Lawsplainer: When Must Federal Judges Recuse Themselves, Anyway?

I have a question about Donald Trump.

Hell. I am in Hell. This is Hell.

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

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

Yes.

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

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

You have no idea.

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

Fine.

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

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

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

Then it offers specifics:

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

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

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

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

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

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

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

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

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

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

So all federal judges are dudes?

Don't start with me.

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

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

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

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

What other kinds of arguments have federal courts rejected?

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

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

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

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

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

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

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

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

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

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

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

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

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

So Judge Curiel was right to refuse to recuse himself?

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

Do you think his attorneys will make such a motion?

No.

So what's Trump doing?

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

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

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

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

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

Lawsplainer: Is There Anything Unusual About Judge Curiel's Orders In The Trump University Case?

Where have you been?

Busy. Lawyering. Parenting. Playing Stellaris. Thus and such.

You have obligations!

You have genital warts.

Hey! Be nice. So, what's up with this crazy judge?

You'll have to be far more specific.

You know, the judge who has it in for Donald Trump.

Oh. United States District Judge Gonzalo Curiel, the federal judge that has Trump's jimmies all berustled? This guy?

The trial, they wanted it to start while I am running for President. The trial is going to take place sometime in November. There should be no trial. This should have been dismissed on summary judgment easily. Everybody says it, but I have a judge who is a hater of Donald Trump. He’s a hater. His name is Gonzalo Curial. And he is not doing the right thing. I figure what the hell? Why not talk about it for two minutes. Should I talk about it? Yes? [cheers and applause] so we should have won. . . .

I am getting railroaded by a legal system, and frankly they should be ashamed. I will be here in November. Hey, if I win as president, it is a civil case. I could have settled this case numerous times. But I don’t want to settle cases when we are right. I don’t believe in it. When you start settling cases, do you know what happens? Everybody sues you because you get known as a settler. One thing about me, I am not known as the settler.

And people understand with this whole thing, with this whole deal with the lawyers, class action lawyers are the worst. It is a scam. Here is what happens. We are in front of a very hostile judge. The judge was appointed by by Barack Obama – federal judge. [Boos]. Frankly he should recuse himself. He has given us ruling after ruling, negative, negative, negative. I have a top lawyer who said he has never seen anything like this before. So what happens is we get sued. We have a Magistrate named William Gallo who truly hates us.

Yeah, that guy. Is he biased against Trump? Are his rulings outrageous or unusual?

No. I mean, I'm biased against Trump. But Judge Curiel's rulings in the case do not seem extraordinary.

What's the case about, anyway?

There are actually two relevant cases before Judge Curiel.

The first is a purported class action filed in 2010, asserting that Trump and Trump University violated California's ridiculously overbroad and malleable unfair business practices law, California's consumer protection laws, California's false advertising laws, that they breached Trump U's contracts, and that they defrauded students, among other things.

The second case is a 2013 purported class action by the same lawyers with the same purported classes of student plaintiffs asserting that Trump and Trump University violated RICO laws.

Wait a second. Don't you always say that civil RICO is bullshit?

Yes. In general, if the defendants don't have "the" in their names, civil RICO is overwrought bullshit. A purported RICO claim split into a separate complaint smells like particularly obvious bullshit. More on that later.

So why didn't Judge Curiel get rid of this at summary judgment, like Trump says?

First you've got to understand what summary judgment is. It's not "my evidence is stronger."

Here's how it works. One side files a motion attacking the complaint, or certain causes of action in the complaint, or maybe a defense, and points out to the court (usually by attaching evidence from discovery) that there is no evidence supporting the other side's position. Then the burden shifts to the other side to come forward with admissible evidence supporting their claim or defense.

So, for instance, say you sue me for copyright infringement for posting your art on Popehat. I could make a motion for summary judgment supplying my declaration that I never posted your art on Popehat. The burden would then shift to you to come forward with admissible evidence — say, a declaration from you, with screenshots — to show that there is a dispute of material fact. That means you have to offer evidence that there's a factual dispute about a fact that's meaningful to the claim at issue.

And then the judge decides who is right?

To be more precise, the judge then evaluates whether there is any evidence to support the attacked claim or defense.

The judge doesn't weigh evidence or determine credibility. If I have 20 declarations saying that your art never appeared on Popehat, and you have one declaration saying that it did, then you win the motion because there is some evidence supporting your claim. But if you can't supply admissible evidence — say, if you can only offer hearsay that someone told you they saw your art on Popehat — then I win.

So what happened here?

In the 2010 case, Donald Trump filed one motion for summary judgment and Trump University filed another.

Trump's own motion argued that he didn't make any of the alleged misrepresentations about Trump University that plaintiffs claim and therefore couldn't be held liable for them, and that the law didn't allow them the damages they demanded. Trump University argued that the law doesn't allow the plaintiffs the damages and injunctions they are asking for. The plaintiffs opposed both motions, arguing they had offered admissible evidence creating factual disputes about Trump's personal liability and Trump University's liability.

So Judge Curiel shot Trump down?

Partially, but not completely. Judge Curiel issued a very detailed 44-page order analyzing the arguments. The order has a good review of the evidence that the plaintiffs offered to support their case.

Ultimately he granted the motions in part and denied them in part. He threw out all of the demands for injunctive relief against Trump University, but kept the demands for restitution and other forms of monetary relief. He based that order on an earlier ruling limiting the class action claims. As to Donald Trump himself, Judge Curiel found that plaintiffs had offered admissible evidence creating a genuine dispute about whether Trump "hand-picked" Trump University instructors as he claimed, that they had offered enough evidence to create a dispute about whether Trump was responsible for Trump University advertisements because he reviewed them personally, and that they had offered enough evidence to create a factual dispute about whether plaintiffs relied to their detriment on false representations for which Trump could be held responsible. The court granted Trump's motion to throw out claims for injunctive relief against him.

The end result was that the demands for damages stayed alive, but demands for injunctions — which really didn't drive the case — got thrown out.

What about summary judgment in the 2013 case?

It hasn't been decided yet. Trump didn't file his Motion for Summary Judgment until April 2016 and it's not even set for hearing until July 2016.

So does the summary judgment order suggest Judge Curiel is a partisan biased against Trump?

No.

Look, in the modern political climate I could burn ten thousand words on this and people who support Trump wouldn't buy it and people who oppose Trump would buy it even if the only word was "dildo." But in my judgment, Judge Curiel's partial denial of the summary judgment is pretty straightforward and well within the range of normal federal judicial decisions on summary judgment.

First, keep in mind Judge Curiel hasn't given plaintiffs everything they wanted — not by a long shot. The point of a class action is to get your individual plaintiffs to represent a huge class of people, so you can prove their individual cases but get damages to cover hundreds or thousands or tens of thousands of people. It's a huge force multiplier and carries the potential for ruinously gigantic damages. Judge Curiel didn't certify the class on all the claims that plaintiffs wanted. That is, as to some of their claims, he said they could only seek their own personal damages, not damages on behalf of everyone who went to Trump University. For instance, he allowed the plaintiffs to represent classes under state consumer laws, but not under state common law claims like breach of contract and fraud.

Later, on Trump's motion, Judge Curiel decertified the class in part. That means that he granted Trump's motion to take away part of their class representative status and modified how they must prove their cases. Specifically, Judge Curiel ordered that (1) the case would have a separate trial on liability and then a separate trial on damages only if plaintiff prevailed (which defendants generally like because it keeps plaintiffs' damages sob stories out of trial and keeps the jury from being prejudiced by big damages numbers or by evidence of how much money the defendants have); (2) rather than assuming if plaintiffs won that all class members would get a full refund, Trump and Trump University would be able to litigate how much value they got and how much or little of a refund they should get.

On summary judgment, he gave the plaintiffs much of what they wanted — he knocked out the demands for injunctions, but those are insignificant compared to damages. But his analysis of the evidence was pretty straightforward. Judges aren't supposed to grant summary judgment if evidence is weak. They're only supposed to grant if if there's no dispute of fact. Here, the plaintiffs offered evidence which, if believed, would show that Trump was responsible for false statements and the students relied on those statements. I don't think it's a particularly notable decision.

Does that mean you think the plaintiffs should win?

I don't have an opinion on that.

It sure sounds like Trump University made false statements and promises. But from what I've seen, the best defense (though not necessarily the one that Trump will follow) is that anyone minimally rational would have recognized that all of the Trump University sales patter was puffery, trumpery, and bullshit, the equivalent of saying your coffee shop offers the most amazing coffee in the universe. But that's a jury question on these facts. Trump's gigantic successes in the Republican primaries demonstrates that many Americans may not share my view that most of what he says is obviously not to be taken seriously. Also, the RICO claim is rather clearly overcharged nonsense, like the vast majority of civil RICO claims. Congress needs to do something about RICO so it's not used as an exclamation point any time anyone sues for fraud. Judge Curiel may yet grant summary judgment on that second case — though Trump's motion in that case is curiously narrow.

So does the record support that Judge Curiel is in the tank for the plaintiffs and outrageously biased against Trump?

No. I don't think it does. However, to reach that conclusion, you need to actually read stuff and have a vague idea of what you're talking about, so I don't expect it to take hold, frankly.

FBI Actively Investigating Prenda Law Team For Fraud

The Federal Bureau of Investigation's Minneapolis office is conducting an active investigation of the principals of Prenda Law, the notorious team of crooked copyright trolls that I've spilled so much e-ink over here.

Today I spoke with two sources who confirmed receiving a letter from the FBI inquiring about their experiencing with Prenda and seeking information about Prenda's activities. The letter — which I have reviewed — has been sent out on a large scale to attorneys who have represented targets of Prenda's litigation. Here's what the letter reveals:

  • The FBI is looking at the various entities Prenda Law used, including Steele Hansmeier PLLC, LW Systems, Livewire Holdings, AF Holdings, Ingenuity13, and Guava LLC.
  •  Though the letter does not name individual targets, the context makes clear that the FBI is investigating the principals of Prenda Law (with the exception of Paul Duffy, I suppose).
  • The FBI has devoted substantial resources to soliciting victim impact in a systematic way, and based on its questions about availability to testify is contemplating prosecution.
  • The FBI is focusing on "a fraudulent scheme known as 'trolling'" — which may indicate that the FBI has concluded that Prenda Law principals themselves uploaded their pornography to BitTorrent sites in order to sue people who downloaded it.

Based on my 21 years in the federal criminal justice system, I believe the letter reflects an active, determined investigation in its later stages.  The letter represents an abandonment of operational security and confidentiality; it suggests the FBI no longer sees a need for stealth.  That, in turn, suggests that the FBI believes it's already developed the evidence it needs to prove the substance of its case (that Team Prenda committed wire and/or mail fraud) and is just identifying as many victims as possible for potential witnesses and to establish the amount of damages.   Bear in mind that under the Federal Sentencing Guidelines, the more money wrongdoers made, the more time they're facing.

I'll report more as I learn more.  But as I often say — the wheels turn slowly, my friends. But they turn. Team Prenda needs federal criminal defense attorneys, and needs them right now.

Kosovo Deserves Digital Independence 

When I did my LLM in Italy, I got sat at the “Muslim Table” during a dinner. They plunked down three bottles of wine. I said “well, as long as you guys don’t mind me drinking here, I’ll be happy to be at the Muslim table.”

The guy next to me says "I can not allow an American to drink alone. May Allah forgive me.” Then we drank all the wine. Then we realized that we actually look a lot alike. Like creepily so. A long friendship was born.

He happened to be from Kosovo.

Well, anyhow, I was emailing with him, and noticed that his government email address ended in .com. I asked “what the hell is up with that?” He explained that ICANN wouldn’t give Kosovo its own ccTLD because they don't recognize it as a “real country.”

That grinds my gears.

Kosovo gained political independence, but it remains a digital vassal of its former master, Serbia. Despite Kosovo’s political independence, won through armed conflict and international diplomatic recognition, ICANN denies the new country its online independence by refusing to grant it control of its own top level domain.  ICANN’s refusal to do so does not seem to have any degree of intellectual honesty, but seems more rooted in political expediency and a desire to avoid offending Serbia (and thus by extension, Russia).  After a full exhaustive study of the legal and political issues, I published Kosovo’s Digital Independence: Time for Kosovo’s CCTLD.

In the article, I discuss the fact that this is not just a matter of national pride – although national pride should be a sufficient justification.  The real justification is that Kosovo deserves full digital independence.  A ccTLD is not merely a symbolic indicator of independence, however. Control over ccTLDs allows a nation to control an essential part of their information and technological infrastructure that can affect telecommunications, power grids, banking, and electronic surveillance. National governments recognize ccTLDs as a component of their sovereignty and a vital national interest.

Kosovo broke most other technological ties with Serbia. For example, Kosovo and Serbia agreed that Austria could apply on behalf of Kosovo for an international country calling code as part of the 2013 Brussels Agreement.  Up until 1999, Kosovo was covered by the Serbian cell phone network and used the +63 dialing code.   Without its own dialing code but with a need to distance itself from Serbian control, Kosovo could use the old Yugoslavian +381 code or could “borrow” a code from another country.   In 1999, Kosovo began using Monaco’s +377 code.   The Kosovo government essentially regards +63 as illegal since 2008 and kicked out most of the Serbian cell network.

As for its ccTLD designation, Kosovo cannot get out from under Serbia’s thumb so easily.  Kosovo continues to remain under Serbia’s ccTLD, even if as a practical matter Kosovo refuses to use it. Kosovo government websites are all on other TLDs, usually “.com” “.net” or “.org.”  While this is superior to using a hostile foreign government’s ccTLD, it places these TLDs at least partially under the laws of the United States, as they are privately administered by Verisign52 and Public Interest Registry.   Legally, if someone wanted to take action against these domains, they could do so in the Eastern District of Virginia, even though American courts would normally have no place meddling in the affairs of any other independent nation.

Ultimately, this renders Kosovo as an online anomaly. It violently broke free from Serbia, and no reasonable observer can likely see it ever returning to Serbian rule.  Since its official ccTLD remains .rs (Serbia) its online presence is still under the Serb National Internet Domain Registry.  To evade the censorship and cybersecurity issues that would arise from using “.rs,” Kosovo places its online flag in Virginia. Given the revelations of what the U.S. government and U.S. corporations consider to be fair game when it comes to surveillance and the commercial and governmental use of personal information, one might imagine that this is an inappropriate state of affairs for a self-respecting independent country.

While ICANN refuses to give Kosovo a TLD, it lacks any justifiable reason.  Is it controversial?  Of course it is.  But is it any more controversial than granting the Palestinian State its own TLD?  The Soviet Union fell decades ago, but Lenin's old empire remains active online under .su.  East Timor, before and after independence, had its own “.tp” and then “.tl.”  And, most analogously, Taiwan is at .tw, despite being recognized by fewer nations than Kosovo and both it and China continuing to maintain that it is not actually “independent.”  Finally, even insignificant specks of land like Saint Helena Island and Pitcairn Island have complete digital independence, while ICANN refuses to give it to Kosovo.

As Kosovo’s recognition as an independent state grows, Kosovo still has to struggle to fully escape Serbia’s orbit. The Declaration on Principles of International Law Concerning Friendly Relations and Co-operation Among States in Accordance with the Charter of the United Nations provides that as a matter of international law, “it is a bedrock principle that every state ‘has the right freely to choose and develop its political, social, economic and cultural systems.’”  The international and technological communities have the ability to help Kosovo along this path to full digital independence—or to at least get out of the way. Kosovo’s full and complete independence requires that it have its own country code top-level domain.

ICANN could easily remedy the situation by granting a ccTLD to Kosovo as it has done for many countries (and for a number of less- than countries) in the past. ICANN relies on its general practice of using ISO 3166-1 country codes to refute any discussion of granting Kosovo its own ccTLD, although it has also made clear that this practice is not its official standard.  Support from 111 of the UN members and the United States’ backing of Kosovo make it inexplicable that Kosovo remains without its own ccTLD.  Kosovo gained its territorial independence through armed struggle and international recognition. Objections to its independence lack intellectually honest justification, and its digital independence should not be held hostage by old Balkan rivalries. The time has come for Kosovo to be given a full seat at the Internet, international, and independence tables.

The full study of this issue can be found at Kosovo's Digital Independence: Time for Kosovo's CCTLD, Wisconsin Int’l Law Journal, http://ssrn.com/abstract=2754182 I hope you'll enjoy reading it.

Popehat Signal Update: Awesome Team Gets Great Appellate Result in Frivolous Case By AIDS Denier

Way back in 2013 I lit the Popehat Signal to get pro bono help for J. Todd Deshong, a blogger and HIV-positive AIDS activist. Woo merchant and AIDS denialist Clark Barker filed a frivolous lawsuit against Deshong, claiming that Deshong's critical web sites defamed him and infringed his trademark. A legal Dream Team assembled swiftly and formidably, and in 2014 that Dream Team got the frivolous complaint dismissed.

So far so good. But you can't fight vexatious litigants just by winning motions; you have to inflict upon them the costs of their actions. The Dream Team sought attorney fees under the Lanham Act, which allows a prevailing party to get fees in an "exceptional" case. The federal district court denied the request, saying that there wasn't enough evidence that the plaintiff acted in bad faith.

But that's not the right question, the Dream Team asserted. Today, the United States Court of Appeals for the Fifth Circuit agreed. They reversed the refusal to award fees and sent it back for the trial court to decide under the right standard:

We merge Octane Fitness’s definition of “exceptional” into our interpretation of § 1117(a) and construe its meaning as follows: an exceptional case is one where (1) in considering both governing law and the facts of the case, the case stands out from others with respect to the substantive strength of a party’s litigating position; or (2) the unsuccessful party has litigated the case in an “unreasonable manner.” See Octane Fitness, 134 S. Ct. at 1756. The district court must address this issue “in the case-by-case exercise of their discretion, considering the totality of the circumstances.” See id.

This standard is much friendlier to the targets of frivolous lawsuits. It doesn't require an inquiry into subjective bad faith (which judges are often loath to find) and allows consideration of both the objectively meritless nature of the claims and the methods used to litigate. That will make it easier for other Dream Teams to get attorney fees when censorious plaintiffs abuse the legal system to suppress speech.

Congrats to Paul Alan Levy and Gill Sperlein for this appellate win.

How To Write (Or Solicit) A Good Letter Supporting A Defendant At Sentencing

This week various political figures took some abuse for writing letters seeking leniency in the sentencing of former House Speaker Dennis Hastert, who got a 15-month sentence for monetary transactions designed to conceal that he was paying off victims of sexual abuse.

I've argued before that if you write a sentencing letter in support of a famous (or notorious) person, the media will report on it in an insipid and sensational way. That's inevitable, and media reaction isn't my focus. My focus is suggesting how to write a letter that furthers the best interests of the defendant and is most likely to move the judge towards a better result.

With that in mind, here are some rules:

This letter is not a vehicle for you to express yourself. A letter supporting a defendant is not an opportunity for you to posture, work out issues, or express yourself artistically. It is an opportunity to help the judge see the defendant as a human being. If you cannot stop yourself from making your letter about you instead of about the defendant, or if you find yourself focusing on how the letter makes you sound, please don't write the letter.

Nobody cares what you think about this case or the criminal justice system. Now is not the time to say that the criminal justice system is unjust or should be spending resources on other things or how far worse criminals get away or how this shouldn't be a crime or this is politically motivated. Go write that shit on your LiveJournal. It will annoy the judge.

For these purposes, the defendant is not innocent. Most likely the defendant pled guilty. Or maybe he or she was convicted by a jury. Either way, the judge is starting from the premise that the defendant is guilty. Appeals and habeas corpus motions — or, maybe, attorney arguments about residual doubt — are the place for discussions of innocence. A sentencing letter isn't. "I know he didn't do it" and "this must be a mistake" dramatically undermine a defendant's statements of contrition in plea cases, and simply annoy the judge in jury verdict cases. If the defendant has done his or her best to accept responsibility and covey their regret and you come in and write "I've talked to him and I know he didn't do it," you are undermining the defense. It's not persuasive.

Don't bother if you don't know the defendant fairly well. A good sentencing letter isn't like a letter of recommendation that a professor writes about one of the 150 students in a frosh cattle-call course. It's something you write if you know the person — if you have a connection to them. Letters by mere acquaintances are worthless at best and damaging at worst.

When you praise the defendant's character, bear in mind they are being sentenced for a crime. The core idea "I was shocked by this case because I know the defendant to be a good person" is okay, expressed carefully. So, for instance, if your friend is being sentenced for structuring monetary transactions to hide the fact he's paying off people he sexually abused as kids when he was a coach, saying "[w]e all have our flaws, but Dennis Hastert has very few" is appallingly tone-deaf and probably hurts the defendant. Praise of the defendant can't ignore the present circumstances, or it seems uninformed or stubbornly blind. "Defendant's behavior towards me has been so kind and decent that these serious charges were devastating" is the right tone.

Don't minimize the crime. Why do I have to tell you this? Don't suggest that the crime isn't a big deal. Even if it isn't. That's for the defense lawyer to argue, not you. You're going to undermine the defendant's attempt to show contrition.

Don't attack the victim. You utter moron.

Don't talk about your yacht. When you're talking about how well you know the defendant and how you and the defendant have interacted, avoid emphasizing things that highlight the defendant's life of privilege and/or power. First, it sounds like you're bragging, which is obnoxious. Second, it sounds like you are implying that rich or powerful people should get lower sentences, will will antagonize the judge. Third, it tends to make the defendant look worse: if he or she had so much, why did they do this? Downplay it.

Humanize the defendant, preferably with private conduct. It's fine to talk about how a defendant has led a life of public service. But the best stories to tell are the ones about how the defendant acted when nobody was looking. Some of the most powerful letters are about the defendant's small, private acts of humanity, compassion, and decency. You are, after all, asking a judge to see this defendant as an individual human being rather than as a statistic — to exercise mercy. What better way that to tell a story about such mercy exercised by the defendant? The letters I like best aren't the ones about how my client paid to attend a charity gala every year. They're the letters that tell the story about how the client visited the company's receptionist in the hospital and took her whole visiting family out to dinner, or about how he or she helped a stranger, or how he or she showed private kindness. "This Congressman supported the Family Leave Act" is not nearly as powerful as "when my mom died Bob stayed up with me all night and drove me to the funeral home and sat with me while I handled her affairs."

Don't tell the judge what to do. Some lawyers ask letter-writers to ask for a specific sentence, or to ask explicitly for leniency. I don't. I don't think it's effective. The judge knows what the defense is asking for — the defense lawyer is arguing it. Parroting the defense lawyer's talking points makes the letters sound too orchestrated. For most letter-writers, you're asking the judge to consider the type of person you know the defendant to be. The right tone is "I ask you to consider these experiences in sentencing my friend" or "when you consider the crime, I ask you also to consider these things my friend is done." The exception is a close family member who is directly impacted by the sentence — "I don't know how we can keep the house or keep the kids in school if my spouse goes to prison."

Not every lawyer agrees with these rules. But I find them more effective and the judges I've talked to find such letters more persuasive.

Marc Randazza Wrote An Amicus Brief About Klingon, And It's Magnificent

So a while ago my friend and co-blogger Marc Randazza texts me. "If a 1 is 'I banged any chick I ever just winked at' and a 10 is 'I can recite hamlet in the original klingon,' how much of a Trekkie are you?"

Marc's been my friend for quite a while now so this text wasn't off-putting in the least. For the record, I told him a 6.

Marc needed some translation help. Why? Because he was writing an amicus brief for the Language Creation Society to argue that Paramount Pictures may have a copyright on Star Trek but it can't have a copyright on the Klingon language. The legal point is a fascinating one: if a language is created in connection with a copyrighted work of fiction, can there be a copyright on other use of the language, even if it's not to speak the lines from the copyrighted work?

This is not a case about Defendants using specific, previously used Star Trek dialogue, such as “Tea, Earl Grey, Hot”, but rather about precluding Defendants from creating original dialogue that happens to be in the Klingon language. Plaintiffs provide no authority supporting their assertion that Klingon (or any language) can be copyrighted. “[T]here is no Klingon word for ‘deference’”, and Plaintiffs are entitled to none. Norwood v. Vance, 591 F.3d 1062, 1074 n. 4 (9th Cir. 2010) (Thomas, J. dissenting).

Whether you like law, or language, or Star Trek, the brief is a joy. Marc continues to demonstrate that legal writing can be entertaining, irreverent, and persuasive at the same time.

Regarding That Oklahoma Rape Decision You're Outraged About

Did you hear? Oklahoma said it's legal to rape someone if they're unconscious from drinking! They said it's not rape at all! It's classic victim-blaming! It's outrageous! It's rape culture! It's just what you would expect from one of those states!

Or not.

In fact, it is illegal in Oklahoma to rape someone who is unconscious. That is, to be explicit, under Oklahoma's rape statute it's illegal to vaginally or anally penetrate someone when "the victim is at the time unconscious of the nature of the act and this fact is known to the accused." It's also illegal if the victim is unconscious as a result of a drug administered by the accused.

But Oklahoma, like most states, separates unlawful anal or vaginal penetration from unlawful oral penetration. Oklahoma law — like the law of many states – still categorizes oral sexual contact as "sodomy" and refers to it as part of "the detestable and abominable crime against nature." Oklahoma is one of 14 states that still has a law criminalizing sodomy on the books.

Oklahoma makes involuntary oral contact illegal in specified circumstances:

A. Any person who forces another person to engage in the detestable and abominable crime against nature, pursuant to Section 886 of this title, upon conviction, is guilty of a felony punishable by imprisonment in the custody of the Department of Corrections for a period of not more than twenty (20) years. . . . .

B. The crime of forcible sodomy shall include:

1. Sodomy committed by a person over eighteen (18) years of age upon a person under sixteen (16) years of age; or

2. Sodomy committed upon a person incapable through mental illness or any unsoundness of mind of giving legal consent regardless of the age of the person committing the crime; or

3. Sodomy accomplished with any person by means of force, violence, or threats of force or violence accompanied by apparent power of execution regardless of the age of the victim or the person committing the crime; or

4. Sodomy committed by a state, county, municipal or political subdivision employee or a contractor or an employee of a contractor of the state, a county, a municipality or political subdivision of this state upon a person who is under the legal custody, supervision or authority of a state agency, a county, a municipality or a political subdivision of this state; or

5. Sodomy committed upon a person who is at least sixteen (16) years of age but less than twenty (20) years of age and is a student of any public or private secondary school, junior high or high school, or public vocational school, with a person who is eighteen (18) years of age or older and is employed by the same school system.

So. In this case, one juvenile preyed upon another juvenile while she was unconscious from drinking. To be explicit again, he put his penis in her mouth. Neither was over 18. When awake she was not mentally incapacitated. He didn't use force or violence. He was charged in juvenile court. The juvenile court judge ruled that the Oklahoma statute covering involuntary oral contact didn't cover that conduct. The court of appeals agreed.

There was no normative judgment about rape. Nobody suggested that people who drink are asking for it. The normative judgment was about criminal procedure: if the law doesn't prohibit something, then you can't convict someone of it (or, in this case adjudicate a juvenile as delinquent). The appellate court cited not another rape case for this proposition, but a political corruption case that discussed statutory interpretation:

When construing criminal statutes, we follow the rule of strict construction. . . . We will not, in order to justify prosecution of a person for an offense, enlarge a statute beyond the fair meaning of its language or what its terms justify. . . . . We construe any criminal statute strictly against the State and liberally in favor of the accused. . . . . We give statutory language its plain and ordinary meaning.

So. If I were the prosecution here, I would argue that (1) this conduct should come under the catch-all "forces" in Section A; (2) unconsciousness from alcohol is equivalent to mental illness or unsoundness of mind under B(2); (3) this conduct against an unconscious person necessarily involves some amount of force under B(3). Apparently Oklahoma law didn't support those arguments. Section (B) modifies and defines Section (A), and Oklahoma law already defined force and "unsoundness of mind" in ways that exclude unconsciousness from drink. The problem is simple: Oklahoma's legislature crafted its rape statute to contemplate abuse of an unconscious person, but not its statute covering oral sexual contact. I doubt that reflected a judgment by the Oklahoma legislature; it more likely reflects negligence.

Ultimately today's outrage is a repeat of the outrage over a similar decision in Connecticut in 2012. That time, prosecutors charged the defendant under the wrong statute for rape of a mentally incapacitated person. Feel free to be outraged at the carelessness of legislatures and/or prosecutors. But are you outraged that a defendant can only be convicted of the things they are charged with? Are you outraged that a defendant can only be convicted (or adjudged delinquent) for doing things that the law prohibits, as opposed to things that are prohibited by social consensus? Do you want a society where you can be convicted based on social consensus, even in the absence of a law specifically prohibiting your conduct, in a state that still classifies oral sex as the "detestable and abominable crime against nature"?

Colloquially and morally, the defendant is a rapist. Under Oklahoma law, he's not. The problem is with the statute — so fix it. The problem isn't with our failure to convict people for things that aren't already illegal.

Updated to add: In the comments, Al points out that prosecutors could have charged sexual battery:

B. No person shall commit sexual battery on any other person. "Sexual battery" shall mean the intentional touching, mauling or feeling of the body or private parts of any person sixteen (16) years of age or older, in a lewd and lascivious manner:

1. Without the consent of that person;

That would be a 10-year maximum sentence instead of a 20-year maximum — not that it matters for a juvenile adjudication. But it looks like this is another case of prosecutors not reading statutes carefully. Thanks, Al.

Satire Is Satire Even When People Fall For It, Mr. Jarvis

For years I've been trying to figure out who made this point: all satire is a shared joke between the writer and the reader at the expense of a hypothetical third person — the dupe — who takes it literally. The existence of that third person is a specifically contemplated feature, not a bug.

This is so both as a matter of law and as a matter of art.

Yesterday Esquire ran a satirical column in the voice of Jeff Jarvis. It's not up at Esquire any more, but you can see it here. The satire — penned by Rurik Bradbury, long-time Twitter satirist of Jarvis — mocked the pretense and vapidity of modern internet-changes-everything blather. To my taste, the satirical nature is quite clear:

The Innovation Party will be phablet-first, and communicate only via push notifications to smartphones. The only deals it cuts will be with Apple and Google, not with special interests. We will integrate natively with iOS and Android, and spread the message using emojis and GIFs, rather than the earth-killing longform print mailers of yesteryear. This will give us direct access to netizens, so we can be more responsive than any political party in history.

But tastes differ. Jeff Jarvis thought it was not clear and not permissible:

WhereCanIOrderPopcorninBulk

Esquire subsequently altered the piece to make the satire more explain-the-joke-to-you explicit, then axed it completely without explanation. Both Esquire and Jarvis have their supporters and detractors, and Jarvis wrote an angry post expressing outrage that he continues to be the object of satire.

There are many pieces of this. One is legal. That piece is very easy.

Bradbury's Esquire satire is very clearly protected by the First Amendment. I wrote about a case frighteningly on point. Esquire previously did a satirical article with mock quotes from Joseph Farah of WorldNet Daily and author Jerome Corsi. They sued, claiming defamation. The United States Court of Appeal for the D.C. Circuit crushed their arguments. Remember: only things that could reasonably be understood as provably false statements of fact can be defamatory. Satire is not a statement of fact. In deciding whether something could reasonably be taken as an assertion of fact rather than satire, courts look to what an audience familiar with the publication and players would understand. Said the Court:

The article’s primary intended audience — that is, readers of “The Politics Blog” — would have been familiar with Esquire’s history of publishing
satirical stories, with recent topics ranging from Osama Bin Laden’s television-watching habits to “Sex Tips from Donald Rumsfeld.” See Findikyan Decl. Exs. 35–42. At the same time, followers of “The Politics Blog” were politically informed readers.

. . . .

With that baseline of knowledge, reasonable readers of “The Politics Blog” would recognize the prominent indicia of satire in the Warren article.

In other words, the notion that Jarvis is silly and his views mockable may be inside baseball, but the relevant question is whether readers familiar with that inside baseball would recognize it.1

The fact that some people — inattentive people or people unfamiliar with the subject matter — may take the satire literally does not stop it from being satire. It's expected, the Court explained:

But it is the nature of satire that not everyone “gets it” immediately. For example, when Daniel Defoe first published The Shortest Way with the Dissenters, an anonymous satirical pamphlet against religious persecution, it was initially welcomed by the church establishment Defoe sought to ridicule. See JAMES SUTHERLAND,ENGLISH SATIRE 83–84 (1958). Similarly, Benjamin Franklin’s “Speech of Miss Polly Baker,” a fictitious news story mocking New England’s harsh treatment of unwed mothers, was widely republished in both England and the United States as actual news. See MAX HALL, BENJAMIN FRANKLIN & POLLY BAKER:THE HISTORY OF A LITERARY DECEPTION 33–35, 87–88 (1960).

Again, the joke is not only at the expense of Jeff Jarvis. The joke is, in part, at the expense of people who read carelessly. The joke is "Jeff Jarvis is silly, and by God, so is our society." The root of all comedy is human fallibility, and this article is funny in part because even though it's on a site known for satire by a frequent writer of satire in the voice of a frequent target of satire using exaggerated satirical arguments some people will still be inattentive, uninformed, or simply dumb enough to fall for it. That's why Jarvis's defenders are flat-out wrong when they say silly things like "It's the knowledge that something is satire that makes it satire in the first place."

Legally, this is not a close call.

What about morally? Jarvis and his supporters suggest that it's unethical for journalists to run satirical pieces written in somebody's name. It's not a new argument. Meghan McCain freaked out over apt satire of her writing voice. Visitors here occasionally become indignant over satire. People may get upset because satire written in the target's own voice is so effective against both of its targets. It illuminates the silliness of the person it is aping, and the more people fall for it the more powerful the argument that the mockery is on target. It strikes at the heart of the pretense of internet denizens – that they are well-informed and understand what the hell is going on.

Could there be satire that is unethical because it is genuinely deceptive? I suppose so. (Hopefully not here.) But I think it would have to be a genuine attempt to deceive by a publication not known for satire — something where the publication should expect that even reasonable inquiry and thought would not reveal it. This is not such a case. Esquire is known for satire. Bradbury is know for satirizing Jarvis and Jarvis is known for being satirized. The text of the satire was, well, overtly satirical. And as Bradbury told me, "[T]he bio stated specifically that this person was "not @Jeffjarvis", and the author photo was wearing both a beer helmet and a Santa hat, in late April.""

I don't think ethics prohibit a magazine known for satire from engaging in satire. I don't think ethics prohibit magazines from ridicule, even if that ridicule is part of a pattern. I don't think ethics require satirists to pitch to the lowest possible common denominator, to make their satire ABC-at-8:00-PM obvious. Ethics doesn't require catering to carelessness or foolishness or ignorance. If anything, it's unethical for the media to encourage those bad traits by dumbing down the ancient, deadly, and noble art of satire. One of the Bad Things about the internet is that people foolishly fail to exercise critical thinking about things they find on it. I don't share an ethical viewpoint that indulges and even encourages that trend.

Satire is a matter of taste. If Esquire decided this wasn't to their taste after all, that's their right, although the sequence of events makes them look foolish. But if Esquire caved to explicit or implicit legal threats, or to feckless arguments about journalistic ethics that undermine the very notion of satire, then shame on them.

Germany's Libel Laws: A Threat To Democracy [Guest Post By Colin Cortbus]

Colin Cortbus is a student and freelance journalist – his freelance investigative work has appeared in the UK Daily Mirror, the UK Daily Star, and Channel 7 (Israel).

German Chancellor Angela Merkel has come under intense international scrutiny over authoritizing state attorneys to prosecute a TV comedian over a vulgar, satirical poem he performed lampooming Turkey’s brutal dictator Tayyip Recep Erdogan. But the issue goes far beyond Merkel’s cozying up to the tyrant in Ankara; Germany’s libel and anti-insult laws have long been a weapon of choice for those seeking to suppress the marketplace of ideas. Hitler himself, prior to assuming power, was also a vicious libel plaintiff. In Germany, you can even get into free speech trouble for “libeling” the dead!

The Boehmerman case and the wrong debate about free speech law

Whenever he is not busy having Kurds killed, imprisoning journalists, or denying the Armenian Genocide, Turkish strongman Erdogan is a sensitive, fragile snowflake, easily offended by the many people who laugh at his ridiculous and scary regime. Having Turkish citizens who purportedly compare him to Gollum from Lord of the Rings prosecuted apparently doesn’t satisfy his urges; Recently, Erdogan’s regime has attempted to muzzle the laughter in Germany to. It started off with calling in Germany’s Embassador to Turkey in late March after satire show Extra 3 on Germany’s state-owned TV channel NDR had run a song mocking Erdogan’s human rights record, saying “a journalist who writes anything that Erdogan doesn’t like, he’ll be in jail by tomorrow”. They had also suggested Erdogan’s vision of equal rights for women consisted of cops beating up female anti-government protesters as well as the men.

It was in the context of this row that another state TV comedian, Jan Boehmermann, dedicated his show to discussing the extent of the free speech rights guaranteed on paper by Article 5 of the German Basic Law. He highlighted that laws draw the limit of the permissible at a legal concept known as Smäh-Kritik, vilifying criticism. He said he would perform a poem named after the concept to exemplify that, and introduced it saying “what comes next would be forbidden in Germany”. Then he went on to read out a vulgar text hyperbolically accusing Erdogan, among many other things, of fellating with a “hundred sheep”, having a small penis, smelling worse than the fart of a pig and watching child porn as well as beating women. He concluded his poem saying, “this is what you can’t say in Germany”.

The rest is history. Erdogan complained about the poem under two separate German anti-insult laws, firstly the arcane Article 103 of the criminal code, banning “the insulting of foreign heads or institutions of state” (which requires authorization by the government for prosecution to occur) and then secondly filed a legal request for prosecution under the regular law banning insults against persons, Article 185 of the criminal code (which any person can use, without any special authorization). Merkel’s embattled government then issued the authorization for prosecution under Article 103, much to the surprise of press commentators. They had argued the second complaint was a “bridge” over politically hot waters that Erdogan had built for Merkel, allowing her to refuse to issue the controversial authorization under the arcane and unpopular Article 103, which even she herself has said she intends to repeal soon, but still ensuring criminal charges against comedian Boehmerman could proceed under a different law

The attack on Boehmerman’s speech rights is not the first time Article 103 has been used to suppress democratic speech at the behest of the powerful. In
the 1960s it has used so frequently to persecute pro-democracy movement refugees from Iran that itbecame known as the “Shah-article”. In the 1980s it was used tolegitimize police action against protests who held up a banner describing Pinochet’s murderous regime in Chile as a “gang of murderers”, a historically accurate statement. The court’s chilling justification: if police had not intervened to confiscate the banner, “the correct bilateral relations between Germany and Chile would have suffered to a not insignificant degree”. In 2003, the president of police in Potsdam, a suburb of Berlin, wanted to use to law to prosecute an Iraq Waropponent who installed a “Bush Fuck You” placard at his home in an upscale neighborhood close to the German capital. Bush hadn’t complained (so no prosecution went ahead), but well-to-do neighbors had not taken to the sign favorably. The threat of prosecution no doubt sent a chill down the war opponent’s spine, and put a smile on their face

Despite this, Boehmerman’s case also shows how Germany’s conversation about free speech is broken. Much of the critical public reaction has not been to defend Boehmerman’s right, per se, to engage in such satire, but rather has become an exercise in not-so productive group outrage against Article 103. Politicians have described the law as a “pre-democratic” remnant of an age where insulting kings was still seen as a major crime, highlighting that the law establishes much higher maximum penalties (5 years in jail) than the regular law against insults (one year in jail). The popular Focus Magazine prominently featured a bow-tie wearing constitutional law expert arguing that this violates the principle of equality before the law, making it incompatible with Germany’s Basic Law. The problem with this line of reasoning is that every moment spent discussing this redundant law is one not spent discussing the wider host of censorious, unnecessary libel laws that stifle free thought in Germany, including the very same Article 185 that could yet be used to prosecute Boehmermann. The Boehmerman case has already had a knock on effect, with a Berlin administrative court banning the reprinting of his poem for a planned demonstrationagainst “insulting goats” that free speech activists had intended to hold outside of the Turkish embassy, although the judges did not rule on the legality of his poem more widely.

Germany Anti-Insult and Libel Laws – Anti-Democratic and Stupid

Germany has a plethora of highly restrictive libel and anti-insult laws of the sort one would more expect to find in Putin’s Russia than Merkel’s supposedly tolerant Germany. Aside from the laws already mentioned, the rarely usedArticle 189 bans the “disparagement of the memory of the dead”, Article 188 establishes particularly high penalties for “smearing and defaming” a “person involved in political life” if the speech in question is connected to the person’s political activities and “makes their public work significantly harder”. Article 192 explicitly says that the truth of a statement does not preclude it from constituting an illegal, punishable form of expression if it is insulting in the context of the way the statement was made. Underlying these laws is the idea that people have “personality rights” (Persönlichkeitsrechte) that a democratic state is obliged to protect from being compromised by demeaning speech.

Much of this can be traced down to the haste and post-war compromise with which the Basic Law, (then Western-) Germany’s quasi-constitution was developed in the late 1940s after the fall of Hitler’s Nazi dictatorship. Article 5, its’ provision on free speech, reflects this perfectly. It states that everyone shall have a right to freedom of expression, information and art, without the existence of censorship, but then goes on to qualify this, making clear: “These rights shall find their limits in the provisions of general laws, in provisions for the protection of young persons, and in the right to personal honour”. Theodor Heuss, a deputy to the 1948 parliamentary council that drafted the Basic Law, later said Article 5’s limiting provisions were consciously vague and implied that the “right to personal honour” arose out of an egalitarian desire to ensure that the same protections against smears would not just be available to officials of the state (as had de facto been the case in Nazi Germany, where the dignity of dissidents and democrats had not been respected by the state), but to all people.

This ties in with the Basic Law’s wider rhetoric of the “inviolability of the dignity of man”, a vague and unspecific platitude that would no doubt have been acceptable to both socialists and conservatives in post-Hitler West Germany. The Basic Law was originally, as it itself stated, intended to be only a compromise placeholder until such a time as a reunified Germany could pass a new constitution. But, given that the Basic Law gradually became a powerful emotive symbol of a new, post-totalitarian sense of Germanness, there little chance of this happening, and Germans will remain stuck with its inadequate free speech protections.

But the historical lack of emphasis on true free speech still does not explain the reluctance of Germany’s current political, social and literary elites to
demand a long-overdue expansion of speech rights. An understanding of this must be found elsewhere. An opinion piece penned by the editor-in-chief of Berlin’s well-regarded, intellectual Berliner Zeitung exemplifies what many in Germany’s cultural elites think about the Boehmerman case. Peter Huth wrote “Merkel did everything right… Even if there is a guilty verdict, Boehmermann will easily be able to live with the fine”. It is unquestionably true that with a good (expensive) lawyer, waves of public support and a well-regarded professional background, no German TV presenter or big-league newspaper editor is likely to face jail or financially crippling fines for any insults he/she may throw at anyone. The almost certain knowledge that they themselves will never face such a predicament is exactly why many in Germany’s powerful cultural and political elites find it so difficult grasp the chilling, censoring effect Germany’s anti-insult laws can have on those less privileged financially, socially or professionally; Local bloggers, small town newspapers, court case defendants, dissident refugees and historical researchers who already live on the economic margins of society but are the lifeblood of public debate. To many of these people, even the threat of a time-consuming police investigation or state prosecution can be the determining factor in not pursuing a news story, not expressing their opinion or even not exercising their fundamental due process rights.

Far from the egalitarian impulse that supposedly led to the constitutional “right to personal honour”, in practice, Germany’s anti-insult laws give immense power to officials to threaten small-time critics and trouble-makers who hold inconvenient opinions with legal repercussions. In 2014, a local court in the Rhineland region of Germany imposed a 6 month jail sentence for “insults” on an elderly man who had spent years writing letters to officials complaining, allegedly in crude and sometimes sexist terms, of inefficiency, ineptitude and of alleged corruption. Meanwhile, In the Schwarzwald region, an unemployed man who was dependent on social assistance received a 3 month jail sentence for using an insulting word in a telephone conversation with a local government official by whom he was told that more paperwork was needed before a permit he had requested could be issued. Last year, Germany’s Constitutional Court overturned a guilty verdictissued by a local court under the anti-insults laws against a woman who encountered police while wearing a “fuck cps” sticker. The local court had characterized this as an expression impacting the “social worth of the affected persons in their official capacity and reducing it”. In the 1990s, the Constitutional Court famously overturned a similar conviction against someone who had displayed a banner saying in (bad) English “ a soldier is a murder [sic]”, although the decision appears to be partially based on the reasoning that ‘a soldier’ did not specify troops from any specific national army or regiment in particular. Nonetheless, a regional higher court found that shouting “ACAB” while pointing at an individual police officer is an illegal and specific insult.

In 2008, a small-time hotel operator who had been detained on charges of unlicensed commerce, was visited by a police inspector in jail who informed him that prosecutors had just obtained and fulfilled a search warrant for his private apartment. The hotel operator protested vigorously to the police
inspector. He said that his lawyer should have been present during the search, and called the state prosecutor who had requested the search warrant a “breaker of the law whose days in the judicial system are counted”. He was later investigated, prosecuted and convicted by a county court of “disparaging criticism” and “defamation” towards the state prosecutor for saying this, as well as of other charges unrelated to those comments, but an appeals court eventually overturned the verdict in 2011. Criminal charges of “smearing” (Verleumdung) were also used by the state to prosecute a victim of child sexual abuse who has forced to work in an illegal child brothel in the 1990s. Mandy K. had claimed in an interview with prosecutors investigating the case and publically, that that a senior judge had been among those visiting the brothel as a client. Her case sparked a national debate about allegations of judicial corruption as well as police attitudes to victims of sexual assault, and there is no record of her being convicted of the charges. But even being investigated by police and taken to court is a time-consuming, costly experience that discourages critical expression in the face of officialdom.

Germany’s libel laws also have an unfortunate history of stifling the discussion of vital political topics. One of contemporary Germany’s most prominent far-left politicians, Gregor Gysi, has, since the 1990s, faced allegations of having collaborated with communist Eastern Germany’s feared Stasi ‘state security’ agency to inform on his clients, some of whom were dissidents, while he was a solicitor in Eastern Germany prior to re-unification. He vehemently denies the allegations, which have never been proven, and became known as the “red law-suit monger” in 1990s over his successful efforts to sue those making such allegations for defamation. Despite the fact that a parliamentary committee of inquiry had deemed the allegations of informal collaboration with state security to be credible and had accused Gysi of being included in an effort to bring about the
“as-effective-as-possible suppression of the democratic opposition in the GDR [Eastern Germany]”, Gysi was able to use to the judicial system to obtain an
injunction under libel law banning former Eastern German dissident Freya Klier from repeating comments suggesting that Gysi had ‘not represented his clients but had instead spied on them and sought to control them together with his comrades’. Prestigious news-magazine Der Spiegel characterized the efforts to silence (in effect, if not necessarily intent) the debate using the judicial system as ultimately unsuccessful. But it also described the consequences of Gysi’s lawsuits for free expression at the time in no uncertain terms; “regional newspapers reacted in a scared manner, in some editors offices one preferred to think twice about whether one should report about Gysi and the Stasi- and then didn’t”.

Even something as removed from day-to-day politics as historical research has come under attack under the absurd Article 188. In 2000, a Bavarian court issued an injunction banning a newspaper from making claims in a local history article that a deceased World-War-Two-era local figure had been “War-criminal who was sentenced to death”. Reviewing the historical record, the court said that the deceased man had only been an “alleged war criminal”, not a “Nazi-criminal”, and that the death-sentence-carrying war crime conviction had been “only by Czech Courts in 1945”, whichaccording to the court hadn’t settled the matter of whether he was actually one. Penalties for contravention of the injunction were set at up to one month imprisonment or a not insubstantial 100000 German Marks fine. Other historical researchers have also found their work scrutinized by Article 188 complaints submitted by angry relatives of the long-dead, although usually with less success. In 2013, a Northern German court ruled that a historical case study calling the notorious First World War German colonial military commander Lettow-Vorbeck a war criminal in regards to his activities in South-West Africa at the time did not constitute a crime, because the historical study was constitutionally protected pursuant to freedom of science. Similarly, in the 1960s, a German appeals court over-turned a five month prison sentence
that had been imposed under Article 188 on a journalist who had written a historical piece questioning whether Nazi diplomat Ernst Von Rath, famously assassinated in 1938 in Paris, had been engaged in homosexual activities and had been killed in a sexual dispute. Such pointless legal action not only wastes court time, but is also a clear deterrent to research on important historical issues. If you are on a tight budget or timeline, and receive a legal threat from an incensed relative, wouldn’t it seem much easier to avoid all the legal time-wasting by leaving out that sentence about the war-crimes committed by their deceased ancestor?

Of course, when vague laws exist, is there nothing to stop them from being used counter to the way lawmakers intended. Modern German Neo-Nazis have developed considerable expertise in attempting to use anti-insult laws and libel complaints to hassle journalists and anti-racist campaigners, href="http://www.spiegel.de/spiegel/print/d-13683058.html">a strategy they themselves called “penetrant legalism”. EvenHitler, prior to taking power in 1933, himself filed a vexatious libel lawsuit in 1930 against Karl Rabe,
the editor of the pro-democratic Munich Telegram newspaper. Rabe had been responsible for an article suggesting that Hitler had attempted to bully and threaten Crown-Prince Rupert of Bavaria in case he publically expressed criticism of a ballot measure Hitler has advocating for. Yes, that’s correct, a soon-to-be dictator commanding an army of thuggish, Sturm-Abteilung death squads had his thin skin offended by an editor who documented how he had acted like school-ground bully towards an ageing aristocrat. And the very democratic, judicial institutions he was trying to destroy humoured him by allowing him to bring his vexatious and censorious suit.

Meanwhile, Germany’s cultural and political elites love pointing the finger at supposed violations of free speech and press freedom elsewhere in the world, particularly in neighboring Poland. There, their criticisms of the current Law & Justice Party government were perceived to be so out-of-touch that they attracted furious condemnation even from one of the country’s main opposition leaders, the maverick Pawel Kukiz. He urged them to look “more closely at democracy in your own country”. Perhaps they should take his wise words to heart and start by throwing out Germany’s useless, repressive anti-insult laws. All of them.