Challenged About the First Amendment, Eric Posner Lies About It

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Ahem.

Circuit Split Over Cybersquatting Act – 11th Circuit Rejects GoPets in Jysk v. Roy

The 11th Circuit is having none of the GoPets decision

The 11th Circuit is having none of the GoPets decision

The Anticybersquatting Consumer Protection Act (ACPA), 15 U.S.C. § 1125(d), provides: “A person shall be liable . . . by the owner of a mark . . . if . . . that person . . . has a bad faith intent to profit from that mark . . .; and . . . registers, traffics in, or uses a domain name that . . . is identical or confusingly similar to that mark.”

Back in 2011, the 9th Circuit came up with a pretty bizarre decision, GoPets Ltd.v. Hise, 657 F.3d 1024 (9th Cir. 2011). In that case, the 9th Circuit held that a "re-registration" is not a "registration" under the ACPA. Therefore, if you register a domain name but just squat on it, hoping that one day someone will start using a trademark that matches that name, you registered it in "good faith." I have some issues with that, but it is understandable how that does not meet the "bad faith registration" definition, although it can still be "bad faith use." But, the GoPets decision means that once a domain name is registered in good faith, nothing can ever change that registration to "bad faith," no matter what. So, lets say that you registered "Facebook.net" back in 1999. Fair enough, maybe you get to keep it even once Facebook becomes a global brand. But, you can't then sell it to someone, with a price that reflects the value brought to the domain because of Zuckerberg and Co.'s efforts.

I found that decision to be pretty screwed up, but at the same time, it was based on some reasonable theory: The theory being that domain names are "property," and thus you can transfer all "property rights" to another person — including the "property right" you had in your good faith registration.

The 11th Circuit just said "hooey" to that, in a really nice decision. (Its not just that I agree with the holding, but the Opinion is one of those opinions that really lays out the law clearly and applies it to the facts in a way that you never scratch your head and say "what awful clerk wrote this dreck?").

In Jysk v. Roy, the 11th Circuit declined to do what the 9th likes to do — and that is insert words into statutes that congress didn't put in there. For example, in Perfect 10, Inc. v. CC Bill, LLC, 488 F.3d 1102 (9th Cir. 2007) they held that 47 U.S.C. § 230's exemptions for intellectual property claims only meant "federal" intellectual property claims. The First Circuit subsequently noted in dicta that Section 230 contains no such limitation. See Universal Comm’n Sys., Inc. v. Lycos, Inc., 478 F.3d 413, 418 (1st Cir. 2007). See also, Gimme section 230 shelter – online dating pranks and CDA Immunity (link).

Similarly, the 9th Circuit seems to have re-written the ACPA in GoPets to exclude any registration except initial registration. The 11th Circuit was having none of that.

The Act does not define the term register. The Act nowhere contains the qualifications of initial or creation when it refers to the act of registering. It refers simply to a registration, and a re-registration is, by definition, a registration. To “re-register” is “[t]o register again.”

Including re-registrations under the registration hook comports with the purpose of Congress in enacting the ACPA—to prevent cybersquatting. See S. Grouts & Mortars, Inc., 575 F.3d at 1246–47 (“Registering a famous trademark as a domain name and then offering it for sale to the trademark owner is exactly the wrong Congress intended to remedy when it passed the ACPA.” (quotation marks omitted) (quoting Ford Motor Co. v. Catalanotte, 342 F.3d 543, 549 (6th Cir.2003))). It would be nonsensical to exempt the bad-faith re-registration of a domain name simply because the bad-faith behavior occurred during a noninitial registration, thereby allowing the exact behavior that Congress sought to prevent.

We accordingly will not read additional words into the statute such as initial or creation. The plain meaning of register includes a re-registration. The plain meaning of register includes a re-registration. The District Court correctly held that a re-registration falls within the purview of the ACPA. (Op at 16-17)

This could, perhaps, set up a petition for certiorari, given the Circuit disagreement. That would be exciting, to those of us who are lame enough to find cybersquatting cases exciting. I guess that would include me and Crystal Cox, at least.

For what it's worth, the 3d Circuit had a prior decision that also agreed that all registrations are registrations. See Schmidheiny v. Weber, 319 F.3d 581 (3d Cir. 2003). That case said “the language of the statute does not limit the word ‘registration’ to the narrow concept of ‘creation registration’” and that “[t]he words ‘initial’ and ‘creation’ appear nowhere in [the statute].” Id. at 582–83.

[update] So people will care about this post "THERE SHOULD BE GUNS IN MATERNITY WARDS WHERE YOU ALSO CAN SMOKE WHILE TALKING ABOUT ETHICS IN GAMING JOURNALISM AND IF YOU DON'T AGREE, YOU'RE FRENCH"

Eric Posner: The First Amendment's Nemesis

Every hero needs a villain.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Do you have time for a question?

No.

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

I know what you're doing.

What?

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

You're not? Really?

DAMMIT

Set me straight. What did the Eleventh Circuit do?

Okay. Fine.

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

Why are you throwing shade at the Eleventh Circuit?

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

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

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

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

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

So how did this law limit doctors?

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

I did.

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

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

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

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

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

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

Why would the Eleventh Circuit go easy on Florida?

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

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

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

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

Do you agree with the case?

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

What happens now?

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

The First Amendment is not a free pass to harass

Screen Shot 2015-12-15 at 8.11.29 AMA charter school in Washington DC is suing abortion protesters. (source) Why? Because Planned Parenthood is opening next to the school, so the abortion protesters have decided to focus their protests on the children, parents, and employees of the school.

Nobody ever said that abortion protesters were required to use logic.

Although one might say it is logical. The protesters hope that the parents at the school will use their political clout to demand that Planned Parenthood move, so their kids can get back to getting an education.

The school is suing for intentional infliction of emotional distress and for relief from a private nuisance. (complaint) Further, they are seeking an injunction to limit the anti-abortion folks' right to protest.

The intentional infliction of emotional distress claim seems doomed. See Snyder v. Phelps, 562 U.S. 443 (2011). No matter how outrageous the speech is, including showing 3 year olds pictures of aborted fetuses, we can't call that IIED. On the nuisance front, the claims might make it. But, what about the injunction? The school says that the protests go beyond merely getting the anti-abortion word out, and the court should limit the protests.

That pings my free speech Distant Early Warning Line. I have a rather expansive view of what the First Amendment protects. But, even I do not say it is limitless. Often, I get questions that try and seek out where the limits are, and my usual response to them is "that's fucking stupid." So.. that ought to indicate how far out the boundaries actually are, in my eyes.

With that, I present to you a case out of Florida that gives us some instruction in a case like this one. Thoma v. O'Neal, ___ So.3d ___ (Fla. 4th DCA 2015). In this case, Ms. O'Neal worked at an abortion clinic, and Thoma was a protestor. Thoma followed O'Neal to her car, followed her to her community, and then plastered her community with flyers exhorting her neighbors to ask her "to please stop assisting the abortionist with the killing of black babies.”

Ms. O'Neal sought an injunction to stop Thoma from harassing her. The trial court granted it:

the trial court explained on the record that a course of conduct constituting harassment as stalking was established by two instances: (1) the incident where the Victim saw Thoma following her in his car after leaving work, and (2) the flyer distributed by Thoma, which the trial court found “crosses the line” protected by the First Amendment. After determining the two incidents established a course of conduct showing harassment sufficient to constitute stalking, the trial court granted the injunction (Op. at 2)

Thoma appealed, and O'Neal did not file a brief in opposition. Nevertheless, the appellate court upheld the injunction. Despite the abhorrence that the Constitution and I share when it comes to injunctions against speech, neither of us are offended by this one.

One thing that could make it inoffensive would be if there happened to be a "true threat." The court found that none existed here. However, the court still upheld the injunction on the grounds that a speaker's First Amendment rights end at the door to your home. The 4th DCA relied upon Operation Rescue v. Women’s Health Center, Inc., 626 So. 2d 664 (Fla. 1993), which itself relied upon Frisby v. Schultz, 487 U.S. 474 (1988)

Although in many locations, we expect individuals simply to avoid speech they do not want to hear, the home is different. “That we are often captives outside the sanctuary of the home and subject to objectionable speech . . . does not mean we must be captives everywhere.” Instead, a special benefit of the privacy all citizens enjoy within their own walls, which the State may legislate to protect, is an ability to avoid intrusions. Thus, we have repeatedly held that individuals are not required to welcome unwanted speech into their own homes and that the government may protect this freedom. (Operation Rescue at 672, quoting Frisby, 487 U.S. at 484–85

The Appeals court also relied upon Rowan v. United States Post Office Department, 397 U.S. 728, 738 (1970). That case held “the right of every person ‘to be let alone’ must be placed in the scales with the right of others to communicate.” 397 U.S. at 737. ("no one has a right to press even ‘good’ ideas on an unwilling recipient. That we are often ‘captives’ outside the sanctuary of the home and subject to objectionable speech and other sound does not mean we must be captives everywhere. The asserted right of a mailer, we repeat, stops at the outer boundary of every person’s domain")

Because Thoma generated, mailed to the Victim, and distributed to her neighbors the flyer, which not only conveys a message he knew the Victim did not want to hear (and is a racial slur), but also clearly identifies the Victim by name and face, gives the reader her home address, and then invites the reader to dissuade the Victim from assisting in abortions, we are satisfied the flyer seeks to invade the privacy of the Victim’s home, and the trial court properly determined the flyer was generated, mailed, and distributed with the intent to harass the Victim. Thoma’s behavior with reference to the flyer and his attempt to push his message on to the Victim at her home is not protected by the First Amendment. Thus, we uphold the trial court’s finding that the Victim proved a course of conduct constituting stalking and was entitled to an injunction.

The court did find that the lower court's injunction was over broad, but since it had expired, it was moot.

While this is a Florida appellate case, it ought to be instructive (especially given its reliance on U.S. Supreme Court precedent) as to where the line might lie. Mr. Thoma might have had every right to stand on the sidewalk near O'Neal's place of work and hold up signs. But, when he decided to bring the campaign to her doorstep, that went over the line to harassment, and was properly the subject of an injunction.

So what about the school?

This is not someone's home, so the Thoma court's analysis would not stick to the entire pane of the glass here. However, the logic is the same. Communicating a message is one thing. But, when you take it over the line to actually impede unrelated parties from getting into a school? That just might cross the line. I think that the DC Court would be within its rights to issue a limited injunction, prohibiting the protesters only from impeding access to the school. Perhaps, the injunction could even limit protesters focusing on the school when the kids are coming, going, and outside at recess.

I'm not saying it would definitely be right if the school were actually the subject of the protests. That would be another story.

But, in this case, one has nothing to do with the other. The protesters are neither against the school, nor trying to change anything at the school, nor trying to influence the school — all they're trying to do is harass the kids and their families, so that the parents at the school will then unwillingly join the cause of trying to stop the Planned Parenthood facility from opening.

The First Amendment does not abide extortion. The First Amendment does not give you a right to harass. It most certainly does not give you a right to harass other people so that you can conscript them into supporting your message, just so you'll just leave them the fuck alone. That's not the marketplace of ideas in action. "Winning" on the basis of having the stronger idea is one thing, "winning" by harassing people into backing you up is something the First Amendment need not abide.

Good First Amendment Case – Biro v. Conde Nast

Well done, Judge Lohier.  Brennan smiles upon you.

Well done, Judge Lohier. Brennan smiles upon you.

Peter Biro was the subject of a 2010 article in The New Yorker. Biro sued the publisher and other defendants who allegedly republished statements from the original article. Since Biro was deemed to be a limited purpose public figure, the court dismissed the claims against him because he did not allege sufficient facts to plausibly support an eventual finding of actual malice. The Second Circuit affirmed the dismissal in Biro v. Conde Nast.

The facts of the case really don't matter for the purposes of this post. For all I know, Mr. Biro got a really raw deal, and the defendants really did defame him. So, for the sake of this article (and the comments, please) lets give him that benefit of the doubt. Nevertheless, he's done us all a good service by causing the 2d Circuit to issue this opinion – because we need opinions like this.

Because there are censorious asshats, and they find attorneys.

Often defamation complaints are really just complaints of aggravated butthurt. Some asshat with money decides to sue over some perceived slight, and that asshat with money manages to find a slimy lawyer willing to take some of that money.

When it comes to defamation, it is not a simple matter of (False Statement) + (Angry Plaintiff) = Defamation. When a plaintiff alleging defamation is a public figure, he or she must show that the allegedly false statements were made with actual malice – that is, knowing falsity, or a reckless disregard for the truth. N.Y. Times Co. v. Sullivan, 376 U.S. 254, 279-80 (1964); Town of Massena v. Healthcare Underwriters Mut. Ins. Co., 779 N.E.2d 167, 171 (N.Y. 2002). Such public figures can include limited-purpose public figures who “have thrust themselves into the forefront of particular public controversies in order to influence the resolution of the issues involved.” Gertz v. Robert Welch, Inc., 418 U.S. 323, 345 (1974). It is not necessary for a plaintiff to be a household name to be a public figure, either; he or she may be a limited-purpose public figure within a certain community for the same public figure standards to apply. Huggins v. Moore, 726 N.E.2d 456, 460 (N.Y. 1999). It is not even necessary for a public figure to seek the limelight to be held to this standard – it is possible to be a public figure by mere circumstance, rather than concerted effort. See Gertz, 418 U.S. at 345 (“it may be possible for someone to become a public figure through no purposeful action of his own”).

What's so great about this Biro case? It is the first case out of the 2d Circuit to confirm the new standard for a defamation case to get past a motion to dismiss. Ever since the Iqbal/Twombly standard came into being, complaints have to at least plead plausible facts on their face. Naked assertions or conclusory allegations are not enough. Therefore, a public figure can't just say "this guy said something about me, it is false, and he said the falsehood with actual malice." It requires more. It requires at least an allegation, anchored to provable facts, that the defendant made the statement with knowing falsity or a reckless disregard for the truth.

malice must be alleged plausibly in accordance with Rule 8. Our sister circuits that have considered the issue agree. See, e.g., Pippen v. NBCUniversal Media, LLC, 734 F.3d 610, 614 (7th Cir. 2013) (“States of mind may be pleaded generally, but a plaintiff still must point to details sufficient to render a claim plausible.”); Mayfield v. Nat’l Ass’n for Stock Car Auto Racing, Inc., 674 F.3d 369, 377 (4th Cir. 2012) (“[M]alice must still be alleged in accordance with Rule 8—a ‘plausible’ claim for relief must be articulated.”); Schatz v. Republican State Leadership Comm., 669 F.3d 50,58 (1st Cir. 2012) (“[T]o make out a plausible malice claim, a plaintiff must still lay out enough facts from which malice might reasonably be inferred . . .”).

This doesn't stack the deck insurmountably high against the legitimate plaintiff either.

For example, a plaintiff may allege that “a story [was] fabricated by the defendant” if the defendant provides no source for the allegedly defamatory statements or if the purported source denies giving the information. St. Amant v. Thompson, 390 U.S. 727, 732 (1968). Or the plaintiff may point to the fact that the allegedly defamatory statements were “based wholly on an unverified anonymous telephone call” or were published despite “obvious [specified] reasons to doubt the veracity of the informant or the accuracy of his reports” or despite the “inherently improbable” nature of the statements themselves. Id.

And Mr. Biro? I don't know, maybe he was really defamed. But, he didn't allege any facts that, if proven, would have shown that the defendant knew that the facts were false, or that the defendant royally screwed up in publishing them. Maybe Biro was a dick who shouldn't have sued, or maybe he just had a lawyer who didn't know how to write a defamation complaint. I take no position on that, because I don't care. What I do care about is that Mr. Biro has now unwittingly made us all a little more free — especially if you live in the 2d Circuit.

[UPDATE] – Via Twitter, someone asked a good question: "How could one overcome the malice requirement if a reporter shields their sources, or just claims an "inside source"?" I think this warrants an update:

1. Often, the actual malice requirement won't matter. For example, when a case is brought over words that are not actually defamatory. But, a reporter can never simply say "I had a good source, but it is confidential, therefore no actual malice." The reporter will need to decide between protecting his source and protecting his own liability.

But, that doesn't always have to be a rock-and-a-hard-place decision.

A recent 1st Circuit case gives us some insight into how you can deal with that. See Pan Am Sys. v. Atl. Northeast Rails & Ports, Inc., 2015 U.S. App. LEXIS 17687, *4 (1st Cir. 2015)

Worried that a fight over the fault element might require them to divulge confidential sources and threaten their First-Amendment interests, defendants proposed — and the district court accepted — having the parties do discovery on all issues except fault, followed by summary judgment on those issues, followed by discovery on fault if needed. See Bruno & Stillman, Inc. v. Globe Newspaper Co., 633 F.2d 583, 597-98 (1st Cir. 1980) (discussing how bifurcated discovery like this can protect a defendant's journalistic sources).

Although one won't always have such an enlightened judge, this is a reasonable means to protect sources — figure out everything that does not require revealing sources. Then, if that's the last question to answer in order to resolve the case, you make the decision then.

She's/He's Got The Jack, Do You Got a Case?

If I am ever general counsel for Taco Corp, these will be the kinds of things I guess I will have to deal with.

If I am ever general counsel for Taco Corp, these will be the kinds of things I guess I will have to deal with.

A guy went on Tinder, picked up a woman, and got herpes from her. Yeah? Why is that news? Well, the guy sued her for giving her the as-of-today incurable disease. (source) The woman knew that she had herpes, but she lied to the guy about her condition. She claims that she only thought it would be contagious during an outbreak. He is now suing her for giving him the virus.

Does he have a case? Probably.

People do bad things to one another with their genitalia. In one case I reviewed, a wife accused a husband of intentionally infecting her with an STD. Adam M. v. Christina B., 2013 Alas. LEXIS 73 (Alaska June 5, 2013). This guy went around and tried to give HIV to thousands of people — on purpose. But, lets set aside the extreme example of the Lord Jeffrey Amherst school of sexually transmitted disease transmission. That's easy. You give someone a disease, with the specific intent of giving them the disease, you're probably going to jail, and you're definitely going to be subject to tort liability.

If I were to ever put this issue on a torts exam, (and if I ever teach torts, I probably would) I wouldn't use the Tinder story. I'd probably use this AC/DC story: The AC/DC song, "The Jack" is a very thinly veiled story about a venereal disease carrier. Bon Scott had Gonorrhea, and he knew it, but he had unprotected sex with a woman just the same. Well then, she had sex with Phil Rudd (AC/DC's drummer), and she unknowingly passed it along to him. But, given the rapid succession of partners, she thought that she caught it from Rudd, so she sent him her $35 doctor's visit bill. At the next show, Scott then brought her on stage and told her that it was he who actually owed her the $35. (source) The story doesn't continue to tell us if Phil Rudd then got it from the unnamed woman (lets call her "Jackeline"), but for the sake of lawsplaining, lets presume he did.

Who owes whom?

Well, Bon Scott is right, he is likely liable to Jackeline. He had a venereal disease, yet he had unprotected sex with her, apparently without warning her so that she could either take precautions or assume the risk. Some might even call it "rape" if Scott had sex with Jackeline under false pretenses, but I'm not buying or selling that theory. Nevertheless, "you broke it, you buy it" works for The Jack too.

But, what about Phil Rudd? Jackeline gave it to him, right? Is she liable? Probably not. But what about Scott being liable to Rudd?

Normally, to be liable for transmitting an STD to someone else, you have to have actual or constructive knowledge that you're infected. Rossiter v. Evans, 2009 Iowa App. LEXIS 1720 (Iowa Ct. App. Dec. 30, 2009); McPherson v. McPherson, 712 A.2d 1043, 1046 (Me. 1998); Berner v. Caldwell, 543 So. 2d 686 (Ala. 1989).

Ok, but what about this constructive knowledge? What does that mean? "Actual knowledge" means you "actually know." "Constructive knowledge" means you know, or you should have known.

You should have known you have The Jack? The Supreme Court of Vermont addressed this in Endres v. Endres, 968 A.2d 336 (Vt. 2008). "A plaintiff will rarely be able to show that a defendant had actual knowledge of his or her infection." Therefore, constructive knowledge is enough. In California, there was a rejected argument that a defendant must have actual knowledge of the STD. John B. v. Superior Court, 38 Cal. 4th 1177, 45 Cal. Rptr. 3d 316, 137 P.3d 153 (2006) The court ruled "We are not persuaded that California should be the first jurisdiction in the country to limit liability for the negligent transmission of HIV only to those who have actual knowledge they are HIV positive.”

But, how far does this "constructive knowledge" go? Should Jackeline be liable to Rudd because she should have known she would catch something? I'd imagine that if someone is promiscuous enough that they're not even sure who gave them an STD, they are on some kind of constructive notice that they picked something up somewhere along the way, no?

No.

In Doe v. Johnson, 817 F. Supp. 1382 (W.D. Mich. 1993). A woman claimed that she got HIV from Magic Johnson. She claimed that he should have known he had it, and should have disclosed his sexual history to her prior to having sex with her. After all, his list is legendary. Nevertheless, the court did not find that such a duty existed.

I find that imposition of a duty to disclose a "high risk" lifestyle prior to sexual conduct, which theoretically puts a sex partner "at risk," would open a door better left closed. Doe v. Johnson, 817 F. Supp. 1382, 1393 (W.D. Mich. 1993)

McPherson v. McPherson, 712 A.2d 1043 (Me. 1998) dealt with a less famous party, but similar issues. In that case, a married defendant had an extra-marital affair, contracted HPV, and then gave it to his wife. Since Mr. McPherson never tested positive for HPV and never experienced any symptoms of HPV, he was on neither actual nor constructive notice of his infection. Thus, he was not liable to his ex-wife.

And more recently, a Florida Appellate court tossed out an argument that a high-risk fucker should be liable to the fuckee for any transmission of an STD. Kohl v. Kohl, 149 So. 3d 127 (Fla. 4th DCA 2014). In that case, like McPherson, Mr. Kohl was accused by his wife of sleeping around, but this time with hookers and escorts. Id at 131. This still was not enough constructive knowledge.

Therefore, unless something changes, "constructive knowledge" in this context means "constructive knowledge that you have a disease" not constructive knowledge that you've done things that someone would reasonably extrapolate makes you high-risk.

So Scott owes Jackeline, for sure. Jackeline does not owe Rudd. But, what about Scott owing Rudd, if he got an Scott's Jack from Jackeline? I have never seen a case where the plaintiff is seeking compensation for an STD that he contracted from a girl, who didn't know she had it, from the guy that gave it to her. But, under normal tort principles, such a case might be successful. If you bang someone, and you know you have a communicable disease, and you give it to them, then you should be liable for the reasonably foreseeable results of that bangage, right?

So, if the result is that you give the STD not only to Jackeline, but to your eskimo brother, that's a reasonably foreseeable occurrence.

The Man in the High Castle in Albany and The First Amendment

The Man in the High Castle is a piece of alternative history fiction, which imagines an alternate future in which fascist forces won World War II. The Nazis occupy the eastern part of the United States, while the Japanese take up residence in the west. The Italians are non-existent in the series. You would think that they would get Rhode Island, Connecticut, and New Jersey… but I digress.

So there is an alternate future in which America loses its civil liberties and fascist forces occupy it. There is a surveillance state. Political dissent is not tolerated. Hmm… add in a butterfly ballot and some hanging chads and its… well, I digress again.

Suffice to say, this alternate future provokes the imagination. What lessons does it teach us? There is something for everyone in it. Stand up to fascism? Defend the homeland? We should all be armed?

But, in a day and age when Americans flee both left and right to avoid thought, it just couldn't be without some controversy. Someone had to complain that it invaded their "safe space." THEY'RE FEELS!!! THIS IS ARE COUNTRY!!!

Amazon bought some subway ads displaying the flags of the fictional Japanese and Nazi puppet regimes. Entire subway cars appeared as you might imagine them if The Man in the High Castle were a work of non-fiction. There is a red, white, and blue “rising sun” flag, and a stars and stripes that replaces the 50 stars with one big fascist looking eagle.

It makes you think.... NO, NOT THAT!  NOT THINKZ!

It makes you think…. NO, NOT THAT! NOT THINKZ!

It made me say "it kinda makes you think, doesn't it?"

That's the point.

It makes you think.

It is supposed to make you think.

It makes you think "what if we had not prevailed in World War II" Or, at the very least, it makes you think "what the hell is going on here?" Then, maybe you ask someone in the subway “what is all this?” You think. You talk. You have now entered the marketplace of ideas. Look around. There is some scary stuff for sale here. The good news is that there is other stuff that you might like.

Go ahead. Pick it up. Smell it. Leaf through the pages. You can even taste some of it if you like. Then decide.

Well, that is until the FEELINGS show up like the bat-winged pterodactyls that buzz my car every time I break 120 mph on Interstate 15 on my way back to Las Vegas. Then everything gets all twisted. I start to lose control…

Some people complained that it was "inappropriate" to put symbols of these defeated regimes on display.

New York Mayor Bill de Blasio urged Amazon to pull the "offensive" ads, and Assemblyman Dov Hikind, a Brooklyn democrat, even called for a boycott against the Seattle company.

“While these ads technically may be within MTA guidelines, they’re irresponsible and offensive to World War II and Holocaust survivors, their families, and countless other New Yorkers,” de Blasio said in a statement. “Amazon should take them down.” (source)

What? Too soon?

Irresponsible? What does that mean?

"Offensive?"

THE BAT GOD OF FEELTYDACTYLISM!

THE BAT GOD OF FEELTYDACTYLISM!

The veins bulge from my temples. I grip the wheel with my left hand and swat the bats away with my right. THE FEELTYDACTYLS DESCEND!

In all seriousness, I realize that there are Holocaust survivors left in New York City, and I could not fault them if a few had an anxiety attack upon seeing a Nazi-esque eagle on the American flag. I can't imagine they like walking past the German consulate. I bet they get worked up at a lot of things that don't set me off. So, I see that side of it. But, I'm not about to call to ban Mel Brooks movies, The History Channel, nor heavy metal bands using umlauts in their band names.

Further, if there's one group of people who should want us to consider what might have been had we not fought the Nazis hard enough, I'd say it is the Holocaust survivors. You can’t have “never again,” if you neglect to think about what “again” might look like.

“Offensive” to veterans? I very much doubt that the greatest of “the greatest generation” are as soft skinned as today’s college students. World War II vets ought to point to these ads and say “you see what might have happened, had I not given up those years of my life fighting?”

These guys jumped out of planes into Normandy, or fought hand to hand with the Japanese at Iwo Jima, and Bill DeBlasio thinks "they might be offended?" These are people who have seen real offensiveness. These are not children who whine for “safe spaces” when confronted with opposing viewpoints. These are World War II veterans, not Amherst College students.

You want "offensive?”

I have offensive for you.

I guess I spoke too early when I said the Italians were not part of “The Man in the High Castle,” because governor Cuomo seems to be acting the part of Mussolini. He demanded that the ads come down or he would "order" that they be ripped out. (source) The least he could have done was play Gabriele D’Annunzio. At least that would have been a bit more interesting, what with all the crazy sex and poetry and stuff.

Instead, Governor Cuomo ordered that First Amendment protected expression, expression that might even border on political speech, be suppressed because someone might take offense.

How's your irony meter working?

If you're offended at anything, it ought to be at what Governor Cuomo did.

Just unpack it for a moment. Amazon made a series that is supposed to make us imagine a world where we don't have our basic freedoms. Ads about the series might "offend" a handful of people, so the governor simply decrees "this speech shall end." No due process. No nothing. Just "that offends me, so suppress it." That's called prior restraint.

One might think that this was performance art — that maybe Cuomo was trying to give us a taste in the real world of what it might be like if we had a dictator ruling over us, with no First Amendment to protect our freedom of expression. The ads are inarguably First Amendment protected expression, and aublic officials do not have the right to try and squelch free expression by using coercive threats. See Bantam Books, Inc. v. Sullivan, 372 U.S. 58, 64–72 (1963). When a government official tries to stifle free expression of ideas that he disfavors, either through actual legal coercion or simply through threatening the use of government power, he violates the first Amendment. See American Family Association, Inc. v. City & County of San Francisco, 277 F.3d 1114, 1125 (9th Cir. 2002).

See also Okwedy v. Molinari, 333 F.3d 339, 344 (2d Cir. 2003) (per curiam): “the fact that a public-official defendant lacks direct regulatory or decisionmaking authority over a plaintiff, or a third party that is publishing or otherwise disseminating the plaintiff’s message, is not necessarily dispositive … . What matters is the distinction between attempts to convince and attempts to coerce. A public-official defendant who threatens to employ coercive state power to stifle protected speech violates a plaintiff’s First Amendment rights, regardless of whether the threatened punishment comes in the form of the use (or, misuse) of the defendant’s direct regulatory or decisionmaking authority over the plaintiff, or in some less-direct form.”

If there is anything offensive about this story, it isn’t that someone at Amazon’s ad department had poor taste, it is that Governor Cuomo gave us just a little taste of what it would be like if we really lived in the “High Castle” world, and I for one, don’t like it one bit.

Trumpeting The Right Not To Be Called A Bigot

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

I gotta be me.

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

This week, Trump supporters are offering the argument.

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

YUR SPEECH BROKE MUH SPEECH

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

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

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

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

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

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

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

Trump Cybersquats on Jeb – The Legal Analysis

TRUMPSQUAT

Type in jebbush.com to your browser.

If you would rather not, I can just tell you what happens. It brings you to the Trump campaign website. There are plenty of news sites reporting this, but we at Popehat, we're the only ones to give you the hot and bothered legal analysis.

Someone at the Bush campaign is about to get a stern talking to. Yes, he should have thought to register that domain first. But, we often hear that from cybersquatters, who take the position that you should think to register every permutation of your name, from zero to infinity, or it is fair game.

Morally, we can debate that. Legally, it isn’t the case.

It seems to me that The Donald (or his campaign) is in violation of the ACPA.

The Anti-Cybersquatting Consumer Protection Act

Congress enacted the Anti-Cybersquatting Consumer Protection Act (ACPA )to combat this very kind of thing.

One of the purposes of the ACPA is to stop bad-faith registration and use of domain names, including those that correspond to personal names. See Schmidheiny v. Weber, 319 F.3d 581, 582 (3d Cir. 2003); Shields v. Zuccarini, 254 F.3d 476, 481 (3d Cir. 2001) (The ACPA made it “illegal for a person to register or to use with the ‘bad faith’ intent to profit from an Internet domain name that is "identical or confusingly similar" to the … name of another person or company.”)

Early on, there was significant debate as to whether the ACPA should protect the personal names of individuals. In the end, Congress considered personal names to be so worthy of protection that it codified this protection under two separate sections of the ACPA 15 U.S.C. § 1125(d)(1)(A)(i) and 15 U.S.C. § 1129. (Which is now 15 U.S.C. § 8131)

The initial version of the ACPA provided protection for personal names only to recognized celebrities, stating: “A person shall be liable in a civil action by the owner of a mark, including a famous personal name…” 145 Cong. Rec. H 10823, H10823 (106th Cong. Oct. 26, 1999). Nevertheless, Representative Bono prevailed upon his colleagues to expand this protection to all individuals. “This protection in my opinion must not be limited to the famous or just celebrities, it must be universal.” 145 Cong. Rec. H10823, H10830 (106th Cong., Oct. 26, 1999).

As the ACPA wound its way through the legislative process, the Congressional intent to protect personal names became fully apparent. “This bill prevents cybersquatting when a trademark, service mark, famous name or any personal name is involved.” 145 Cong. Rec. H11811, H11815 (106th Cong., Nov. 9, 1999). Senator Hatch agreed, and upon presentation for the President’s signature, it is clear that the ACPA contained a clear intent to protect both trademarks and personal names.

As with trademark cybersquatting, cybersquatting of personal names poses similar threats to consumers and e-commerce in that it causes confusion as to the source or sponsorship of goods or services, including confusion as to the sponsorship or affiliation of websites bearing individuals' names. In addition, more and more people are being harmed by people who register other peoples names and hold them out for sale for huge sums or money or use them for various nefarious purposes. 145 Cong. Rec. S14986, S15019 (106th Cong., Nov. 19, 1999).

This Congressional intent manifested itself in the enactment of not one, but two separate additions to the Lanham Act providing protection for personal names, both of which would entitle Jeb to relief. 15 U.S.C. § 8131 (the former 1129) and 15 U.S.C. § 1125(d)(1)(A)(i).

The Congressional intent seems to be to provide two avenues for an individual to reclaim his or her name from a cybersquatter. Section 8131 has a lower standard of proof – requiring only that the Plaintiff demonstrate that the Defendant had a “specific intent to profit.” However, that "profit" must be sought through sale of the domain name itself, not just through its use. On the other hand, 15 U.S.C. § 1125(d)(1)(A)(i), requires that the Plaintiff show that the Defendant had a “bad faith intent to profit,” but requires no specific intent to profit through the sale of the domain name. Section 1125(d) provides for financial penalties of between $1,000 and $100,000 in statutory damages in addition to the forfeiture of the domain name. Section 8131 comes along with lesser remedies of forfeiture and discretionary awards of attorneys’ fees and costs to the prevailing party.

Now if Jeb was not famous, and thus his name did not function as a trademark? The matter might be a little different. In Dawson v. Brandsberg, 2006 U.S. Dist. LEXIS 73512, 13-7 (W.D. Va. 2006) the Western District of Virginia implicitly agreed that 15 U.S.C. § 1125(d) covers all personal names, even those that are not personal names and trademarks. However, this theory was explicitly rejected by the Middle District of Florida in Salle v. Meadows, 2007 U.S. Dist. LEXIS 92343 (M.D. Fla. 2007). C.f. Bogoni v. Gomez, 847 F. Supp. 2d 519, 524 (S.D.N.Y. 2012) (15 U.S.C. § 8131 and 1125(d) are strikingly similar, and analyzed similarly).

But, is there an “intent to profit?” I see nothing in the language of 1125(d) to suggest that “profit” is limited to pecuniary gain. The Northern District of Texas specifically addressed this question. “Profit need not be pecuniary to come within the ACPA, provided the person has a bad faith intent to benefit in some way from his registration, trafficking in, or use of the plaintiff's domain name.” Bear Stearns Cos. v. Lavalle, 2000 U.S. Dist. LEXIS 23007, *18 (N.D. Tex. Oct. 27, 2000)

The First Amendment

Ok, but what about a First Amendment defense? Wouldn’t that allow Trump to use the domain name this way? I don’t think so.

On one hand, other famous people have lost cases like this. For example, Jerry Falwell famously lost a case in which a critic registered www.fallwell.com. The court in that case said that since there was no bad faith intent to profit, there was no ACPA violation. Lamparello v. Falwell, 420 F.3d 309 (4th Cir. 2005). In that case, the fallwell.com misspelled domain name directly led to a criticism site.

In another case, a less-famous person (yours truly) won on similar facts. The infamous Crystal Cox had criticism sites, aimed at me. But, they were not launched for the purpose of criticism, but rather as part of an extortion scheme. Randazza v. Cox, 920 F. Supp. 2d 1151, 1157 (D. Nev. 2013) (“Defendants' actions leading up to the filing of the Complaint, as well as Defendants' past behavior, as represented in Plaintiffs' reply briefing, clearly seems to indicate cyber-extortion. Specifically, Defendant Cox's request for $5 million in exchange for and her offering of "reputation management services" indicate her intent to profit from the registration of Plaintiffs' personal names as Domain Names.”) See also Marc J. Randazza v. Reverend Crystal Cox et al., D2012-1525 (WIPO Nov. 30, 2012) (“The Respondent then offers to provide “reputation management” services to her target in return for a fee. Such websites are not ‘criticism sites’ but merely a pretext for the Respondent’s bad faith extortionate use”)

Of course, Donald Trump is not Crystal Cox, although one might wonder if they use the same hairdresser. Trump is using the domain name for political purposes, but certainly to profit in some manner, consistent with how that term has been interpreted in the past. If the domain forwarded to a website that was simply devoted to criticizing Jeb, like this one, it might be ok. Even if it just forwarded to a video of Rick Astley, it might very well be protected (especially if Jeb filed suit in the Fourth Circuit, where the Falwell case is binding).

But, as it stands, I’d say that Trump’s use of jebbush.com is a violation of 15 U.S.C. § 1125(d), and perhaps 15 U.S.C. § 8131, although the latter is a bit of a stretch, since that has tended to require an actual pecuniary intent, not just a broadly-defined profit motive.

Conclusion

Whoever is in charge of the internet team at Jeb’s campaign ought to meet the same fate as the guy who green lighted his idea to have a religious test for immigration. On the other hand, Jeb can probably get that domain name from Trump under 15 U.S.C. § 1125(d).

Now Donald, get a Rickroll on that domain, and maybe you can keep it for a while.

[epilogue] Nothing in this post should be deemed to be a statement about Trump as a candidate. He isn't my first choice. But, I prefer him over Jeb.