to be going about this really calmly.

Dateline: Rutgers. Kevin Allred, a professor of Beyoncé Studies, is not taking recent news philosophically. In the course of a rant he offers these:

runoffroad2ndamendment

Days later, the NYPD shows up at his home and hauls him off to Bellvue for a psychiatric evaluation.

Analysis of when law enforcement can detain you and forcibly commit you for psychiatric evaluation is complicated and beyond the scope of this post. Let's look at the easier question: were those tweets illegal threats, or protected by the First Amendment?

The answer: they're probably protected speech. Remember, only "true threats" are outside the scope of First Amendment protection. A statement is only a "true threat" if a reasonable person would interpret the words, in their context, as an expression of actual intent to do harm. In addition, the speaker must either intend that the words be taken as a statement of intent to do harm, or at least must be reckless about whether or not they would be interpreted that way (that's still a bit up in the air, legally).

Here, the context is a tweet rant by a Rutgers professor. The Second Amendment tweet is part of a rant about gun control, and the bumper sticker tweet is part of an attack of intellectual and emotional incontinence about Trump. Neither threatens a specific target and both sound figurative and hyperbolic. So: the government probably can't satisfy the objective test (that a reasonable person would read these as sincere threats), let alone the subjective test (what he intended). It's likely protected by the First Amendment. Legally.

Practically, this sort of thing will get you arrested, if someone happens to catch a cop's attention with it. Stuff that is far more clearly satirical results in arrest and prosecution all of the time. Usually the people arrested are a lot less privileged than a Rutgers professor, and it's much easier to be arrested if you say something mean about police officers. But these tweets were close enough to the line (especially read out of context, as cops tend to read such things in the heat of the moment) that an arrest isn't surprising. You might even wind up having to take a case like this to trial if you get charged. Allred's threatening to sue — but if it's on the theory that his speech was protected, he'll probably lose, because the speech is close enough to the line that the cops are likely protected by qualified immunity even if a judge agrees that the tweets were only hyperbole.

I think that the tweets should be protected, embedded as they are in a figurative expression of rage. But Allred's an asshole. If I were one of his co-workers, or students, I would be a little worried about being around him, because I wouldn't be sure that these are hyperbole. If I were his employer, I'd spend the whole day dealing with the fallout and trying to weigh risk and liability and the fears of other employees.

(The flip side is that far worse stuff gets said online all the time without anyone taking action — because law enforcement is arbitrary and capricious.)

Dateline: San Diego. Matt Harrigan, founder of PacketSled, is nonplussed:

holdmybeer

This ends with Harrigan resigning his position and, I suspect, waiting for a visit from the Secret Service.

This, too, was likely protected speech. As I explained in 2012 when jackasses were incensed over Obama's reelection, threats against a President or President-elect are subject to a true threats analysis as well. Under the federal statute prohibiting such threats, there are two questions: (1) would the statement be understood by people hearing or reading it in context as a serious expression of an intent to kill or injure the official? and (2) did the defendant intend that the statement be understood as a threat?

Here, Harrigan was talking to Facebook followers, and the statements were part of a stream of rage. Despite the fact that he offered details about how he would kill President-Elect Trump, given the context and audience reasonable people probably wouldn't take this as a genuine statement of intent to do harm, and it would be difficult to prove he meant it that way. People familiar with the context would likely interpret it as the venting of someone who is accustomed to getting his way suddenly being thwarted. Therefore it's likely protected by the First Amendment, and because it's part of hyperbole, ought to be. But it's damned close to the line.

Once again, this sort of outburst gets people arrested all the time. Sometimes it gets people charged. Sometimes it results in convictions. Harrigan is well-positioned to skate because he's an affluent white techbro on Facebook. If you're a disturbed jobless nobody or a prisoner, you may get convicted, even though objective analysis ought to suggest that your rant is even more impotent and unlikely than Harrigan's. "Reasonable person" analysis tends to discredit threats from people like Harrigan and Allred and credit threats from people who are offensively dark, poor, incarcerated, or unbalanced in a way that does not lead to tenure. That's the way the system works. Sorry, no refunds.

Lawsplainer: About Trump "Opening Up" Libel Laws

Donald Trump famously said he'd like to "open up" libel laws. How much should that concern you?

From my perspective — as a First Amendment advocate and an opponent of Trump — it should concern you as an attitude about speech, but not much as a policy agenda.

Let's start with what he said.

"One of the things I'm going to do if I win, and I hope we do and we're certainly leading. I'm going to open up our libel laws so when they write purposely negative and horrible and false articles, we can sue them and win lots of money. We're going to open up those libel laws. So when The New York Times writes a hit piece which is a total disgrace or when The Washington Post, which is there for other reasons, writes a hit piece, we can sue them and win money instead of having no chance of winning because they're totally protected," Trump said.

I begin with the proposition that Trump is a bullshitter. The polite way to put that is that he says things that are not intended to be taken as factual statements. Was this one? Was it merely emotive? Did he think he could do this sort of thing? It's anybody's guess. My guess it that it was mostly bullshit — worrying in terms of his attitude towards free expression, but not a policy agenda.

Let's talk about the substance, such as it is.

Trump complains about the press being able to run "hit pieces" and purposely "negative and horrible and false" articles. Part of that is true and part is false. The press can absolutely run hit pieces and negative and horrible articles. We don't have sedition laws any more, and it's not illegal to be biased or "unfair" in a philosophical sense. Only false statements of fact can be defamatory. Arguments, characterizations, insults, and aspersions can't be, unless they are premised on explicit or implied false statements of fact.

When a public figure like Trump sues for defamation, they must prove that the defendant made a false statement with actual malice — that is, they must show that the statement was false and that the defendant either knew it was false or recklessly disregarded whether or not it was false. "Reckless disregard" means something like deliberately ignoring manifest signs that the statement was false. That's been the standard since New York Times v. Sullivan in 1964. Note that even under this standard, a media outlet that wrote a "purposely . . . false" statement of fact can be held liable. It's a difficult standard, but it can be done, as Rolling Stone found out this month.

So. There are two impediments to Trump and his sympathizers being able to sue whomever they want for "hit pieces" or "negative" and "horrible" statements. First, there's the requirement that defamation involve a statement of fact, not an opinion or insult. Second, there's the actual malice standard that applies to defamation claims against public figures.

Trump doesn't have a clear way to "open up" either one.

Defamation is a creature of state law, not federal law. When you sue someone for defamation, you do so under a statute or the common law of one of the states, not under federal law. You might sue in federal court if that court has jurisdiction (a tedious discussion I'll spare you today), but that doesn't make defamation law federal — you'd still be suing under state law. Federal law touches defamation law only to this extent: since 1964 both state and federal courts have applied First Amendment standards to defamation claims, and First Amendment law is often developed by federal courts. In addition, a few overarching federal laws limit state defamation law (for instance, Section 230 of the Communications Decency Act, which says that a service provider isn't liable for defamation based on what a user posts, and the SPEECH Act, which prevents enforcement of foreign libel judgments in U.S. courts unless those judgments comply with First Amendment standards).

As President, Trump will appoint federal judges, from the Supreme Court to the various Courts of Appeal to the trial judges on the many District Courts. But that's not a clear or easy path to "opening up" defamation law and changing either the actual malice standard or the requirement that defamation involve false statements of fact. The Supreme Court has supported the First Amendment very strongly in the last generation, particularly in comparison with other rights. The Court has repeatedly rejected recent attempts to create new exceptions to the First Amendment or to narrow it. Consider Snyder v. Phelps, in which the Supreme Court ruled 8-1 that Westboro Baptist Church protests at funerals were protected speech. That represented a firm refutation of the notion that speech could be limited because it is hurtful or offensive. Or consider the somewhat obscure but incredibly important United States v. Stevens, in which the Court — ruling 8-1 again — overturned a federal law against "crush videos" (don't ask) and sternly rebuked the government's position that courts can create new ad hoc exceptions to the First Amendment based on a weighing of the value of speech. Or consider Reed v. Town of Gilbert last year, in which the Court unanimously (though with some justices taking a different route) held the line on the idea that laws that restrict speech based on content are subject to strict scrutiny.

Unlike, say, Roe v. Wade, nobody's been trying to chip away at Sullivan for 52 years. It's not a matter of controversy or pushback or questioning in judicial decisions. Though it's been the subject of academic debate, even judges with philosophical and structural quarrels with Sullivan apply it without suggesting it is vulnerable. Take the late Justice Scalia, for example. Scalia thought Sullivan was wrongly decided, but routinely applied it and its progeny in cases like the ones above.1 You can go shopping for judicial candidates whose writings or decisions suggest they will overturn Roe v. Wade, but it would be extremely difficult to find ones who would reliably overturn Sullivan and its progeny. It's an outlying view — not chemtrail-level, but several firm strides in that direction. Nor is the distinction between fact and opinion controversial — at least not from conservatives. There's been some back and forth over whether opinion is absolutely protected (no) or whether it might be defamatory if it implies provably false facts (yes) but there's no conservative movement to make insults and hyperbole subject to defamation analysis. The closest anyone gets to that are liberal academics who want to reinterpret the First Amendment to allow prohibitions of "hate speech" and other "hurtful" words. It seems unlikely that Trump would appoint any of these.

In short, there's no big eager group of "overturn Sullivan" judges waiting in the wings to be sent to the Supreme Court. The few academics who argue that way are likely more extreme on other issues than Trump would want.

So: whether or not Trump really wants to "open up" defamation law, it's unlikely he can.

The statement remains concerning, though, because it displays a contempt towards First Amendment values and freedom of the press. It carelessly conflates false statements and negative coverage. It encourages the public to scorn First Amendment rights, and the public already does that enough already. It also likely encourages defamation litigation, which by its nature silences speech through the expense and stress of litigation even when the defendant prevails. For those, I condemn Trump.

Popehat Signal: Dutch Blogger Sued In Florida For Criticism of Junk Science

New Popehat Signal courtesy of Nigel Lew.  Thanks, Nigel!

New Popehat Signal courtesy of Nigel Lew. Thanks, Nigel!

It's time for the Popehat Signal, in which I request help for people whose speech is threatened by bogus and censorious lawsuits.

Pepijn van Erp blogs about science and pseudoscience from the Netherlands. He praises good science and skewers and critiques the bad. Wait a minute. Is that the Jaws theme playing? Yes. Yes it is — because blogging about junk science is a great way to get threatened or sued. In my experience, purveyors of "non-mainstream" science are unusually litigious and sensitive to criticism. You've seen it here at Popehat with "atavistic" cancer theorists and vaccine truthers and naturopaths and fans of questionable cancer remedies and AIDS deniers. I blame the crystals.

Pepijn wrote about a guy named Ruggero Santilli. I see that Wikipedia, which has a four thousand word article about Bigfoot, notes that some scientists view Santilli as a "fringe scientist."

Image of Professor Santilli courtesy of http://www.i-b-r.org/Prof-Santilli-faces.html, used for criticism and reporting.

Image of Professor Santilli courtesy of http://www.i-b-r.org/Prof-Santilli-faces.html, used for criticism and reporting.

Why is he viewed that way? Well, you can read Pepijn's post about Santilli's claim that he discovered a new type of gas from specially distilled water. Or you could read Pepijn's post about Santilli's claim that antimatter produces "antimatter-light" that can be focused using concave (NOT convex. NEVER convex.) lenses.2 Santilli, unhappy, threatened to sue over the posts, claiming that Peijin van Erp has not only defamed Santilli, HE'S DEFAMED ANTIMATTER:

antimatter

[Why have scientists not accepted Santilli's theory of magic gas and anti-light? According to one of his supporters it's because of Jews.]

Pepijin's letter in response is everything you could hope for, pointing out that Santilli was threatening the wrong people by targeting his associates, that Santilli's threats of Dutch criminal charges were bumptious, that he had explained the factual basis for his opinions (which were framed as opinions), and that one of the articles was three years old and past the statute of limitations according to a helpful article on the threatening lawyer's own web site.

Santilli was not satisfied and has now filed suit in Florida, as one does. The lawsuit — which you can find here — is odd. Santilli has sued Pepijn van Erp, naturally. He's also frivolously sued van Erp's blog host, Hosting2Go, even though Section 230 of the Communications Decency Act plainly makes the host immune from defamation suits over the content supplied by a blogger. He's also sued Frank Israel, head of the Dutch Skeptics Foundation, apparently because van Erp is a member of that foundation. (Flailing at skeptic foundations associated with skeptic bloggers is classic censorious-junk-scientist behavior).

The arrogant, entitled, malicious, censorious, and frivolous-to-the-point-of-sanctionable nature of the lawsuit is best captured by this paragraph:

It is recognized in the scientific community that when one disagrees with the scientific findings of another, the proper forum for challenging the science is through respectful debate, research and publication of peer reviewed articles based on inconsistent scientific findings and is not customarily attacked through blogs without peer review.

Yeah, peons. You're not allowed to question antimatter-light on your blogs.

Anyway, through his attorney Joseph E. Parish, Santilli is suing over the terms "fringe scientist", "mad professor", and "cunning scam artist". In my view, van Erp's posts very clearly establish these as opinions based on stated facts. Moreover, the inclusion of the host is simply vexatious, and the inclusion of Israel is inexplicable. This is thuggish harassment of criticism of junk science.

Van Erp (and possibly Israel) could use help. Even though the case is rather patently meritless, it could cost a ruinous amount of money to defend. I do not understand that skepticism makes people rich, and very few people can afford modern litigation, even when they are completely in the right. I understand that they can contribute to their defense but that they are hoping that an attorney admitted in Florida will accept the case at a price point bearing in mind the First Amendment issues involved.

As always, your freedom to speak — and mine — depend upon lawyers standing up against vexatious and unethical censorship-by-litigation like this. If you are a Florida attorney and would like to help, please contact me at ken at popehat etc.

Let me end with this: what kind of "scientist" responds to criticism of their scientific theories with litigation rather than proof?

No, the Middle Finger is not "Obscene"

If you think this is "obscene," then you don't know what that word means (at least legally speaking)

If you think this is "obscene," then you don't know what that word means (at least legally speaking)

The finger is not obscene.

Every so often, a case pops up where some prosecutor decides to press charges on someone for giving the bird. The most recent one, overturned on appeal, was in Commonwealth v. Waugaman. Mr. Waugaman flipped off his ex wife after dropping off his kids to her. From the facts, it also sounds like he was being sort of a douche aside from that. But, the charge was (in part) “disorderly conduct” based on “obscene language or gesture.” (Op. at 2). He was found guilty of that charge, and sentence to 90 days probation and costs.

In order for something to be “obscene” it must meet the Miller test. The court must ask:

1) whether the average person applying contemporary community standards would find that the work as a whole appeals to the prurient interest;
2) whether the work depicts or describes, in a patently offensive way, sexual conduct defined by applicable state law; and
3) whether the work lacks serious literary, artistic, political, or scientific value. Miller v. California, 413 U.S. 15, 16-17 (1973). 


So lets do an exercise. Read the following passage:

My sweet little whorish Nora I did as you told me, you dirty little girl, and pulled myself off twice when I read your letter. I am delighted to see that you do like being fucked arseways. Yes, now I can remember that night when I fucked you for so long backwards. It was the dirtiest fucking I ever gave you, darling. My prick was stuck in you for hours, fucking in and out under your upturned rump. Letter from James Joyce to Nora Barnacle (1909)

Does it appeal to the “prurient interest?” Well, what the fuck does that mean? Pretty much it means that it has to turn you on. Do you have a chubbie or a snail trail from that? I mean, I guess someone could sploosh over it, but then again, there are people who are sexually aroused by balloons and sports mascots. But, in my “contemporary community” if you tossed that in a fortune cookie on a date, chances are pretty low that you’d be getting laid that night. Well, unless your date was a huge Joyce fan. Which is sort of hot in itself, I guess. But, to focus here — I don’t think so. But, lets pretend it does.

Does it depict sexual conduct? Sure. How about in a “patently offensive way”? Depends on who you ask, no? Is that patently offensive? Looks to me a lot less offensive than an average conference call with yours truly, but I’m not exactly the norm, I suppose.

Does it have serious literary, artistic, political, or scientific value? Well, it turned out to be necessary to my academic study of James Joyce’s Ulysses in the context of a law review article. See Ulysses: A Mighty Hero in the Fight for Freedom of Expression, 11 U. MASS L. REV. 268, 295-296 (2016).

So, I’d say “fuck no, its not fucking obscene you chucklefuck.” But, I can’t even see how the written word could ever be called legally obscene. (1)

So, what about the middle finger? Obscene gesture? The prosecutor in the Waugaman case said that it was obscene, because the guy’s children saw it, and they “may well have seen their father’s conduct in relation to their mother as explicitly sexual in nature.” (Op. at 3).

But really, does it “appeal” to the prurient interest? On that first element, the Pennsylvania court called bullshit. It cited to, believe it or not, another case dealing with this same chickenshit type charge. Brockway v. Shepherd, 942 F. Supp. 1012, 1016-17 (M.D. Pa. 1996) (“using a base term for sex does not change the disrespectful, inoffensive communication into one that appeals to the prurient interest. It would be a rare person who would be ‘turned on’ by the display of a middle finger or the language it represents…”).

Don’t get me wrong, Waugaman is a dick. You don’t flip off the mother of your kids, swerve toward her in the parking lot, and then peel out of the parking lot, unless you’re a huge bag of douche. But, a criminal conviction for flipping someone off? Both the prosecutor and the trial judge just might need some therapy if they were willing to press this and permit a conviction.

_____
(1) The only “written word” obscenity case that I am aware of since the 1930s is a 2008 case from the Western District of Pennsylvania. In 2008 Karen Fletcher was prosecuted and later plead guilty to six counts of distributing obscene materials online. Fletcher had posted fictional stories on her website containing graphic descriptions of torture and molestation of children. United States v. Fletcher, No. CR 06-329 (D. Penn. 2008). Despite the fact that U.S. courts usually refrain from finding obscenity in text-only cases, Fletcher’s case was a prime opportunity for “obscenity” opponents to obtain a conviction based on text alone. Fletcher’s agoraphobia was a driving force behind her pleading guilty in lieu of trial. See Paula Reed Ward, Afraid of Public Trial, Author to Plead Guilty in Online Obscenity Case, PITTSBURGH POST-GAZETTE, (May 17, 2008). She ultimately got sentenced to house arrest, which is a pretty cool sentence for an agoraphobic person.

Private Porn Shoots! Brilliant? No.

Screen Shot 2016-11-06 at 2.15.55 PM

I often get asked the question, "why isn't porn prostitution?" That led to a post a while back, Why is Prostitution Illegal, but Pornography is Not? And, perennially, a reporter will call me up and want a class on it. See, e.g., What's the Difference Between Porn and Prostitution? Being asked this so many times, I finally wrote a 42 page law review article answering that question in more detail. Suffice to say that I know this shit. Yeah, my mom is super proud.

What I wish I had put in that my law review article is the answer to the now-more-frequent follow up question, "If I bring a camera to a date with a hooker, does that make it legal?" How about if I set up a brothel, but call it a "film studio?"

Nice try.

As I explained in The Freedom to Film Pornography, courts that have considered the issue of porn v. prostitution acknowledge that you can't just add a camera to a crime and call it "art." Otherwise, criminals would just strap on a helmet cam and go act like super-predators that haven't been brought to heel, right?

In the case of pornography, the actors are paid to be in the film, not for the sexual act. They are not filming prostitution, they are filming a sexual performance, and prohibiting this would be an unjustified infringement upon free expression. Accordingly, the state can not use a prostitution statute as a back door prohibition on adult film production.

Screen Shot 2016-11-06 at 1.51.00 PMSo where is the line?

It will partially depend on the state. State prostitution statutes fall into two categories: Sexual gratification prohibitions, or sexual contact prohibitions.

If you're in a gratification prohibition state, like California or New Hampshire, then the law will prohibit you from exchanging money for sexual gratification. However, exchanging money for sexual performances is ok. See People v. Freeman, 758 P.2d 1128 (Cal. 1988); State v. Theriault, 960 A.2d 687 (N.H. 2008). If you're in a contact state, then the performance might technically fit the prostitution statute, but either the First Amendment or the state constitution's free speech clause will protect the creation of a bona fide production.

So, why can't we just stick a tripod up and run a brothel?

I really shouldn't publish this. I get a handful of calls per year from guys who think they're the first geniuses to come up with the great idea of setting up a "Freeman Brothel" and calling it a "film studio." They're all disappointed when I tell them that they're not getting away with this "brilliant plan" unless they take so many steps to make it look legitimate that it will, in fact, become a legitimate porn production enterprise — in which case, why bother with the ruse in the first place?

So, lets just go over a few of the details.

If you get arrested, you're going to need to show that you were indeed creating a film, rather than just creating evidence of a crime. IEven a third-rate prosecutor will be able to call out your bullshit, if bullshit it is.

What makes a bona fide film?

That can be a pretty low standard.

In State v. Theriault, Mr. Theriault came about as close to the line as I can imagine. Robert Theriault was working as a court security officer when C.H. and J.S. came into the court to pay some fines. Theriault learned that the woman was “in a dire financial situation.” He then asked the couple if they “needed employment.”

After informing them that he could not discuss the job at the courthouse, he met them in a parking lot behind a bank. The defendant asked the couple if they wanted to make “f . . . flicks.” The defendant specified the details: he would pay them fifty dollars per hour, he would rent a hotel room, and they would use temperature blankets and different condoms while the defendant videotaped them having intercourse. (Theriault, 960 A.2d at 688)

If that sounds shady, at least Theriault conditioned the offer on the taping taking place in a private hotel room “so [they] didn’t feel uncomfortable.” The State charged him with violating the prostitution statute by offering to pay another to engage in sexual contact.

The New Hampshire Supreme Court succinctly summarized the issues as follows:

The facts boil down to the defendant offering to remunerate the couple to have sexual intercourse while being videotaped. There was no evidence or allegation that the defendant solicited this activity for the purpose of sexual arousal or gratification as opposed to making a video. The State did not charge the defendant under the “sexual contact” portion of the statute and therefore there was no finding by the trial court that the defendant acted for the purpose of sexual arousal or gratification. Thus, if the statute constitutionally prohibits the defendant’s conduct, a request to pay two individuals to make a sexually explicit video would be unprotected under the free speech guarantees of the State Constitution. (Id. at 690)

Despite Theriault’s unorthodox proposal, the only evidence in the record was that Theriault intended to make pornography — not that he was just videotaping his jollies.

So what about your hypothetical "Freeman/Theriault Brothel?"

Lets go over the details…

When you get busted, will there be evidence that you're actually making a film? Is the "director" also starring in the movie. That's a pretty sure sign that you're fucked, so to speak.

In United States v. Roeder, 526 F.2d 736, 737 (10th Cir. 1975) the defendant was prosecuted under the Mann Act. The Mann Act prohibits the interstate transportation of any individual in order to have that person engage in prostitution. Roeder was convicted when he was prosecuted for driving a woman from Missouri to Kansas to be in a porn film. Since Roeder hired her to engage in sexual conduct, drove her across state lines for that purpose, it met the definition of “prostitution.” The Tenth Circuit upheld the conviction. The key fact was that Roeder himself was going to be in the movie along with the woman. Therefore, “he fulfilled not only the broad Supreme Court definition of prostitution, but the more basic and narrower understanding of prostitution by being the ‘customer’ who paid a woman to have sex with him.”

So, are you Roeder? Are you going to pay a girl to screw you on camera? Then don't expect a Freeman style defense to be easy. Not impossible, but not easy. If not, who is going to film the sex acts? You gonna charge a guy $1,000 to screw a girl, and some other dude is in there with a camera? I can't even jerk off to a porn video if the camera pans to the dude's face. I'm gonna bang a girl with someone holding a go-pro aimed at my taint? That might turn some of your clientele on, but that's not gonna work for mass market.

Who booked the girl? How about the guy? Who is the guy? Is he an actor? Is he someone that anyone wants to see in a porn movie? Sure, that's just a matter of taste, but if this bust takes place in a hotel room in Vegas, where the "male lead" has the same mass-market sexual appeal of Karl Rove, and he just so happens to be in town for the National Association of Manufacturers conference, and he is starring in his first porn production, and the production took place on Saturday night after a bunch of drinks and blow, how the fuck do you think it looks, dumbass?

Ok, lets say that it looks legit. Frankly, at that point, it looks about as legit as a rusty 1976 Econoline van with "FREE CANDY" spray painted on the side, with you driving in a clown suit with an ether soaked rag in your hand. But, if you already got this far, and you're not yet convinced, you're a special kind of stupid… so lets continue.

Lets see your 2257 records.

What are those?

What are those, asks the "porn producer?" Those are required for any commercial porn, or porn that you think might wind up being commercial, under 18 U.S.C. § 2257? Did you take a copy of the two (or more) actors' ID cards? Did you keep them? Did you cross reference them? No? That's a five year felony, you imbecile.

So you're gonna tell Charlie Conventioneer that he can come to your handy dandy Freeman Brothel, and all he has to do is pay you for the girl, AND let you take a copy of his ID, and then he bangs the girl while some other guy runs around the room filming it?

And even if he agrees to all that, you still might not win.

How about other facts? Do you have any storyboards? Do you have any scripts? Ok, lots of porn productions don't. Do you have a business plan? Any way that you intend to distribute it? What kind of camera are you using? Is this your first porn video?

Are you really going to argue that this is just for your private collection? Do you HAVE a private collection? If it is for a private collection, how did all these people wind up in your hotel room?

There is no one fact that will be dispositive, and you could certainly be a rank amateur, like Theriault, and get away with it — but, if you're just trying to throw a First Amendment cover over genuine prostitution, no judge or jury is likely to believe you.

But, by all means, give it a try.

I'll do my best to defend you, but you're gonna have to pay your money up front.

No, it isn't going to be cheap.

Yes, Vote Swapping, Vote Pairing, Trump Trading is Legal

From Swingvoteswap.com.  It was very tempting to play the double entendre game, but ah, fuck it ... I can tone it down once and a while.

From Swingvoteswap.com. It was very tempting to play the double entendre game, but ah, fuck it … I can tone it down once and a while.

There are a bunch of websites out there offering "vote swapping" or "vote pairing" or "Trump trading" or "vote pact" whatever you want to call it. The Reddit-lawyers are certain that this is "illegal." It is not illegal.

The idea started in 2000, when swing state voters who wanted to vote Green decided to hook up with safe-state voters who were voting for Gore. A Gore voter in Massachusetts would agree to vote for Nader instead. A Nader voter in Florida would agree to, in turn, vote for Gore. That way, the Greens get that much closer to 5% of the overall popular vote, thus getting federal matching funds in the next election – but it didn't risk pushing Bush into the White House.

In 2000, there was some question as to whether the idea was legal. I didn't have much question about it — it seemed perfectly First Amendment protected to me.

And, today, it seems to be coming around again — with a few websites and apps offering to pair you with a voter in another state to discuss swapping votes. In fact, there are a few that are even weighing what a vote is worth – so you might get three or four votes for Gary Johnson in California in exchange for a Nevada Clinton vote. Presumably, you can do it for a Trump vote too.

Of course, as soon as this popped up, it took about 30 seconds for the "Reddit Lawyers" to decide that this had to be illegal. I keep getting emails about it from people who are certain it is illegal. I guess they didn't do a little bit of research before complaining to me.

I actually wrote a paper on this issue in grad school (that I published), and then a few years later I upgraded the work to a thesis, which I then also published. The 9th Circuit cited that work (twice!) in coming to the conclusion that it was, indeed, First Amendment protected activity. See Porter v. Bowen, 496 F.3d 1009 (2007).

No, the ABA Did Not "Censor" a Story About Donald Trump Being a Censorious Asshat

Why would I need to "censor" anything? I can destroy the world by accrediting another branch of Cooley Law!

Why would I need to "censor" anything? I can destroy the world by accrediting another branch of Cooley Law!

The story about the ABA “censoring” Susan Seager is not what it seems. One Newspaper reported “US lawyers 'too scared' to publish report on Donald Trump baselessly suing people – in case he baselessly sues them.” (source) With everyone falling over themselves to complain about Donald Trump and censorship, the real victim seems to be the facts – not free expression.

First, let me introduce you to the characters:

Susan Seager: She is a kick ass writer and a kick ass First Amendment lawyer. I admire her. She’s on a mission to inform us that we need more Anti-SLAPP laws.

Donald Trump: A censorious ass-hat. ‘Nuff said.

The ABA: I have previously called them "the most worthless bunch of do-nothing abject imbeciles in the history of any trade association.” I think that was not harsh enough.

If you listen to every commentator on the story, Seager submitted an article that criticized Donald Trump. The ABA then refused to publish it, because they were afraid that Trump would sue them.

What really happened?

Seager submitted an 15-page law review article to The Communications Lawyer, an ABA law journal. In the 6,500 word, 81 footnote article, the vast majority of the content was untouched from her original draft. But, the publisher of the Journal wanted some changes. Seager wasn’t happy about it, and documented a lot of the requested edits.

For example, Seager writes:

My catchy and accurate headline, “Donald J. Trump Is a Libel Bully but Also a Libel Loser” would be changed to the bland “Presidential Election Demonstrates Need for anti-SLAPP laws.”(source)

She also complains that they wanted other changes:

My first sentence, “Donald J. Trump is a libel bully” would be replaced by the dull wording, “One of the many interesting facets of this year’s Presidential campaign has been the multiple attacks on the media, the First Amendment, and the judicial system itself by one of the candidates, Donald J. Trump.”(source)

You can see all of the edits in (this Washington Post breakdown). One notable one is here:

Original: Trump has zero sense of humor. But, boy, can he file a hilarious lawsuit! He proved that much when he sued HBO Real Time cable television show host Maher for not making good on Maher’s joke that Maher would donate $5 million to charity if the orange-haired and orange-tinged Trump could provide a birth certificate showing that Trump was not the “spawn of his mother having sex with an orangutan.”

Edit: Trump proved he can file a hilarious lawsuit when he sued HBO Real Time cable television show host Maher for not making good on Maher’s joke that Maher would donate $5 million to charity if Trump could provide a birth certificate showing that Trump was not the “spawn of his mother having sex with an orangutan.” (source)

I do a lot of writing too. Popehat doesn’t edit my work, but CNN sure does. I can assure you that most of my CNN articles didn’t look exactly the way they do when CNN hits “publish.” In fact, my first drafts are full of ad-hominem attacks, colorful language, and tangential arguments that attack pet peeves of mine. Fortunately, I have editors there that help me tighten it up, suggest changes, and remove distractions from the main point. If you look at the ABA’s edits, that’s what the vast majority, if not all of them, do.

Look up above, where Seager complains that the ABA suggested changing her first sentence. As a lead sentence, her version, well… sucked. The ABA’s suggestion is what a lead sentence should be – a short, tight, best-you-can summary of what you’re really talking about. The headline? I think the ABA’s is better than hers too. The real mission that Seager is on here is to show that we need better Anti-SLAPP laws, right? Or is her real mission to just jump up and down and mock Trump? The “orange” discussion suggests that it is the latter. Sure, it’s was more fun to write, and maybe even more fun to read, but does it do the job at hand?

And while I too prefer to write something more fun and colorfully, and to advocate my position, that is not what an article in a journal like The Communications Lawyer is supposed to be all about. An editorial? Sure. A PopeHat article? Fuckin-a. Law journal? Not so much.

So, did the ABA “Censor” her?

That is the current narrative. But, in reality, there was no “censorship.” It is called editing. In fact, the article outlining the editorial process shows that the ABA was willing to work with her on a lot of their proposed edits. (source)

But, Seager makes clear that she simply rejected their edits. She apparently didn't even want to discuss the proposed edits. (source – “We did not refuse to publish it,” says Stevens, adding that the ABA never had a chance to discuss changes with Seager.")

I told the ABA I would not change my article and withdrew it. (source)

Later, she even admitted that part of her decision was based on the fact that the ABA could not guarantee that the article would not be out before the election.

She withdrew it. In light of some really light, and frankly good edits, she decided to take her ball and go home. Dramatic effect, over 9,000.

George Freeman, another former chairman of the forum, argued that the ABA's rejection of the article betrayed its mission. "As the guardian of the values of our legal system," he said, "the ABA should not stop the publication of an article that criticizes people for bringing lawsuits not to win them but to economically squeeze their opponents." (Source)

Freeman missed the detail that the ABA did not “stop” the publication; they offered edits. And, for the ABA to have “betrayed” a mission? In my opinion the ABA does that all the time. In fact, I think one of the ABA’s mission statements is – to completely fuck over the legal profession. I hate the ABA. I think I made that clear. But, in this case, I find myself defending it.

ABA Deputy Executive Director James Dimos said that he was concerned with the “the ad hominem arguments made in the article.” He also said, “The publishing of a partisan attack piece in the midst of a highly charged election season will certainly create the perception that the ABA is aligning with one political party against the other and will hurt our credibility with members.” (source)

He also acknowledged that by including the ad hominem, it increased the risk of litigation. This is true. No media lawyer has ever been asked for a pre-publication review, and not warned his client to tone something down to minimize the risks.

And as someone who has published my my fair share of law review articles I can assure you that editor after editor has said the same thing to me. When I submit an article, it comes back slathered in red ink. I even made changes to this very article, including removing the phrase “sucked ass,” at the suggestion of my partner and ad-hoc editor.

Seager? She makes some great points, but disproves her “censorship” claims by defending her use of “colorful” language.

I too think most lawyer articles are boring. I am a journalist at heart and try to keep the law from deadening my writing. I used lively language in my article to attract an audience beyond lawyers. .”(source)

You know what? I agree with her. I have this argument with every law review editor, every magazine editor, and my CNN editors. Every. Single. Time. Sometimes I win the debate – telling them that I think that some funny shit I put in there really makes the point. Other times, the editor insists. I’ve pulled my articles before, when I had editors I couldn’t agree with. That wasn’t censorship, that was me making an author’s choice.

And this was Seager making an author’s choice.

But, don’t get me wrong. I don’t want to reprobate Seager. I still admire her. And, I’m grateful to her. You see, she made this point at the end of her (sorry, Susan) bullshit piece claiming she was “censored.”

I am fortunate to live in California, where a special law would allow me to bring a quick motion to dismiss Trump’s speech-related claims and force him to reimburse me for my attorneys’ fees if I win. The California law is known by the confusing name, the anti-SLAPP law, meant to curb speech-chilling lawsuits known as Strategic Lawsuits Against Public Participation (SLAPP). We need more of these law in other states. .”(source)

To use one of Trump’s favorite phrases, it’s “sad” that the ABA censored my article. The ABA proved my point: that Trump chilled speech by using baseless lawsuits and empty threats.

You see what she did there? She lied. She bullshat. She played the drama card.

But you know what else she did? She got a lot of people talking about passing a national Anti-SLAPP law. In fact, I’ve yelled about this for years. I wrote a fucking law review article on it that maybe 50 odd people bothered to read. I post about it obsessively. And for all my work, for all these years, Seager accomplished more by throwing this one ball of crap into the press’ shit-slathered cage of lazy fucks who would have been kicked in the face before they graduated from my J-school than I accomplished in all that time.

So this is not a piece bashing her. This is a piece praising and thanking her. Shit, I'm even jealous of her. I couldn't have pulled this shit off.

I hope that this piece doesn’t change your mind about the ultimate moral of the story – that we need a nationwide Anti-SLAPP law.

But, we also need less bullshit. We also need fewer people to be more stupid after they read the news.

But the bullshit spread isn’t Susan’s fault. She played the game, played it well, and did her (our) cause some real good. That’s what a public relations move is about. And this Valkyrie of the First Amendment kicked some ass for the cause. Ironically, this is the same technique that Trump used to troll the media.

But, that press that we fight so much to protect? Dammit, they did a shitty job of vetting the story. About as shitty as the ABA does everything else – except editing this one article.

And Susan’s article? Far from being “censored,” you can read it right here.

I personally think the ABA's edits would have made it better. But, had she accepted the edits, we wouldn't have had a bunch of shrieking stupid journalists repeating the story and spreading the word that we really, really, need Anti-SLAPP laws.