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

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

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

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

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

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

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

. . . .

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

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

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

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

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

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

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

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



You can't make me.

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

. . . . maybe.

Like what?

Joshua Goldberg.

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

yes him

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

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

Only one count?

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

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

So he could get charged with more later?

Sure, if they've got the evidence.

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

What's that when it's at home?

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Sure looks that way.

So, how much time could he do?

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

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

So. What's next for him?

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

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

What? He's trying an insanity defense?

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

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

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

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

What do you anticipate happening next?

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

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

Is that all?

For now.

Now do the DMCA case!

Bite me.

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

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

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

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

Yahoo! "News" was even more indignant:

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

What happened? Let Yahoo! describe it:

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

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

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

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

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

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

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

No shit.

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

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

A Tale of Two Consequences For Censorious Asshattery

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

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

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

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

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

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

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

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

Please join me in proclaiming that #JimArdisIsAnAss.

MedExpress Ordered To Pay Lawyers Who Responded To the Popehat Signal

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

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

Satire vs. Potentially Defamatory Factual Statements: An Illustration

Earlier today, author John Scalzi posed this question:


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

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

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

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

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

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

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

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

The Law

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

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

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

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

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

The Facts Here

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

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

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

Patterico Prevails: Vexatious Legal Attack on Speech Fails

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

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

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

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


Prior Restraint of Daily Iberian More Outrageous Than We Feared

Last week I described how District Judge Curtis Sigur issued a broad temporary restraining order at the behest of attorney David Groner imposing clearly unconstitutional prior restraint on the Daily Iberian of New Iberia, Louisiana.

This is not a story where the facts, as they come out, show that everyone overreacted. This is a case where the facts are even worse than initially reported.

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Louisiana Judge Issues Ludicrously Lawless Takedown Order To Newspaper

Attorney David Groner of New Iberia, Louisiana is angry. Those bastards at the Louisiana State Bar took a run at him, but he mostly beat the rap. He only took a six-month suspension, and that suspension is suspended if he successfully completes a year of probation.

But then some jackass on the web forum of The Daily Iberian mouthed off about him, and linked the public document announcing his suspension, just like they had a First Amendment right to do that or something. What's a lawyer to do?

Thank God for compliant judges with quick rubberstamps. David Groner sued, and District Judge Curtis Sigur immediately granted him a temporary restraining order directing the New Iberian to delete the comment, remove the link to the public document, and who knows what else:

In the lawsuit, Groner asked a judge to prohibit The Daily Iberian from publishing on its website any article or story in which Groner is accused of "dishonesty, fraud or deceit in connection with a Louisiana Supreme Court decision or similar matter."

The lawsuit was filed Aug. 25. District Judge Curtis Sigur signed a temporary restraining order the same day the lawsuit was filed in support of Groner's request.

The Daily Iberian has obeyed rather than risk contempt, but is appealing.

Maybe the anonymous comment falsely described the bar proceedings against David Groner. But forcing the paper to take the comment down — not to mention the link to a public document — is nothing short of lawless. First, the paper isn't responsible for the comment as a matter of law under Section 230 of the Communications Decency Act. Second, the judge's order is classic — and classically unconstitutional — prior restraint. If you are defamed, your remedy is to seek damages. Maybe, once a jury has ruled, you can get an order prohibiting the defendant from repeating the thing the jury found to be defamatory. But a pre-trial order directing a newspaper to take something down, including a public document? Obvious prior restraint of the sort that thinking judges reject immediately.

Our rights depend on the judges who are supposed to enforce them. District Judge Curtis Sigur is violating his oath to uphold the constitution. Shame on him.

As for David Groner — well. He's the guy who asked for the prior restraint, including the deletion of a link to a public document about him. How trustworthy is that?

Edited to Add: David Groner had a Facebook post about the paper.

After over 30 years as a subscriber, today I have cancelled my subscription to the Daily Iberian.
For years now, the paper has become a poor choice for area news and certainly is a day or two late on state or national news.

The main reason however is that the paper runs a website that allows anti-Semitic; racist and homophobic rants under the guise of anonymous postings. In addition and in particular, any person in the public view is defamed, attacked and vilified and even when the administrator ( the newspaper) knows of the false defamatory posting, they refuse to remove or censure. Of course there is no way of knowing if the staff at the Daily Iberian is responsible for the postings themselves. They have become smug and arrogant in their claim for " freedom of speech".

I can no longer condone a website that tears at the fabric of our community and therefore have chosen to refuse to buy the newspaper. I have many friends who have previously cancelled their subscription, I now regret it has taken me this long to join them.

Two thoughts: (1) nice scare quotes on "freedom of speech," and (2) don't you think the significant point isn't that you cancelled your subscription but that you sued them and got a lawless court order imposing prior restraint on them?

Lawyer Threatens Yelp Reviewer With Lawsuit, Is Wrong

Kyle Barella is an immigration lawyer with his own firm. Last week he gave an "exclusive" interview to Breitbart News Network on his views about birthright citizenship and the whole "anchor baby" controversy. That was, of course, his right. He said he thinks that birthright citizenship is being abused and that we should end it. He said so rather mildly, particularly given where he was being quoted.

This is modern America, so naturally someone was upset about his viewpoint and left his law firm a one-star review on Yelp complaining that his ideas are "borderline racist." It's his only review right now. The reviewer — "Amir K." — thinks that Kyle Barella shouldn't be an immigration lawyer because of his views on birthright citizenship:

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