Lawyering Is About Service, Not Self-Actualization

Around a quarter-century ago I was slouching through Evidence class when the professor called on me and posed a question about the admissibility of some witness statement. I gave a rule-bound answer: the admissibility was governed by a particular rule and would turn on specific factors and in my view weighed in favor of excluding the statement. The professor made a face and said "that wasn't a particularly profound answer." "It wasn't a particularly profound question," I replied, and the class laughed and the professor threw a piece of chalk at me. That semester I got a B- in Evidence (which at that institution was the equivalent of hauling you behind the barracks and shooting you) and an A+ in Tax. Requiescat in pace, my ability to take grades seriously.

The professor was unhappy because he was looking for an answer that interrogated the arbitrary dichotomies between admissible and not-admissible and illuminated the ways that purportedly neutral rules are socially constructed in the context of various social hegemonies and so on and and so forth. I thought all of that was swell but mostly wanted to learn how to try cases. I went on to learn actual evidence elsewhere; the professor went on to have unfortunate experiences trying to apply the rules-don't-matter attitude to actual litigation.

I repeat this story because last week Scott Greenfield and Jordan Rushie curmudgeoned it up about law schools focusing on "social justice" as a subject of instruction. That ideological bent is far more common in modern law schools, but Scott and Jordan could also have talked about schools that seek to impart a Christian view of law or a law-and-economics perspective.

Consider this exhortation by UW students Jordan quotes:

We demand a curriculum more clearly focused on the mission of creating leaders for the global common good. Such courses will provide a foundation of social justice for graduates in careers of all types, and will work synergistically with the demands above.

. . . .

Create and incorporate a new “capstone” course into the 1L curriculum with more big-picture elements of history, philosophy, critical legal studies, implicit bias, and critical race/feminist theory. The traditional 1L curriculum focuses so intensely on the minutiae of case law that it is easy to lose sight of why many of us came to law school in the first place. This course would serve to break the cycle of indoctrination and redirect student focus to the global common good.

This was, more or less, the attitude of Professor Chuck-Chalk: rules and caselaw are mundane, a distraction from Big Ideas about the common good.

Now, I have no objection to students spending three years and $150,000 learning about Big Ideas. How else are we going to manufacture the next set of people to teach about Big Ideas?

But I do have a strong objection to law schools tolerating — let alone cultivating — a disdain of the nuts and bolts of competent law practice. I especially have an objection to that disdain being cultivated in the name of "social justice." People traditionally recognized as being in need of social justice are also the people in most dire need of competent legal representation. When they have a few days to contest an eviction or they've been arrested and may lose their job, they don't need someone who is exquisitely prepared to explain and denounce the racist and oppressive structures that led to their unfortunate predicament. They need someone who knows what he or she is doing. They need someone who knows all of the petty substantive and procedural rules of landlord-tenant law and how the local court actually operates. They need someone who can swiftly assess whether an arrest or interrogation was unlawful and formulate a plausible and effective plan for dealing with it. They need someone who knows how to get things into evidence in court even under pressure on their feet when the judge is being difficult and the opposing counsel is making nonsensical objections. They need a grubby little practitioner.

People are quicker to understand this in other contexts. If a hairdresser could argue movingly that gendered hairstyles are based on antiquated stereotypes, but had no idea how to cut hair, people would generally accept that he was a poor hairdresser. If you encountered a woman in labor experiencing dangerous complications who had been too poor to get prenatal care, you'd seek a skilled high-risk pregnancy physician, not someone who had focused on learning what socioeconomic forces deprive poor women of adequate care. But for some reason — perhaps because so many dramatic social changes have come through the legal system — people don't seem to understand that lawyering requires actual tradesman skills too. Thurgood Marshall appealed to social justice when he successfully argued Brown v. Board of Education before the Supreme Court, but he didn't get there by Big Ideas alone; he got there by developing the sort of meticulous legal skills that led to an almost unprecedented win record before the court. He worked, and he didn't think he was too good to grub around with rules and precedents.

Our system is mediocre at best at delivering justice to society's least powerful. Do you want to be able to explain why? That's fine, go do that. But if you plan to address social injustice as a lawyer by actually representing its victims, it is absolutely perverse and self-indulgent to focus on theory rather than skills and rules.

Lawsplainer: Was FAU Prof. James Tracy Fired in Violation of His First Amendment Rights?

I have a question.

Of course you do.

You know that dude James Tracy?

The Florida Atlantic University professor who's a crazy conspiracy theorist? The dude who thinks that mass shootings like Sandy Hook were faked by the government? The dude who sent a certified letter to the parents of a murdered child demanding proof that the child had ever existed? Yeah. I know of him.

So I see that FAU fired him.

Yes. In December they sent him a notice of intent to fire him, with a ten-day window to respond. They claim he didn't respond. So on January 5 they sent him a letter firing him.

Can they do that?

Can who do what?

Stop being so obtuse. Can FAU fire James Tracy?

The question's way too vague. Can they fire him for what, under what?

Why are you so damned pedantic? Can they fire him for being a sicko grieving-parent-abusing whacko-conspiracy-theorist? Or is that some sort of First Amendment violation?

Okay. That's easier. I was worried you were asking me whether the termination violated FAU's collective bargaining agreement with its professors.

Oh! Good point. Did it? Can you read the CBA and tell me?

I would rather stick needles in my eyes. But, since CBAs for educators and law enforcement are generally designed to insulate them from any consequences for their actions, I would not be the least bit surprised if Professor Tracy has a decent argument that he was wrongfully terminated under the CBA. But I'm not going to research it for you.

Ok. But what about the First Amendment? Um . . . I have an embarrassing question.

Imagine my shock. What?

This dude on Twitter was saying that the First Amendment is irrelevant because it says "Congress shall make no law" and FAU isn't Congress.

Yes, that's the "let's pretend the last 100 years don't exist" argument. He's wrong.

The First Amendment by its plain language only restricted Congress. Section 1 of the Fourteenth Amendment, ratified after the Civil War, says "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." Beginning in the 1920s, the Supreme Court held that the Fourteenth Amendment necessarily applied the strictures of most of the Bill of Rights to the states, because those rights were necessary among the "liberties" protected by the due process clause of Section 1 of the Fourteenth Amendment. That process is called incorporation, and the rule that applies it is the incorporation doctrine. The Supreme Court "incorporated" the First Amendment in 1925, finding that free speech was one of the fundamental liberties protected from state infringement by the due process clause of the Fourteenth Amendment. Now most (but not all) of the rights in the Bill of Rights have been applied to the states under the doctrine.

So, Twitter dude's argument lost 90 years ago.

So, does James Tracy have a First Amendment right not to be fired from Florida Atlantic University for his speech?

Sort of.

That's not helpful.

It's a complicated doctrine, because FAU is wearing two hats: the hat of a state actor (fully restrained by the First Amendment), and the hat of an employer (not fully restrained by the First Amendment). The government has much more freedom to fire people for speech while wearing its employer hat than it has to punish people while wearing its government hat.

I discussed the issue at length in 2013, if you want cites and quotes.

In brief: when the government fires an employee for speech, courts go through a multi-step doctrine. First, they ask whether the speech was on a matter of public concern. If it wasn't — if the speech was about some petty internal squabble not of interest to the public — the First Amendment doesn't prevent the firing at all. If the speech in question is on a matter of public concern, courts engage in an alarmingly touchy-feely balancing test, weighing the government employer's interest in an orderly and efficient workplace against the speech rights of the employee. Courts take into account things like whether the speech restriction is content-based (that is, whether it censors some viewpoints but not others), the circumstances of the speech, the strength of the employee's interest in the speech, whether the speech genuinely disrupts discipline and order and interferes with workplace relationships, and so forth.

Wow. How can a government employee tell how that balancing act is going to come out?

Excellent question. They can't. But the cases allow some broad generalizations. Courts will give very substantial weight to a government employee's speech outside of work on outside public issues (as opposed to, say, speech attacking coworkers or supervisors), and will require a very substantial showing of resulting workplace disruption to allow discipline based on it. Courts will give public employers much more freedom to regulate workplace speech (by, for instance, banning pornography in the workplace) and more freedom to punish speech that threatens workplace harmony by attacking supervisors, coworkers, or "customers" (like, for instance, a teacher's blog insulting her students.)

And that ain't all. It gets more complicated.


Well, there's a doctrine under which a government employer can fire you for your speech, without using the balancing test, if your speech was "pursuant to official duties." In other words, if the speech is part of your job, you're not protected by the First Amendment. That's called the Garcetti doctrine, after the Supreme Court case that announced it.

Wait a minute. Doesn't that mean a university could fire a professor if they didn't like what the professor taught?

Sounds like it, doesn't it? Fortunately, the Garcetti court didn't resolve whether the doctrine applies to universities, and one federal appeals court has already held that it doesn't.

But if James Tracy makes a First Amendment claim against FAU, the court may not reach any of these questions.


Well, FAU claims they didn't fire Tracy for being one of America's most prominent public lunatics. They say they fired him because he refused to turn in conflict-of-interest forms listing his outside activities (like blogging and speaking), gave inconsistent statements about whether he used FAU resources for those activities, and didn't respond to requests to remedy the problem.

So is Tracy out of luck?

No, but it makes his case harder.

First, a court isn't obligated to accept FAU's claims about the reasons Tracy was fired. Tracy could argue that FAU's offered reasons were pretextual — that the real reason was his unpopular speech. Tracy might do that, for instance, by showing that other professors weren't fired for not turning in their forms, or that FAU only became concerned about the forms once public outcry about Tracy reached a recent crescendo. Tracy doesn't have to prove that his speech was the only reason he was fired; he only has to prove that it was a "substantial" or "motivating" factor in the decision. If he can make that showing and prove that FAU was actually substantially motivated by his speech (and he's got pretty good circumstantial evidence of that, I think), then a court would have to go through the balancing test described above.

(Of course, since FAU has fully committed to the we're-not-firing-him-for-speech argument, it would be much harder for them to argue that Tracy's speech was also so disruptive of the university that it justified his termination.)

Second, I suppose that Tracy could argue that FAU's conflict-of-interest-form requirement itself violates the First Amendment — that it's a violation of his free speech rights to require him to disclose and describe his outside speech about matters of public interest. In his favor, he's got the fact that courts will probably protect speech of instructors in a university environment more vigorously than any other public employee speech. But the conflict-of-interest form requirement is content-neutral (that is, it doesn't say anything like "disclose all Republican affiliations" or "explain all psychotic blogs you write") and directed towards something in which FAU has a legitimate interest. I'd be interested to see how someone fleshes that argument out.

Don't you think it's good that they fired him?

My heart says yes, but my head says no.

He seems to be a truly awful human being, or a truly disturbed one. It's hard for me to comprehend how anyone can rely on his instruction on any topic when he holds such bizarre conspiracy-theory views.

But American state universities will suppress viewpoints they don't like in a hot second if you let them. I believe in very strong barriers against them doing so, which necessary protects some evil people, just as the First Amendment protects evil speech by people who aren't professors. Also, I think that you can generally count on schools to find a pretext to fire professors for unpopular speech if you let them. That doesn't mean that professors should be able to insulate genuine misconduct by uttering unpopular speech, but it does mean that we should scrutinize academic firings very carefully when they occur in the context of public outcries about disfavored speech.

President Obama And The Rhetoric Of Rights

Today the President of the United States gave a speech about gun control measures. I don't intend to critique those measures. Nor do I mean to critique his rhetoric about gun violence. I do intend to critique his language about rights, because how our leaders discuss rights can have a powerful impact on how Americans understand rights.

Here we go.

Now, I want to be absolutely clear at the start. I have said this over and over again — this also becomes routine. There is a ritual about this whole thing that I have to do. I believe in the Second Amendment. It is there, written on the paper, it guarantees a right to bear arms. No matter how many times people try to my words around, I taught constitutional law, I know a little bit about this.

The President is invoking my Trope Eight, appeal to the authority of a law professor. Here's the problem: law professors have a habit of taking what they think the law should be and portraying it as what the law is. There are many principled law professors who make a sincere effort to avoid such disguised advocacy. But the fact that the President is a law professor doesn't make his views on the contours of rights reliable.

I get it. But I also believe we can find ways to reduce gun violence consistent with the Second Amendment. I mean, think about it — we all believe in the First Amendment, the guarantee of free speech. But we accept that you cannot yell "fire," in a theater. We understand there are some constraints on our freedom in order to protect innocent people.

Here the President invokes two tropes. There's Trope Three, "rights aren't absolute." This is perfectly true. Moreover, at the risk of calling down ten thousand butthurt commenters, there's no colorable basis to view the Second Amendment as absolute when courts have recognized exceptions to the rights conferred in other amendments. The Supreme Court only very recently recognized that Second Amendment rights are individual rights, and jurisprudence exploring the boundaries of those rights is therefore decades behind.

But observing that rights aren't absolute doesn't establish that any given law is constitutional. It's at best a start to the discussion, not an end.

The President also invoked my least favorite trope, Trope Two, "shouting fire in a crowded theater." He didn't even fully invoke it, only mentioning "fire in a theater," calling to mind a malicious effort to disrupt a showing of Glitter or something. The important thing is that the trope is just a rhetorical flourish used to repeat that not all speech is protected, culled from a case in which the Supreme Court contemptibly approved of jailing a man for protesting the draft in World War One. It's a throwaway line from a case that is now universally recognized as wrongly decided. It's a line about rhetoric, not law. Using it doesn't send the signal "I will propose principled, text- and history-based exceptions to the rights conferred by this amendment." It signals "exceptions to rights can be shaped by the whims of the majority and by the fears of the moment." That's a foolish message in this instance.

We cherish our right to privacy, but we accept that you have to go through metal detectors before being allowed to board a plane. It's not because people like doing that, but we understand that is part of the price of living in a civilized society. And what's often ignored in this debate is that the majority of gun owners actually agree — a majority of gun owners agree that we can respect the Second Amendment while keeping an irresponsible, lawbreaking feud from inflicting harm on a massive scale.

Here the President is again invoking "rights are not absolute" with another example. And it's a terrible example. The TSA offers security theater, not security. When we give up our right to privacy to be groped and scanned, we're giving it up so that politicians can say they are doing something, not to make ourselves safer. It's therefore a poor comparison to use to support a gun control program already being criticized as mere window-dressing.

The President also offers an appeal to the masses, citing the constitutional wisdom of a majority of gun owners. I should find a First Amendment example and add that to my trope list. Rights protect us from the majority; they aren't curtailed by the views of the majority, thank God.

All of us should be able to work together to find a balance that declares the rest of our rights are also important. Second Amendment rights are important, but there are other rights that we care about as well. And we have to be able to balance them, because our right to worship freely and safely — that right was denied to Christians in Charleston, South Carolina.

And that was denied Jews in Kansas city, and that was denied Muslims in Chapel Hill and Sikhs in Oak Creek. They had rights too.

Our right to peaceful assembly, that right was robbed from moviegoers in Aurora and Lafayette. Our inalienable right to life, and liberty and the pursuit of happiness, those rights were stripped from college kids in Blacksburg and Santa Barbara, and from high- schoolers in Columbine, and from first graders in Newtown.

Here the President is invoking the Second Amendment equivalent of Trope Five, saying that Second Amendment rights must be balanced with other rights. If he said that about the First Amendment, I'd say he's flat wrong. Is he wrong with respect to the Second Amendment? That's too big a question for this post. I'll just point out that it's rhetorical move that you should notice — that the proposition that we determine individual rights by balancing them with other interests is not true of at least some rights and not self-evidently true about Second Amendment rights.

The President's invocation of the rights of crime victims is a variation on the "balancing" trope. He accomplishes it by deliberately conflating different meanings of the word "rights." A constitutional right — like the one recognized by the Second Amendment — is a right to be free of government interference, a negative right. The right not to be subjected to criminal behavior by non-government actors is something else. It's not just invoked as a negative right — that is, President Obama isn't saying "you have the right to sue the estates of the killers because you had the right not to have your loved ones murdered by them." It's an ambiguous kind of positive right — the purported right to have the government do something to other people. In that sense it's like a right not to be offended, which must necessarily be enforced by the government silencing people who offend you. It's also familiar to criminal defense lawyers, who have seen it in the guise of "victim's rights."

What do you have the right for the government to do to support your right not to be attacked by crazed killers? I submit that there's no way to tell, and that the purported right impacts many parts of the constitution. Does your right not to be killed mean you have a right to demand that the government prevent me from having a gun, because (as I've discussed openly) I fight depression? Does your right to life create an obligation for the government to sentence criminals to longer sentences and not to let them out on parole? Does your right to life mean that more mentally ill people should be involuntarily confined and treated? I don't know, and I don't think that you know, either — because I think the right to have the government do things to other people for you is made up.

How broad is the individual right recognized by the Second Amendment? I don't know. I don't pretend to be a Second Amendment scholar, and we're starting nearly from scratch with the analysis. I suspect that the courts will find that the Second Amendment doesn't let you do whatever you want in connection with weapons, that it allows some forms of regulation of their ownership and use, and that both gun control advocates and Second Amendment advocates won't like the result.

But rights matter. The way we talk about them matters. You can't engage in unprincipled analysis of one amendment and expect it won't impact our rights under another amendment. The President's rhetoric was moving and heartfelt and, as a matter of what policy should be, ably argued. But it wasn't a good discussion of rights.

Tea and Unaccountability: Bureaucracy and the Drug War

Last week Radley Balko described a Kansas case in which loose-leaf tea led to a police raid. One law enforcement officer saw someone shop at a hydroponics store, and another officer conducted trash searches at the shoppers' house and found leaves, and a "field test" suggested (falsely) that the leaves were marijuana, and it was off to the races with an armed incursion into the shoppers' home, which did not in fact contain any marijuana. A federal judge in Kansas recently ruled that the officers were entitled to qualified immunity in the resulting lawsuit.

Orin Kerr took Radley to task for his rhetoric and carefully reviewed the federal judge's order. The investigation may be bungled, Orin argues, but all the judge really did is find that an officer can rely on a positive field test for drugs in establishing probable cause, at least when the officer didn't know that such field tests are notoriously inaccurate.

Radley's perfectly right to be outraged. And Orin's perfectly right to note that Radley's outrage is directed at a feature, not a bug, of the system. Law enforcement has become increasingly bureaucratic, in the sense that actors are insulated legally and politically from the consequences of their actions, and those actions are treated as dictated by circumstance rather than chosen by accountable humans.

Consider, to start, the utter lack of accountability for taxpayer money displayed in this case. The whole case arise from "Operation Constant Gardener," a Sheriff's initiative to conduct marijuana cultivation raids on April 20th because that date is considered an "unofficial holiday among marijuana users." One officer was tasked to sit in the parking lot of a hydroponics store and take down license plates and pass those plates along to another law enforcement agency in a custom-made spreadsheet. Another officer matched those plates to individuals and addresses, and another officer evaluated which addresses to visit. Having chosen a suspect and an address, two other officers visited three times to root through the trash and look for evidence. Those two officers brought the "plant material" they found to a supervisor, in part because it was "hard to identify," to solicit his input. Upon a false positive "field test" for marijuana (though the material was actually tea), an officer drafted a search warrant, a deputy prosecutor reviewed and approved it, and seven law enforcement officers conducted an armed raid on the suspect's house. When the seven officers could not find evidence of marijuana cultivation, they extended the search for a couple of hours in an effort to find personal use amounts of marijuana. They found none. The Sheriff's Office later conducted a press conference bragging of the success of Operation Constant Gardener, presumably referring to other raids.

How much did all of that cost the taxpayers? Tens of thousands of dollars, at least. Was it worth it? Would it have been worth it even if law enforcement had found a private-residence-sized marijuana grow at the house? That's not a question you'll hear asked. The War on Drugs means never having to say "sorry I wasted your money." Certainly nobody who's paid to sit in a parking lot taking down license plates, or paid to raid trash cans and squint (quite literally) at tea leaves, or paid to devise cleverly-named gestures of defiance at marijuana users and then give press conferences about it, will ever ask that question. Financially, law enforcement is unaccountable.

They're also unaccountable in terms of basic competence. There was no incentive for the officers to learn, and know, that field tests are unreliable. What does it matter to them? They get paid whether or not they're reliable, paid whether the search turns up marijuana or tea. Moreover, they're insulated from any civil liability for relying on junk science. Nor do they have any incentive to conduct corroborating investigation. The officers here could have subpoenaed the house's electrical bills to watch for unusual consumption, a tell of indoor marijuana cultivation. They could have investigated whether the house has unusual foot traffic, or whether there had been any tips about the homeowner selling drugs. Faced with hard-to-identify plant material, they could have sent it to the crime lab for a test — after all, they had already waited seven months after the initial sighting of the suspect at the hydroponics store. But why do any of those things? The bar for probable cause is set extremely low — low enough that a visit to a hydroponics store and a questionable field test result on a small amount of leaves clears it. The small amount of leaves in the trash is consistent with mere personal use of marijuana, and some would argue that a seven-officer armed raid is a disproportionate use of law enforcement force to investigate such use, but nobody's asking about proportionality and nobody's being held accountable for the lack thereof. Why not just phone in your investigation, shrug at the result, and show up for a time-and-a-half raid on the dude's house? If a hypothetical officer could objectively conclude that there's enough evidence for probable cause, why give a shit about whether the person really did it or not?

When seven armed agents of the state raid your home at gunpoint in front of your spouse and young kids, it is traumatic. But arguably the homeowner should feel relieved that nothing worse happened. The officers didn't shoot the kids' pet dog, or mistake the X-Box controller in somebody's hand for a gun and shoot them, or stumble on a step and shoot someone, or shoot the homeowner when he reacted to what he might have thought was a home invasion robbery. The officers were relatively low-key — only seven officers, only one AR-15, no flashbang grenades thrown into a baby's crib to soften the place up first. Lucky! If any of those things had happened, it's likely that the officers would not have been accountable for it. The law usually doesn't hold them accountable for such "mistakes" in the course of a raid. And nobody even talks about holding them accountable for making the decision to conduct an armed raid on an occupied dwelling — a raid in which deadly mistakes are a distinct possibility — based on the aimless, good-enough-for-government-work suspicion that maybe they're growing pot in there. Nobody's asking whether the game is worth the candle — whether the known risk to lives is justified by the ends of the War on Drugs.

Nobody asks those questions because it's a bureaucracy, and you don't ask such questions in a bureaucracy. Asking questions might make you accountable, and the whole point of the law enforcement edifice is to insulate actors from accountability and to separate cause from effect. Someone chooses to harass marijuana users on April 20 to make a point and someone decides that you can find marijuana users shopping at hydroponics stores and someone decides that a field test of an unknown substance is good enough and someone decides to get a warrant and a family winds up held at gunpoint in their own home for drinking tea. These events are treated as if they are disconnected; nobody stops to say "the end result of this will be a man prone on the floor under the barrel of an AR-15 in front of his children, so act accordingly." Nobody's responsible, say the police. It just happens. I just work here.

What Happened In The Hammond Sentencing In Oregon? A Lawsplainer

Much ink has been spilled amount United States v. Hammond, the federal criminal prosecution cited by militia members as one of the motivations for taking over a federal facility in Oregon. The increased sentence imposed on the Hammonds has been cited as a sign of government abuse. But the sentencing itself is not remarkable.

In 2001 Steven and Dwight Hammond set a fire on their property that spread to public land. In August of 2006 they set a back burn near the boundary of their land to respond to a lightning-kindled fire; that fire burned a small amount of public land. The federal government charged the Hammonds with various crimes, including Title 18, United States Code, section 844(f)(1):

(1) Whoever maliciously damages or destroys, or attempts to damage or destroy, by means of fire or an explosive, any building, vehicle, or other personal or real property in whole or in part owned or possessed by, or leased to, the United States, or any department or agency thereof, or any institution or organization receiving Federal financial assistance, shall be imprisoned for not less than 5 years and not more than 20 years, fined under this title, or both.

The Ninth Circuit summarized part of the trial evidence as follows:

Although the Hammonds claimed that the fire was designed to burn off invasive species on their property, a teenage relative of theirs testified that Steven had instructed him to drop lit matches on the ground so as to “light up the whole country on fire.” And the teenager did just that.

A jury convicted the Hammonds of the Section 844 charge, acquitted them on other charges, and failed to reach a verdict on additional charges. While the jury continued to deliberate on the remaining charges, the Hammonds and the government reached a deal: the Hammonds would not appeal the verdict and the government would recommend that the Hammonds could stay out on bail pending sentencing and that the government would recommend that their Section 844 sentences be served concurrently — that is, that though the Hammonds were convicted of multiple counts of Section 844, each carrying a mandatory minimum five-year sentence, the government would recommend that those five-year terms not "stack," but result in just one five-year sentence.

At sentencing, the United States District Judge on the case refused to impose the five-year mandatory-minimum sentences required by Section 844, ruling that to do so would violate the Eighth Amendment's prohibition on cruel and unusual punishment. The court instead imposed sentences of twelve months and a day on the father1 and three months on the son.

The government appealed the sentence, and the United States Court of Appeals for the Ninth Circuit reversed and sent the case back, instructing the trial court to impose the statutory mandatory minimum sentence. The Court found — rather convincingly, given the precedent — that a five-year sentence for arson does not violate the Eighth Amendment:

Given the seriousness of arson, a five-year sentence is not grossly disproportionate to the offense. The Supreme Court has upheld far tougher sentences for less serious or, at the very least, comparable offenses. See Lockyer v. Andrade,
538 U.S. 63 (2003) (upholding a sentence of fifty years to life under California’s three-strikes law for stealing nine
videotapes); Ewing v. California, 538 U.S. 11 (2003) (upholding a sentence of twenty-five years to life under California’s three-strikes law for the theft of three golf clubs); Hutto v. Davis, 454 U.S. 370 (1982) (per curiam) (upholding a forty-year sentence for possession of nine ounces of marijuana with the intent to distribute); Rummel v. Estelle, 445 U.S. 263 (1980) (upholding a life sentence under Texas’s recidivist statute for obtaining $120.75 by false pretenses). And we and other courts have done the same. See, e.g., United States v. Tolliver, 730 F.3d 1216, 1230–32 (10th Cir. 2013) (upholding a 430-month sentence for using arson in the commission of a felony); United States v. Major, 676 F.3d 803, 812 (9th Cir. 2012) (upholding a 750-year sentence for offenses under 18 U.S.C. § 924(c)), cert. denied, 133 S. Ct. 280; United States v. Meiners, 485 F.3d 1211, 1212–13 (9th Cir. 2007) (per curiam) (upholding a fifteen-year sentence for advertising child pornography); United States v. Uphoff, 232 F.3d 624, 625–26 (8th Cir. 2000) (upholding a five-year sentence for arson of a building).

So the district court resentenced the Hammonds. The government asked for the five-year mandatory minimum but kept its deal to recommend concurrent sentences (rather than stacking two counts of Section 844 to form a ten-year sentence), and the court agreed and imposed that sentence. The Hammonds will necessarily serve 85% of that sentence, less the time they've already served.

Was the five-year sentence cruel and unusual?

It's arguable whether the five-year sentence is colloquially cruel and unusual, or whether the law should treat it as a violation of the Eighth Amendment. But there's no serious argument that the sentence is cruel and unusual under existing Eighth Amendment precedent. The Supreme Court and lower courts have upheld far harsher sentences for far less serious conduct. The Eighth Amendment still has vigor when applied to the death penalty and some conditions of imprisonment, but under modern jurisprudence it does not place any significant limit on the length of imprisonment that may be imposed for convictions. That may not be what the law should be, but it's what the law is, and has been for some time.

Was the mandatory minimum sentence unusual, or unusually imposed?

The Hammond case provided a straightforward application of a statutory mandatory minimum sentence. If you accept the premise of the jury's verdict — that the jury found that the Hammonds maliciously burned government land — then the case does not stand out. Longer mandatory minimums are routinely imposed for less culpable conduct. That doesn't make it right; it just makes it banal.

Was it unusual for the government to appeal the sentence, or for the Hammonds to be returned to jail after serving the original sentence?

Absent a waiver, both the government and the defense have the right to appeal a sentence. Federal prosecutors generally must seek approval from "main Justice" — the Department of Justice in Washington D.C. — before appealing a ruling. That's so the feds don't make what they see as "bad law" by appealing "bad cases," and so the feds' legal stance remains relatively consistent across circuits.

Back in the 1980s and 1990s, before the Supreme Court ruled that the United States Sentencing Guidelines must be treated as recommendations and not as mandates, the government routinely appealed sentences when they concluded that the judge had mis-applied the Guidelines in the defendant's favor. Now that the appellate standard is "reasonableness" of the sentence, the government appeals on that basis less often, but still does so. The United States has always routinely appealed sentences when a district judge has refused to impose a mandatory minimum sentence. Traditionally the Department of Justice has jealously guarded the mandatory nature of mandatory minimum sentences, appealing judicial defiance of them even in otherwise unappealing cases.

It's therefore not unusual at all that the government appealed the Hammonds' sentence.

Nor is the Hammonds' return to prison unprecedented. If the trial court imposes a short sentence and the appellate court overturns that ruling and requires a longer sentence, that's the result. The alternative would be that trial judges could avoid appellate review of sentences by making them short enough that defendants would be done with them by the time the appellate court could review them. That might be appealing to defense lawyers, defendants, and judges who believe in the primacy of trial court discretion, but it's not the law.

The U.S. v. Hammond appeal, reversal, and resentencing are not remarkable in the context of federal criminal law. Maybe they should be, but they aren't. Any suggestion that the proceedings represent a departure from the norm are incorrect.

That's not meant as an endorsement of the result. It's meant to question why this particular exercise of federal criminal authority strikes people as so outrageous, when in fact (as we often discuss here) it's routine.

Ohio Judge Tim Grendell Is Popehat's Censorious Asshat of 2015

The votes are in. With a commanding lead of 10.2% over the nearest challenger, Ohio Judge Tim Grendell is Popehat's Censorious Asshat of 2015.


Congrats, Judge Grendell.

Honestly Grendell wasn't my choice. But I can see how he won: he's emblematic of the vapid pettiness of power. Grendell abused his contempt power in a fit of pique at insignificant criticism and offered smug Youtube-commenter-level justifications when challenged. Like many censors, he wraps himself in the First Amendment when it suits him. Electing Tim Grendell isn't about just Tim Grendell; it's about how many censorship stories are the result of authority conferred upon mediocre minds and small spirits. Never stop fighting them.

2015: Another Bad Year for Blasphemers

Popehat is pleased to offer a second guest post by Sarah McLaughlin. Sarah works for the Foundation for Individual Rights in Education (though the opinions expressed here are her own) and is interested in free speech and civil liberties. You can follow her on Twitter at @sarahemclaugh.

At the conclusion of 2012 and 2013, Ken undertook annual surveys of the state of blasphemy laws, and their enforcement, around the world. I did the same for this year, while paying close attention to the way that individuals have also played a significant role in punishing people accused of blasphemy. From the horrific January 7 Charlie Hebdo attack and Saudi Arabia’s first flogging on January 9 of blogger Raif Badawi (who was found guilty of insulting Islam in 2014 and sentenced to 1,000 lashes and 10 years in prison), there were early signs that 2015 would be another year where blasphemy would be punished harshly by governments and vigilantes alike[1].

How Blasphemy Was Punished This Year

Of the many dark entries in this year’s review, at the forefront stands ISIS. It is perhaps unsurprising that ISIS’ penal code, published in late December of last year, promises a death sentence to anyone found guilty of blaspheming Islam, Allah, or Muhammad. Who knows how many people have been executed under it this year[2]?

Saudi Arabia—which threatened to sue Twitter users who compared its justice system to ISIS'[3]—dispenses harsh punishments to those accused of blaspheming Islam in a manner fairly similar to that of a certain militant jihadist group that shall remain nameless, demonstrating the conduct that can apparently be expected from countries on the UN Human Rights Council. While Raif Badawi’s flogging punishments were halted over the course of the year, his wife claims they will soon resume and he remains imprisoned. In February, a man was sentenced to death (likely beheading, as is the Saudi Arabian way) for cursing God and Muhammad and hitting a Koran with a shoe. A month later, an Indian man was arrested (in Saudi Arabia) for liking a post with “blasphemous content,” causing it to appear on his page. That he did not intend for it to do so is apparently irrelevant. Last month, artist and poet Ashraf Fayadh was sentenced to death for apostasy, a charge apparently supported by the content of years-old poems and “the testimony of a few witnesses.” By the time Fayadh was sentenced, Saudi Arabia had already beheaded at least one hundred and fifty one people, many of whom been found guilty of nonviolent crimes including blasphemy, apostasy and, most often, drug offenses.

Like Saudi Arabia, Iran, on track to execute one thousand people this year, treats blasphemy as a serious crime—violators are usually charged with “spreading corruption on earth.” This fall, Iranian courts decided that activist Soheil Arabi will spend 7 years in prison as punishment for “insulting the Prophet” on Facebook, and must prove his faith and knowledge of Islam in monthly meetings. This is actually an improvement over his earlier sentence: death.

Saman Naseem, a 17-year-old man scheduled to be executed in February after being tortured until he admitted to being guilty of “enmity against God” and “corruption on Earth,” was missing for months in early 2015, leading his family to believe Iran had gone through with a secret execution. In July, Amnesty International learned that Naseem had been granted a retrial, so there is hope that Naseem will be found innocent, or at least given a lighter sentence. However, given that it took over two years for Iran to reach that conclusion, there’s little reason to believe that Naseem will receive fairer treatment this time from a fundamentally unfair system.

Pakistan has seen a number of convictions and killings this year as well. In March, Liaquat Ali was sentenced to death by a Pakistani court for blasphemy and a month later an assistant professor who earned his doctorate under a scholar, Muhammad Shakil Auj, who was accused of—and assassinated for—blasphemy, was shot to death in what was likely an attack inspired by his connection to Auj. In August, three men were arrested for referring to a Christian pastor as “prophet” on a poster. Then in October, Bilal Husain, a man whose father reported him to police was given the death penalty for blasphemy too. Also in October, Asia Bibi, a Christian woman[4] on death row for supposedly insulting Muhammad was moved to solitary confinement over fears that she would be killed by guards, vigilantes, or other inmates. That same month, Christian faith healer Naveed John was arrested for the apparently blasphemous act of “having Islamic script on a sword he used to treat his clients.” Pakistan has received well-earned criticism over the past few months because of the ease with which its blasphemy laws can be used as a weapon “to settle petty disputes against Christians.”

Like Saudi Arabia, Nigeria is all too willing to execute supposed blasphemers. In June, a Nigerian court sentenced Muslim cleric Aminu Abdul Nyass and eight of his followers to death for statements about Muhammad. The sentencing was held in secret because crowds at the previous trial attempted to burn down the court—their second target after burning down Nyass’ home. A Nigerian governor seemingly attempted to justify the death sentence, saying: "The concern is mobs would take extrajudicial action if these convicts are for whatever reason released because they would certainly kill them when they see them on the streets."

Though he’s wrong that the government should give out the punishments the mob wants, but in a more orderly fashion, he’s right that mobs will often act against people who they believe have insulted their gods. In a particularly horrifying example from March, a crowd in Afghanistan attacked Farkhunda Malikzada, a 27-year-old woman they believed had burned the Koran. Specifically, they beat her, ran over her body with a car and dragged her down the street, stoned her, and then lit her on fire. She received essentially no help from the police during the attack. Only days after her death was it discovered that Malikzada had never even burned the Koran in the first place—she had insulted men selling amulets by calling them un-Islamic, and they retaliated by yelling to the crowd that she had burned the Koran.

Bangladesh, meanwhile, shows how common murders like Malikzada’s were this year. In February, Al Qaeda members “taught a lesson to blasphemers” by hacking atheist Bangladeshi blogger Avijit Roy to death with machetes. A little over a month later, Oyasiqur Rhaman, a satirical blogger who mocked fundamental Islam and had mourned Roy’s death by changing his Facebook picture to an image reading “I am Avijit,” met the same fate. He was hacked to death by three men who heard that Rhaman had “made some comments against Islam,” which they had never actually even seen. Then in May, a third atheist blogger, Ananta Bijoy Das, was also murdered by men with machetes. Al Qaeda claimed responsibility for Das’ death as well. He had advocated for secularism on a blog called Free Mind, which had been moderated by Avijit Roy before his death. In August, Niloy Neel was the fourth Bangladeshi man to be hacked to death for his role as a secular blogger.

Roy, Rhaman, Das, and Neel were all on a widely-known list of secular bloggers created by groups pressuring Bangladesh to prosecute blasphemers more harshly. Bangladesh’s government was not content to let the machete-wielding murderers be the only villains in this story—after Neel’s murder the Inspector General of Police, while admitting that murder is wrong, actually asked that people report to the police secular blogs, whose contributors could face up to 14 years in prison, for “hurting religious sentiments.” What Bangladesh should do is eradicate its blasphemy laws and acknowledge that its treatment of blasphemy as a crime worthy of imprisonment encourages murderers targeting those who offend them. Instead, the Bangladeshi police have reaffirmed the notion that authority figures should violently censor speech that insults their constituents’ gods. I can hardly think of anything less safe for Bangladeshi bloggers than a public record of police investigations into their criticism of religion.

Threats and violence against blasphemers were not contained to the countries listed above. Three men were convicted under Myanmar’s blasphemy law and sentenced to 2 and a half years in prison in March for insulting Buddhism by publishing a flyer showing Buddha wearing headphones to promote their bar. Amos Yee Pang Sang, a 16-year-old blogger in Singapore was sentenced to a 4 week prison term in July for insulting Christianity, and he “admitted to his guilt and promised not to reoffend, as he realised his actions were against the law and could disrupt social harmony” after he was required to go to counseling. An executive at a Four Seasons hotel in Indonesia is facing blasphemy charges and up to five years in prison because she allowed a gay couple to hold a Hindu ceremony at her hotel. And an Indonesian footwear company is being sued solely because the word “Allah” is printed on sandals they produced, which they’ve promised to destroy. In October, a five year prison sentence against TV personality Islam El-Behery for “contempt of religion” was upheld by Egypt. In August, two men in India murdered professor M.M. Kalburgi, who was likely targeted for his criticism of idol worship. A few weeks ago, Indian director Pan Nalin received death threats because of the blasphemous content in his newest film, and took calls warning him: “We will make sure you go Charlie Hebdo way.” Last month Kuwaiti blogger and teacher Sara Al-Drees was arrested for “Insulting the Prophet” on Twitter, and could face up to ten years in prison doing hard labor. Events of a blasphemous nature faced threats and violence as well—in February three people were wounded and one man was killed when a gunman[5] targeted Lars Vilks’ event in Denmark and a Muhammad cartoon contest with keynote speaker Geert Wilders in Texas was unsuccessfully attacked in May by two gunmen (one of the gunmen had claimed allegiance to ISIS.)

More Blasphemy Laws, More Problems

In addition to the many acts of violence committed against blasphemers this year, a few countries introduced or passed bills that will likely perpetuate that violence, or at least frighten dissidents into silence. Kuwait is considering an amendment to its 1959 Alien Residence Law, which would ban “any person convicted of contempt of religions or penalised for derision of Islam, Islamic beliefs or the Prophet’s (PBUH) companions or family members” in another country from entering Kuwait. In July, the United Arab Emirates President His Highness Shaikh Khalifa Bin Zayed Al Nahyan[6] decreed a law that could easily be used to target blasphemous speech. Some of the “anti-hate” law’s provisions:

  1. Criminalises any acts that stoke religious hatred
  2. Criminalises any act that insults religion through any form of expression, be it speech or the written word, books, pamphlets or online
  3. Punishes anyone for terming other religious groups or individuals as infidels, or unbelievers
  4. Provides a sound foundation for the environment of tolerance, broad-mindedness and acceptance in the UAE
  5. Aims to safeguard people regardless of their origin, beliefs or race, against acts that promote religious hate and intolerance
  6. Includes jail terms of six months to more than 10 years for those who break the law

Not to be outdone, Bahrain began drafting a bill in August that would ban “any hate or sectarian discourse that undermines national unity, differentiates between individuals or groups on the bases of religion, creed or sect and triggers conflict between individuals or groups.” New Zealand’s new Harmful Digital Communications Act says digital communications "should not denigrate an individual by reason of his or her colour, race, ethnic or national origins, religion, gender, sexual orientation, or disability.” Humanist groups have raised concerns about the law’s ability to target blasphemous speech, but New Zealand’s Justice Minister Amy Adams claimed "a person would have to do much more than simply post blasphemy to fall foul of the criminal offence in the Harmful Digital Communications Act." There’s plenty of evidence from this year alone that many people consider blasphemous statements to be “denigrations” of their religion, so Adams’ comments are poorly thought out at best[7].

Poland and Denmark both took incredibly disappointing stances this year by reaffirming the legality of their blasphemy laws. The International Humanist and Ethical Union reports that Denmark’s Ministry of Foreign Affairs Vanessa Vega Saenz spoke at a UN Human Rights Council meeting in March and acknowledged that Denmark’s blasphemy law is rarely used but claimed it’s “‘legally important’ in that it gives the state the possibility to stop people burning bibles and Korans, and to punish those who do[8].” In October, a Constitutional Tribunal upheld Poland's blasphemy law that states “whoever offends religious feelings of other people by publicly insulting an object of religious cult or a place for public holding of religious ceremonies, is subject to a fine, restriction of liberty or loss of liberty for up to 2 years.” In the ruling, one of the justices said “religious criticism is acceptable, only if it’s devoid of abusive, insulting or degrading opinions” and the tribunal asserted the importance of “punish[ing] such offenses, because the public debate about religion must be conducted in a cultured and civilized manner.”

Some Rare Good News

There were a few brights spots this year, though. In March, Jordan withdrew its proposed Inter-Parliamentary Union resolution that sought to restrict speech that failed to show “respect for religions and religious symbols.” In response to the Charlie Hebdo attacks, two Norway politicians pushed through a proposal in May that finally achieved the long-planned end of the country’s blasphemy law, arguing that its existence “underpins a perception that religious expressions and symbols are entitled to a special protection.” Two months later, Malta announced that it was in the process of weakening its blasphemy laws[9]. Iceland’s parliament, also motivated by Charlie Hebdo, repealed its 75 year old provision against blasphemy in July. And in October, Pakistan’s Supreme Court decided that suggesting revisions to Pakistan’s blasphemy law is not, in fact, a violation of the blasphemy law. Alarming as it is that this needed to be said, it’s still progress worth noting. It’s a minor, but important, step forward for free speech advocates demanding reform.

That Norway’s and Iceland’s blasphemy laws (like Denmark’s) were rarely, if ever, used is irrelevant—laws that could be used to punish expression often do a very good job of chilling the speech they’re intended to suppress even if they’re never exercised. And sometimes, as evidenced by the tragedies in Bangladesh and Afghanistan, blasphemy laws do worse than chill speech—their existence reinforces the idea that blasphemous speech is something that should be physically punished. It shouldn’t be, and we should be genuinely concerned about the prevalence of the desire, from governments and mobs, to inflict pain on people whose beliefs deviate from what their neighbors or leaders deem acceptable.

[1] This list probably does not contain every newsmaking blasphemy incident of 2015, but it illustrates the hostility with which religious dissent was met in the past year. I used essentially the same methodology as Ken did when he blogged about blasphemy in 2012, but I grouped the incidents differently (as you can see).

[2] These are just a few examples of ISIS’ brutality. You can easily find many more if you’re so inclined.

[3] But who among us wouldn’t threaten to sue someone willing to criticize us for doing very rational things like beheading people for not imaginary crimes like sorcery? Who are we to judge?

[4] And the only woman.

[5] His motives were not known but Vilks is a well known target for his cartoon depictions of Muhammad.

[6] A rule to live by: anyone that demands to be called “his highness” can probably be expected to “decree” terrible laws.

[7] For more poorly thought out comments, check out Keith Vaz’s “lol idk maybe” ideas on blasphemy laws in the UK.

[8] This is a fairly blunt way of saying that they like being able to chill speech.

[9] But the Justice and Culture Minister said that “the new amendments will also aim to safeguard social and racial minorities, since the law will not allow for the vilification of any minority work,” so this is still worth watching.




Who Will Be Popehat's Censorious Asshat of 2015?

It's time for Popehat's annual-when-I-get-around-to-it Censorious Asshat of the Year contest!

As always, only asshats we have written about are eligible. Candidates have been narrowed down through a process involving caprice, short attention spans, and alcohol.

It's a strong field this year, ladies and gentlemen. Here are the candidates:

The New York Times: An institution that won't print satirical cartoons at the heart of worldwide murders and death threats because they might hurt feelings. In aggravation: A complete abdication of support for free speech, badly supported by a appeal to feels that is not consistently applied across potentially offended groups. In mitigation: This is only self-censorship, which isn't really censorship at all, properly. The Times has a right to be craven and unserious if it wants.

Ohio Judge Tim Grendell: An overpromoted, thin-skinned thug who abuses the contempt power to harass critics and offers bad excuses for it. In aggravation: Proudly and wantonly abusing judicial office out of personal spite. In mitigation: Deserves the obscurity that his mediocrity had previously earned him.

Dr. Mario J. Saad: Saad was sad about the part of peer review where someone questions his work, and unsuccessfully sued to suppress scientific dialogue on breathtakingly frivolous grounds. In aggravation: Actually interfered with the peer review process that helps promote human scientific knowledge. In mitigation: As a doctor, probably completely unfamiliar with anyone telling him no.

Michigan Judge Lisa Gorcyca: This evil, vicious brute reviled and threatened children who didn't want to meet with their estranged father. In aggravation: “You want to have your birthdays in Children’s Village? Do you like going to the bathroom in front of people?" In mitigation: Really more of a regulation of conduct than speech.

The U.S. Attorney's Office for the Southern District of New York, U.S. Attorney Preet Bharara, Assistant U.S. Attorney Niketh Velamoor: Issued a grand jury subpoena to Reason Magazine to determine the identity of commenters making patently hyperbolic political comments on the pretext that they were threats, and sought and obtained a gag order preventing Reason Magazine from reporting on the fact that it was being subpoenaed and gagged on no rational grounds whatsoever. In aggravation: The part where they silenced a magazine that writes about government abuse of power from talking about their government abuse of power. Seriously. In mitigation: Total failure of substantive judicial oversight was akin to bad parenting. It's sort of like affluenza, except with unchecked prosecutorial power instead of weath and shrugging judges instead of awful parents.

Donald Trump: Prone to issuing frivolous defamation threats and filing bogus defamation suits to soothe his chafe over being criticized. In aggravation: Career abuser of the judicial system. In mitigation: Surrounded by sycophants who encourage his misunderstanding of free speech.

City of Inglewood, California: Filed an abusive and unsuccessful copyright infringement suit to attack someone who put city council proceedings on YouTube. In aggravation: In addition to harassing a critic, wasted a vast amount of taxpayer dollars in a predominantly impoverished city. In mitigation: Low expectations of local government has cultivated lawless atmosphere.

Eric Posner: Long-time dedicated foe of the First Amendment continued his unprincipled assault on it. In aggravation: America's most prominent academic champion of censorship. In mitigation: Has never actually persuaded anyone to censor anything.

Turkish President Recep Tayyip Erdoğan: Tirelessly employs the mechanism of his brutal government to harass and oppress even the most mild and lighthearted of critics. In aggravation: Actual tyrant who actually has people imprisoned for speech. In mitigation: Check your Western privilege. He's not from a culture with a tradition of freedom of expression.

Mecosta County District Court Judge Peter Jaklevic: Ordered clearly unconstitutional arrest of jury nullification advocate in a fit of pique. In aggravation: Abuse of judicial office. In mitigation: As a recent former prosecutor, never taught to view rule of law as a set of mutually agreed-upon limitations on power, as opposed to an obstacle.

Goddamn college students on my lawn: Doing their best to push the idea that universities should punish and silence people who say things they don't like, think that hurty words are "silencing" but closing student newspapers or forcing students into reeducation classes isn't. In aggravation: Insufferably fanatical; fanatically insufferable. In mitigation: Never taught any better.

Chuck C. Johnson: Bumbling his way through a frivolous lawsuit against Gawker, and others, for making fun of him. In aggravation: Incessantly wraps himself in the First Amendment while simultaneously making frivolous defamation threats. In mitigation: Gawker is awful. Also, he's pretty good comic relief.

Who is Popehat's Censorious Asshat of 2015?

In These Parts, Claiming that a Republican Supports Harry Reid is Defamation

As readers may know, I have a bit of a soft spot (or a hard on, depending on how you look at it) for the Nevada Anti-SLAPP statute. See The Silver State Sets the Gold Standard. We don't get many cases interpreting it out here in Nevada, so we generally interpret it the way that the California courts would look at theirs.

So when we depart from California, even in an unpublished opinion, it is worth looking at. Recently, we had a pretty spooky case come down, Schmidt v. Kieckhefer.

In that case, in an unpublished (and thank god, un-citeable) opinion, the Nevada Supreme Court upheld the denial of an Anti-SLAPP motion. It isn't that they upheld it that freaks me out, but rather how, along with the underlying facts and procedural history.

In the case, Gary Schmidt challenged incumbent Ben Kieckhefer in the 2014 Republican primary for a Nevada state senate seat. Schmidt ran a campaign ad claiming that Kieckhefer supported Harry Reid for senate in 2010. Kieckhefer sued Schmidt, and even managed to swing a preliminary injunction suppressing the ads, claiming an "irreparable injury to his career and reputation.”




That ought to bug you a little bit, but this wasn't just any prior restraint. This was a prior restraint on political speech — on a campaign ad! I am unaware of any cases in which this has happened in the past hundred years.

What was so defamatory about it that the trial court judge set aside, oh, I dunno… a century's worth of precedent? Well, you can't claim a Republican likes Harry Reid. Not here. Them's fightin' words. Its like yelling "fire" in a crowded theater!

The allegedly defamatory ad was based on an Oct. 31, 2010 Las Vegas Sun article, Reid endorsement may put Raggio on the outs in GOP Spoiler alert, that article talks about how State Senator Bill Raggio backed Harry Reid. Why is that news? Because Raggio was a big Republican leader since the 1970s.

In pertinent part, it reads:

Raggio, first elected in 1972, and who turned 84 on Saturday, said he wasn’t concerned with questions about who will lead the caucus. He said he was instead focused on getting control of the state Senate. He was, of course, curious about how the votes broke down.

Some Republicans who talked to the Las Vegas Sun said they support the longtime leader.

Besides Raggio, the group includes Assemblyman Joe Hardy, R-Boulder City, who’s running for state Senate; Ben Kieckhefer, a former spokesman for Gov. Jim Gibbons running for a seat in Reno; and Sen. Dean Rhoads, R-Tuscarora, who has also publicly backed Reid and is not up for re-election.

Schmidt claimed that the article could be fairly read to imply that Kieckhefer supported Reid.

Even I had to read the article twice to figure out who supports whom. The article is not a model of clarity. Nevertheless, if you read it twice, or at most three times, you figure out that Kieckhefer supported Raggio. That much is clear enough.

What is also clear is that Raggio supported Reid.

Could one reasonably then infer that Kieckhefer supported Reid?

Schmidt thought so, and filed an Anti-SLAPP motion, under the 2013 revision to the Nevada Anti-SLAPP statute. The motion was denied, since the lower court found that although the statement was made in good faith, Kieckhefer demonstrated by clear and convincing evidence that he would have a likelihood success on the merits of his claim. Kieckhefer would have had to show actual malice, that is a knowing falsity or a reckless disregard for the truth. That is a pretty tall order. But, according to the order, it seems that the only evidence he presented to support his statement was the Las Vegas Sun article.

I could discuss the actual malice standard, and how I couldn't see a court outside Florida coming to this conclusion — that it gets past actual malice — but a wrong decision on actual malice wouldn't necessarily warrant a blog post.

Here is where things get really weird. The court then reviewed the decision on an abuse of discretion standard. The Court is supposed to review the denial or grant of an Anti-SLAPP motion on a de novo review, since it is treated as a motion for summary judgment. But, they just invented this new elevated standard for half of the statute, the half that requires the court to determine whether or not the statement was a good faith statement on a matter of public concern.

That is supposed to be a super-duper low standard.

Nevertheless, that strange wrinkle did not change the outcome — even though the court did find that the lower court abused its discretion.

We conclude that the district court correctly denied Schmidt's motion to dismiss, but abused its discretion when it erroneously found that Schmidt made his statements in good faith. There is no rational way to read the Las Vegas Sun article without concluding that Kieckhefer supported Raggio for majority leader. Because one cannot rationally infer from this article that Kieckhefer supported Reid and there has been absolutely no other evidence presented that supports Schmidt's statement, we conclude that he did not act in good faith when he claimed that Kieckhefer supported Reid

No rational way?


I will agree that it is logically flawed to say:

1. Raggio supports Reid.
2. Kieckhefer supports Raggio.
3. Therefore, Kieckhefer supports Reid.

Flawed? Yes. But "no rational way?"

I have four higher education degrees, including BA and an MA in journalism, I got a reasonably acceptable score on the LSAT. I've got some reading comprehension cred. Meanwhile, I had to read the article twice to figure out what it was saying. I think it is at least rational to infer that Kieckhefer supports Reid — as long as we realize that "rational" can still be "logically flawed" and "false."

But the Nevada Supreme Court said that it was an abuse of discretion for the lower court to find that Schmidt could have even possibly made the campaign ad in good faith. This means that the currently very low bar for the first prong of the Anti-SLAPP statute could move higher, if this logic ever makes its way into a published decision. The court is supposed to look at the first prong as a tiny hop, and save "no rational way" for the second prong of the statute — whether the Plaintiff has a likelihood of success on the merits of his claim.

Its not that Schmidt should definitely not have lost this case. But, I'm very glad that this decision is unpublished and not citable as authority. Nevada has the nation's best Anti-SLAPP law, and this is good for everyone (even if you don't live in Nevada). Had this been a citable decision, the law would have had some health problems.

I truly hope that this was just politics playing out in an ugly way, and not the Nevada Supreme Court deciding to blaze a new and awful way of looking at political speech.

Gag Clause Act Passes Senate

Another satisfied Kleer Gear Customer

Another satisfied Kleer Gear Customer

The U.S. Senate recently passed their version of the “Consumer Review Freedom Act” (CRFA), which would bar companies from trying to enforce “gag clauses” in contracts with consumers. It’s a good law that is long overdue, since clauses like these have been showing up much more often lately and serving as the basis of breach of contract claims bundled with frivolous defamation lawsuits.

The impetus for this law is a Utah federal case, Palmer v., Case No. 1:13-cv-00175 (D. Utah July 1, 2014). The plaintiff there bought one of Kleargear’s products and then complained about it on the Internet. Kleargear then added a “non-disparagement” clause to its terms of sale that included a $3,500 for making negative comments about the company. When Kleargear referred Palmer to collections based on this provision, he sued Kleargear for violation of the federal Fair Credit Reporting Act and got a default judgment. Even though the court there didn’t make any determination as to the validity of the non-disparagement clause, it was a wakeup call to how easily they could be abused.

A more glaring example of this conduct came to light in Roca Labs, Inc. v. Consumer Opinion Corp., where a diet “nutraceutical” manufacturer in Florida sued a consumer review website for, among other things, allegedly inducing customers to breach their non-disparagement clauses with Roca Labs by allowing people to post negative reviews on the website . The court there didn’t decide on whether the non-disparagement clause was enforceable, however, finding instead that the website was immune under 47 U.S.C. § 230. See Roca Labs, Inc. v. Consumer Op. Corp., 2015 U.S. Dist. LEXIS 143107 (M.D. Fla. Oct. 21, 2015). (Disclosure, I was one of the attorneys on that case) Ken wrote a full analysis of the litigation here.

Assuming that Congress can actually get the CFRA passed, it’s worth taking a look at its provisions to see if it would prevent a situation like Kleargear from happening again. You can find the text of the bill here.

The statute protects “covered communications,” which are any “review, performance assessment of, or other similar analysis of . . . the goods, services or conduct of a person.” This is broad language that would certainly cover consumer reviews and reviews of professionals, but may even extend beyond that. For example, with some creative argument this could possibly apply to Charlie Sheen’s alleged sexual NDA. (WINNING!!!)

Next, the law applies to “form contracts,” which are one-sided contracts of adhesion written by a company that the consumer has no real chance to negotiate over: a “take it or leave it” situation. Most “clickwrap” terms of use agreements that everyone skips through would likely fall under this category. Notable exceptions to this definition are employment and independent contractor agreements, meaning you still couldn’t badmouth your employer with impunity.

The CRFA prohibits three things. First, a form contract can’t prevent a party to the contract from making a covered communication. Second, the form contract can’t impose a fee or penalty against a party for making a covered communications. Third, a form contract can’t require a party to sign over intellectual property rights in reviews that they author.

This means that the CFRA unambiguously outlaws non-disparagement clauses in consumer contracts, specifying that they are void from the outset. It also forbids companies from abusing copyright law by claiming ownership of reviews and then hitting disgruntled customers with DMCA notices. But it does contain exceptions for things like private or confidential information or trade secrets, and makes clear that the law doesn’t prevent a company from suing someone for defamation over a review.

The law does not create a private cause of action, meaning you couldn’t sue a company directly for violation of the law if they tried collecting on an unlawful “penalty” like in Kleargear. Instead, the law provides that any attempt to enforce an unlawful provision is a violation of the FTC act, and gives both the FTC and state officials the ability to bring an action against the company. This would look something like the pending lawsuit between the FTC and Roca Labs in FTC v. Roca Labs, Inc., Case No. 8:15-cv-02231 (M.D. Fla. 2015). Thus, while a customer could win a motion to dismiss simply by pointing to this law, actually stopping a company from trying to enforce gag clauses would usually be out of an individual consumer’s control.

On the upside, if you live in a state with a broad unfair and deceptive trade practices act, you could use that against a censorious asshat company. Although the FTC Act has no private right of action, state unfair and deceptive practices laws frequently import decisions under the FTC Act. Therefore, it could follow that any company that tries to enforce a gag clause (should this law pass) would find itself facing state unfair and deceptive trade practices claims.