Is the First Amendment safe from Donald Trump?

cnn trumpI write this as someone who was willing to vote for Trump. This gives me great pause….

Donald Trump has said a lot of strange things — some funny, some creepy, but none scarier than what he said on Friday: that if he is elected president, he will "open up our libel laws" to make it easier to sue the media and "win lots of money." No matter what you may think about his other policy ideas, if he keeps this promise, we won't be able to effectively express dissent against anything else he might want to do. We can fight any bad policy if we have a robust First Amendment.

Read the rest on CNN.

#FreeStacy — But From What? In Defense of Free Speech Legalism

You should regard anything I say about Robert Stacy McCain with skepticism, because I hate him.

My loathing for him is sincere and entire. My revulsion for him is both conscious and subconscious, like a Donald Trump perforated with asymmetrical holes

That said, I don't regret — not even a little — speaking out for his First Amendment rights in the face of vexatious litigation by unrepentant domestic terrorists and their lickspittles. That's the deal in America, or is supposed to be. We defend the rights of people we hate. We defend the First Amendment from frivolous, censorious litigation — even in favor of unserious hypocrites who advocate frivolous censorious litigation themselves. My only regret about arguing for Robert Stacy McCain's free speech rights is if I passed up any opportunity to say that I feel for him a transport of uncordiality.

Over the last 24 hours the rightward side of Twitter has been in an uproar — captured by the #FreeStacy hashtag — about Twitter's suspension of McCain's main account, @rsmccain. Many see it as a trend in Twitter disproportionately and arbitrarily disciplining conservative voices, as Marc argued last month. Though I've questioned that proposition, it's grown considerably more persuasive since Twitter appointed a "Trust and Safety Council" that appears calculated to have a narrow view of legitimate speech and a broad view of "harassment" (at least insofar as it is uttered by the wrong people.)

I don't know what McCain did (or is alleged to have done) to be suspended, and as far as I can tell nobody else does either. I've seen him say some pretty despicable things, either sincerely or mastubatorilly, so I'm not presuming that the suspension was based on nothing. Nor do I presume that any report of his conduct was honest, nor that any analysis of his actions was rational or principled.

So do I shout #FreeStacy?

Sort of.

When I say #FreeStacy, I mean "Twitter, you've providing an increasingly shitty product, I'm expecting to be banned from it arbitrarily soon, and I've been thinking for some time about where to focus social media attention instead." Or "Twitter, before I thought this was mostly about low-level employees acting on their own biases. But I'm increasingly convinced by the argument that you've decided to offer a product aimed at a specific political group." Or "Twitter, you sell yourself as separating harassment from free speech, but you don't deliver."

In other words, rather than indulging in cries that Twitter is engaged in fascism, or book-burning, or Nazism, or totalitarianism (all of which I've seen said today), I'm saying that Twitter is engaging in a mix of private speech and product development that I don't like, and demonstrating that its marketing patter about free expression has traveled beyond the realm of acceptable sales puffery into the noisome Kingdom of Bullshit.

Some people say this is pedantic. Some currently popular ideas are premised on blurring the distinction between state action and private action against speech: "cultural libertarianism," "thick liberty," "free speech values."

They're wrong.

The right to free speech is America's most important right because it's how we identify and defend all rights. But you can't defend a right you don't understand or can't define. Distorting or blurring the definition of a right undermines it. In short: free speech legalism matters.

You think that Twitter has a civic or moral obligation to uphold "values of free speech"? Fine. How do you distinguish that from people arguing that Twitter has a moral and civic obligation to defend people from offense? If you say that Twitter ought to uphold "American values" of diversity of views and the freedom to utter unpopular views, how do you respond to the argument that Twitter ought to uphold "American values" of equality and "decency"?

To quote a noted food critic quoting a Roman emperor, of each particular thing ask: what is it in itself? What is its nature? What does a private business do? It makes money and advances the agendas of its owners and/or leaders. They act according to two conservative principles: caveat emptor and there ain't no such thing as a free lunch.

Blurring the classification of things leads to exactly the sort of nonsense that Robert Stacy McCain normally rails against. Take a university. Is it a thing that teaches students? Or is it a place that empowers social justice? Is it a place for young adults, or is it a place for children in need of protection from mean ideas? Or take it up a few levels: do governments exist to impose their will upon us, or do they exist for us to impose our will upon them?

I classify Twitter's action as bad customer service and as private speech I don't like because of my conservative views. Those views include the following: private companies (which are individuals organized to do things as efficiently and safely as possible) have a right to free speech and free association. Corporations are people! They don't lose those rights because they get too big or because someone thinks they look like public entities if you squint. It's okay for corporations to sell products, or engage in speech, that people hate. People and corporations don't owe you anything: not a free lunch, not a free platform. You're responsible for reading the contracts you sign, physically or digitally. Whether or not you support anti-discrimination laws governing private entities, they can't be reconciled completely with free speech and free association rights. Or, put in law-professor-speech, anti-discrimination values and free speech values are in tension.

At least I thought those were conservative views. I mean, how can you argue that a bakery shouldn't have to make a gay marriage cake, but Twitter should have to offer a platform to someone they think (not unreasonably) is a total douche?

So, will I say #FreeStacy? Absolutely! For every hour McCain is gone, some feminist remains unfrothed-at. For every absent moment, there's a dead black kid whose Facebook page hasn't been thoroughly vetted. So #FreeStacy. By which I mean: free him from your foolish marketing decision to adopt a suspension system that predictably leads to arbitrary suspensions, because it's bad business and I'm a customer who doesn't like it. Free him by repenting your ill-considered and destructive expression in the form of a "Trust and Safety Council" that looks like a bad SNL skit. Free him from a system that — whether it's a marketing tool or a sincere gesture of opposition to harassment — will lead inevitably to button-mashing abuse of your report systems and endless (and unprofitable) internecine warfare amongst your very worst customers (or products, whatever). While you're at it, if you can, free him and his supporters from the Bernie-Sanderseque delusion implied by their rhetoric: that they have a right to speak on your platform that supersedes your right to run it the way you want. If you convince enough of them, maybe one will invent a good alternative I can seek out the day you suspend me.

Nevada Caucus Shenanigans: Why Mischievous GOP Voters could participate in Saturday’s Democratic Caucus

Nevada voters must register their party affiliation before caucusing – Democrats on Feb. 20, and Republicans on Feb. 23. Nothing about this is unusual for a closed caucus system, but there is one interesting blip.

The Democrats allow same-day registration for their caucuses tomorrow, but Republicans closed their registration on Feb. 13. Therefore, any Republican who registered by Feb. 13 can show up at their caucus tomorrow, register as a Democrat, but still also participate in the Republican caucus on the 23rd. How? Well, the party switch would not show up on the GOP caucus rolls. Clark County Voter Registrar Joe Gloria confirmed the possibility.

Nevada’s caucus system has not been challenged, but other states have faced legal challenges to their primaries in the past. For example, in 1996, a voter referendum changed California primary rules to create “the blanket primary.” Under this system, the ballot listed all the candidates, and voters were able to choose a Republican in one race and a Democrat in another. The person with the most votes from each party on the ballot advanced to the general election.

However, in 2000, the Supreme Court found this system violated a political party’s freedom of association rights. California subsequently got rid of blanket primaries. In 2002, The U.S. District Court in Atlanta threw out a case challenging Georgia’s open primary system, holding that open primaries are legal because they require voters to choose candidates from only one particular party for all races. Even the smaller parties have challenged primary elections. The Libertarian and Green parties feel California’s top two primary system keeps their parties’ members from ever being named on the general election ballot. Residents in New Jersey even argued the state’s closed primaries (similar to Nevada) unconstitutionally disadvantage those who vote independent.

Would crossover voting like this even have a major effect on primary and caucus outcomes? Primary crossover is rare. California allowed crossover voting in the 90s, and political scientists found it had little to no influence on election outcomes.

Of course, losing candidates have claimed in the past that crossover voting caused their defeat. I should note, however, that there is no evidence to support that crossover voting leads to deliberate sabotage. Even so, Georgia Democratic Rep. Cynthia McKinney, who suffered a 16-pt loss against her primary opponent, Democrat Denise Majette, claimed that thousands of Republicans voted for Majette.

And in 2008, Rush Limbaugh prompted Republicans to launch “Operation Chaos” Although the conservative talk show host merely wanted to cause a shit show in the never-ending Obama-Clinton Democratic presidential primary, the effect was debatable. This happened again in 2012, when liberal blog Daily Kos attempted “Operation Hilarity,” urging Democratic readers to vote for Republican candidate Rick Santorum in order to complicate the GOP primary for the eventual nominee. However, Santorum’s campaign actually contacted Michigan Democrats, asking them to vote in the Republican primary to make it more difficult for Romney. Although 9% of Michigan GOP primary voters were Dems, and over half voted for Santorum, Romney still won the primary and, later, his party’s nomination.

However, in Mississippi’s 2012 primary election, anyone who voted Democrat in the initial primary was ineligible to vote in the Republican primary.

It makes sense for Nevada to institute this rule (especially if Republicans are not offering same-day registration to attempt to even the score).

The moral of the story is that yes, Republicans can vote in the Democratic caucus on Saturday. To what end? It seems that Republicans hate Hillary more than they are afraid of Bernie, so the chatter out here in the desert is that Republican operatives are going to show up to caucus with a fake “bern” on them. On the other hand, the latest Quinnipiac poll shows that Bernie is more electable than any current Republican candidate.

I was a registered Republican until about a week ago. I’m caucusing for Bernie tomorrow. Depending on how slow the Republicans are to update my information, I might be able to also pull off caucusing for Trump as well (yeah, Bernie is my first choice, and Trump is my second choice). But, if do, I would only do so to watch the shit-show. While it might be legal to double-caucus, something about it doesn’t pass the smell test for me.

But I’ll be damned if I’m going to give up the opportunity to watch something as entertaining as a Republican caucus with the current field of candidates.

Popehat Signal: Urologist Threatens Penis-Enhancement Forum

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

Popehat Signal courtesy of Nigel Lew. Thanks, Nigel!

It's time for the Popehat Signal, the feature in which we seek pro bono help for an online writer threatened with frivolous and censorious litigation.

Thundersplace.org is a forum devoted to discussing penis enhancement of various sorts. There's a forum for everything on the internet, you know.

Last April a user wrote a post describing a harrowing experience with surgical penis enhancement. How harrowing? I read it and I cringed so much my cringer broke. I am completely without cringe now. I can watch primary debates without any change to my affect.

The anonymous user claimed to be a patient of Dr. James Elist, a Beverly Hills urologist. Suffice it to say that this was not a positive consumer review.

This, my friends, is America. So Dr. Elist hired an attorney, Elliott Benjamin of Parker Mills LLP in Los Angeles. Mr. Benjamin sent a legal threat to both thundersplace.org and, incredibly, Cloudflare. Mr. Benjamin asserts that thunderspace.org has an obligation to verify the accuracy of statements by forum users:

You have permitted these inaccurate and negative postings to appear on the Website without seeking to verify the veracity of their contents.

Mr. Benjamin demands the usual suspects:

Consequently, on behalf of our client, we hereby demand that (1) you immediately remove the negative content posted by your member "txhog", together with all related threads and postings, from the Website, (2) thundersplace.org immediately cease and desist from any further derogatory postings of any kind about Dr. Elist, (3) you immediately provide us with the name and contact information of the user posting such disparaging comments, and (4) you post an announcement in a conspicuous place on the Website acknowledging that the defamatory statements have been removed due to your inability to verify their accuracy. Failure to comply with the foregoing demands will leave our client with no alternative but to take action and seek all legal remedies available to him.

Mr. Benjamin's letter on behalf of Dr. Elist bears several prominent signs of aggressive bogosity. First, the letter utterly fails to specify what statements of fact in the forum post are false. You know my mantra: vagueness in defamation threats is a hallmark of meritless thuggery.

Second, and even more importantly, Mr. Benjamin's bumptious threat ignores the law governing the situation. His premise — that the forum is obligated to police user comments and verify their accuracy — is absolutely wrong as a matter of law. Under Section 230 of the Communications Decency Act of 1996, thundersplace.org is absolutely not liable for defamation for things that its forum users write; its owners are only liable for things they write themselves. This is not a close call. Nor is it an obscure or difficult point of law; it is the single most relevant, obvious, and dispositive legal issue concerning Mr. Benjamin's threat.

As always, such a threat raises questions. Did Mr. Benjamin send a legal threat whilst completely ignorant of the law governing it? Or did he know the law and just hope that he could dishonestly bully someone who didn't? For that matter, did Mr. Benjamin advise his client Dr. Elist of the Streisand Effect — the principle of internet culture under which his threat (all the more so because of its transparently feckless nature) would naturally draw several orders of magnitude more eyes to the anonymous complaint on the forum? I wrote Mr. Benjamin to ask, but received no response.

Regrettably, our broken legal system allows litigants and lawyers to inflict massive expense, stress, and violations of rights upon people whether they act from ignorance or mere thuggery or both. California has a strong anti-SLAPP statute, and thundersplace.org stands an excellent chance of prevailing on an anti-SLAPP motion and recovering attorney fees if Dr. Elist and Mr. Benjamin proceed on their meritless theory. But thundersplace.org — which does not make its owners much money — can't afford to hire a California attorney.

Can you help? Can you look past the somewhat snigger-worthy circumstances and assist an American in vindicating their constitutional and statutory rights? Our system is broken, and our rights are therefore too often merely hypothetical. But every time someone like you stands up for someone who can't afford legal assistance, our rights become a little less hypothetical and a little more actual. Every time a lawyer agrees to stand up against a patently frivolous claim like this one, it becomes a little harder to bully people through feckless threats. Every time a lawyer steps in and a threatener slinks away, a few more threats are deterred. The robustness of our freedom doesn't just depend on the big cases, the Cohen v. California or Brandenburg v. Ohio. It depends upon lawyers willing to contribute a few hours to making rights a reality. Will you help? Please consider it.

Updated With Awesomeness: A response already! David Casey is a repeat signal-responder — a few years ago he was instrumental to the resolution of a bogus dental threat. Now David Casey and his partner Brian Lynch have stepped up to offer assistance to the forum targeted here. They deserve thanks. You may not be the target of this threat, but when lawyers like David and Brian work pro bono, they are defending everyone's rights. Thanks!

Milroad Trkulja Is Not A Gangster; Stuart Gibson Is, I Suppose, A Lawyer

These days it's not easy for a legal threat to distinguish itself. There are so many of them, and it's common from them to be bumptious and ignorant.

That's why I have to tip my hat to Stuart Gibson, an attorney at the Australian firm Mills Oakley. He has risen above the pack.

Mr. Gibson charges heedlessly into a crowded subgenre: threatening people for merely talking about you. The genesis of his bluster is a 2012 post at Techdirt discussing an Australian court victory against Google by one Milroad Trkluja, who was displeased that Google searches of his name brought up pictures of an underworld figure. That's not so bad; Googling my name brings up pictures of Jabba the Hutt cosplay. Anyway, Techdirt's article criticized the decision but made it perfectly clear that Mr. Trkulja was not, in fact, a gangster, and that his image only got connected with a gangster because he had the misfortune to be an innocent bystander in a shooting.

More than three years later, Trkulja sent Techdirt and Google a bizarrely entertaining legal threat complaining about a comment on the 2012 story that suggested that he was the sort of "gangster" who uses courts rather than guns. Trkulja demanded money, the deletion of the offending comment and anything ever written about him, and to block Techdirt. This was amusing and noteworthy; it's exactly the sort of flailing threat Techdirt writes about all the time.

Enter Mills Oakley attorney Stuart Gibson. He sent Techdirt a threat that, while much shorter and less floridly pro-se nutty than Trukulja's, was in its own way just as ridiculous.

This is the rotten core of it:

The matter that you have published conveys false and defamatory meanings including (but not limited to) the following:
Our client is a gangster;

That our client by virtue of his legal claims is incompetent and unfit to be a litigant;

That our client by virtue of his legal claims is a ridiculous litigant;

That our client is a criminal and a participant in organised crime;

That our client is unfit to be a litigant

None of these meanings is defensible. Our client is not a criminal and has never been a gangster nor associated with such persons. Accordingly there is no factual basis for the imputations published.

This is entertainingly preposterous. Techdirt never suggested Trkulja is a gangster; a commenter jokingly suggested he is a litigation gangster. Techdirt's suggestion that Trkulja's legal threat is ridiculous (which Gibson spins as "unfit to be a litigant") is a classic case of opinion based on disclosed facts — the fact in this case being Trkulja's nutty legal threat.

Gibson finishes with bluster about how his firm has enforced Australian judgments against other companies, about how American law will not protect Techdirt, about how Techdirt's free speech defense is "absolute nonsense," and so forth.

Gibson is, of course, utterly full of shit. This is exactly the sort of bullying threat that the SPEECH Act, 28 U.S.C. section 41202, is designed to render impotent. Australia is beautiful and its people are lovely and its laws have many things to recommend them but, with respect to protection of free speech, it is a jurisprudential shithole. Congress passed the SPEECH Act to ensure that law-thugs like Mr. Gibson could not silence speech by obtaining defamation judgments under legal regimes that lack adequate protections for free speech. Mr. Gibson is free to get an Australian judgment against Techdirt — indeed, Australian courts are popular with libel tourists and folks with ambitions to control speech worldwide. But unless Techdirt has assets in Australia, that judgment will be worthless.

Under the SPEECH Act, American courts won't recognize and enforce foreign defamation judgments unless the party seeking to enforce them carries the burden of proving that (1) the foreign court's exercise of personal jurisdiction over the defendant satisfied American concepts of due process; (2) the foreign court's ruling complied with Section 230 of the Communications Decency Act of 1996, which says that web sites can't be held liable for defamation for comments left by third parties; and (3) either the foreign court offers as much free speech protection as American courts, or American courts would have reached the same result on the defamation claim. Stuart Gibson's threats on behalf of Mr. Trkulja fail all three of those tests. Australia has no plausible personal jurisdiction claim over Techdirt; Gibson and Trkulja are trying to hold Techdirt responsible for a comment left by a third party; and Trkulja's and Gibson's silly claims would never stand up to First Amendment scrutiny. Among other things, Australia apparently treats truth as a defense, requiring defamation defendants to prove that their statements were true, rather than requiring the plaintiff to prove that they were false. That, standing alone, is enough to fail the SPEECH Act test. Trout Point Lodge, Ltd. v. Handshoe, 729 F.3d 481, 489 (5th Cir. 2013) (Canadian judgment was not enforceable under SPEECH Act because, among other things, it placed burden of proving truth on defendant). Moreover, Mr. Gibson's suggestion that Techdirt can't make fun of Trkulja for writing a very silly threat is sheer idiocy, and I suspect would be even under Australian law.

One can imagine why Mr. Trkulja would act this way — he's an angry litigant, not an attorney. But why would Stuart Gibson, who appears to be a real-life lawyer at a reputable law firm, act this way?

There are several possibilities. One is that Stuart Gibson is willfully ignorant of relevant American law. This theory has some appeal, especially when you consider that this is the entirety of his analysis of the SPEECH Act in his threat to Techdirt:

You are not protected by the Speech Act.

Another possibility is that Stuart Gibson knows the relevant law but is hoping that Techdirt doesn't — that he hopes that Techdirt is ignorant or easily intimidated enough to yield to legally meritless demands. This merely demonstrates another form of willful ignorance; the briefest investigation of Techdirt's history would reveal that it stands up to stupid legal threats all the time, and in fact publicly mocks them. If this is the case, then Gibson has failed to follow one of the core rules of writing an effective and non-own-foot-shooty takedown letter: he didn't investigate his target.

A third possibility is that Stuart Gibson is a hotheaded buffoon incapable — whatever he knows or doesn't know — of maintaining communications discipline. This explanation, too, has a certain appeal. I wrote Mr. Gibson seeking comment and some of his responses suggested a failure of self-control:

Ken
What you can say is that I have challenged Mike to accept Service of Proceedings and to espouse his theories in Court here.I have been trying to effect Service on him.

We are at this time trying to serve him/it.
I do not think it understands Australian Defamation Law.
We have no Free Speech law in this country.

Ken
What are you doing writing for this trashsite

And so forth.1

There is a type of gormless lawyer who becomes incensed when his or her idiotic demands are not met with immediate compliance; Mr. Gibson appears to be such a buffoon.

Finally, it's possible that Mr. Gibson is actually very clever and is just setting this matter up for Mr. Trkulja for another Australian lawsuit against Google seeking damages for the existence of websites that do not fluff him. Lord knows such train wrecks are possible there.

Mr. Gibson and Mr. Trkulja perform useful service: they illustrate exactly why Congress was right to pass the SPEECH Act, and exactly why we should be thankful for America's unusually broad and robust defense of free speech. Do you want people like Stuart Gibson dictating what you can say and whom you may ridicule? After all, Mr. Gibson is the sort of lawyer who says "we have no Free Speech law in this country" — and is happy about it, because it allows him to act like . . . well, like a gangster.

Fair Use and Cleaned Up Batman Porn

Holy rusty trombone Batman!  They took out all the sex scenes!

Holy rusty trombone Batman! They took out all the sex scenes!

For those who have ever had dirty thoughts about their favorite movie character, chances are there’s a porn parody to make all their naughty Hollywood dreams come true. Come on, you don't have some version of "Anna" from Frozen in your spank bank? Whatever… Princess Leia… Teletubbies? Mr. Rogers? Don't make me keep going. ADMIT IT!

Well, anyway, the porn industry leaves no market un-served when it comes to Rule 34.

We're talking about actual plot-driven pornos with feature scripts, long set hours, and highly-paid actors and actresses. These porn parodies are produced by some of the most popular porn production companies and (I think) are protected under the fair use doctrine. There are rational arguments to the contrary, but thus far, I am not aware of any major movie studio that has brought a copyright infringement claim against a porn parody.

But, bizarrely enough, someone is has reversed the polarity on the batteries in this particular gyrating bead-filled sex toy by taking porn parodies, and editing out all the sex scenes, so what you have left is a porn parody without the porn.

Yes, Really.

Which begs the question, "Is a clean version of Batman XXX: A Porn Parody fair use?"

I think not.

In Clean Flicks of Colorado v. Soderbergh, Clean Flicks took commercial films and edited out the “sex, nudity, profanity, and gory violence” in original Hollywood movies, and created new tapes of the edited versions. The newly edited versions were then sold or rented to their customers. The movie studios claimed that these "clean" versions were copyright infringement.

In response to the studios’ counterclaim, Clean Flicks asserted they were “fair use” of the studios’ copyrighted works.

Section 107 of the Copyright Act provides “fair use” of a copyrighted work, such as reproducing the work for the purpose of criticism, comment, news reporting, teaching, scholarship, or research is not copyright infringement.

In evaluating whether a particular use is fair, we look to 17 U.S.C. § 107:

Notwithstanding the provisions of sections 106 and 106A, the fair use of a copyrighted work, including such use by reproduction in copies or phonorecords or by any other means specified by that section, for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright. In determining whether the use made of a work in any particular case is a fair use the factors to be considered shall include—

(1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;
(2) the nature of the copyrighted work;
(3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
(4) the effect of the use upon the potential market for or value of the copyrighted work.

With regard to the first factor, Clean Flicks argued it was merely criticizing the objectionable content commonly found in current movies by providing more socially acceptable alternatives. The Court deemed this argument was “inconsequential to copyright law” and held it was not the Court’s job to “determine the social value of copyrighted works.” The Court then considered whether Clean Flicks’ use could be considered “transformative,” meaning whether the use “adds something new, with a further purpose or different character, altering the first with new expression, meaning, or message.” The work was not transformative because Clean Flicks added nothing new to the movies and merely deleted scenes and dialogue from them. The use was also for commercial gain, and the Court consequently concluded the first and second factors weighed in favor of the studios.

Based on the Clean Flicks case, I think that merely deleting scenes from a copyrighted film is not transformative, because there is no new expression, meaning, or message in the Batman XXX sans the XXX. I usually explain it like this — you get copyright by breathing life into something with your creative efforts. If you make new life using other people's works, then that is probably fair use. But, this doesn't seem to pass my "God blowing life into dust" test.

Looking at the quantitative and qualitative amount of the copyrighted material used, also favored the studios in the Clean Flicks case because the copies were almost identical to the originals, and used the entire original – except the naughty bits.

With regard to the most important factor in the fair use analysis, the effect on the market for the original, Clean Flicks trotted out the common infringer mantra, "but we're helping you!" Clean Flicks argued that their infringement actually benefited the studios because Clean Flicks purchased a copy of the original work for each edited copy made, and consumers who otherwise would not have purchased the original films were purchasing the edited versions.

The Court stated, “The argument . . . ignores the intrinsic value of the right to control the content of the copyrighted work in the essence of the law of copyright. Whether these films should be edited in a manner that would make them acceptable to more of the public . . . is a question of what audience the copyright owner wants to reach.” Ultimately, the Court held that public distribution of edited versions of the studios’ films for the purpose of eliminating objectionable content did not constitute fair use.

In our porn parody scenario, the infringement seems even more clear. In Clean Flicks, at least they were buying a film, thus not depriving the copyright owner of a sale. However, in this situation, someone bought the video and now is distributing it for free – with the sex scenes taken out.

Who would want to watch a porn movie with no porn in it, you ask? Well, the original Batman XXX is actually a pretty great movie — playing up the 1960s campiness of the original Batman series. Sort of like how Tina Fey is actually a better Sarah Palin than the original Sarah, the Batman XXX is a refined, superior, interpretation of the original. And then there's the bang scenes.

But, Youtube doesn't allow bang scenes… so, here's the non-fappable version… at least until someone DMCAs it.

PORN! PORN! PORN! WEB PAGES OF DEATH!

From Pages of Death 1962

From Pages of Death 1962

And round and round the censorship wheel goes.

Utah State Senator Todd Weiler is just the latest to try and shape the marketplace of ideas to his own superstitious views of morality. Weiler proposed S.C.R. 9, seeking to have pornography declared a public health hazard. The resolution is hilarious – or would be, if it did not take aim at our most important civil liberties, in the name of promoting a narrow view of morality. (A favorite target of mine)

This resolution:
` recognizes that pornography is a public health hazard leading to a broad spectrum of individual and public health impacts and societal harms; and
` recognizes the need for education, prevention, research, and policy change at the community and societal level in order to address the pornography epidemic that is harming the citizens of Utah and the nation.

Pause for a moment as you recall that Utahns consume more online pornography than any other Americans. (source) After the laugh track plays, you might want to be just a little concerned.

Weiler's theories are not exactly novel. In the late 1800s, Anthony Comstock convinced Congress to pass an Act for the "Suppression of Trade in, and Circulation of, Obscene Literature and Articles of Immoral Use". This later came to be called "The Comstock Law." Comstock devoted his life to defending the world from the plague of “immorality,” from contraceptives to works of art. Comstock went after all forms of sexual education, nude paintings by French modern artists, and even masterpieces like George Bernard Shaw’s play "Mrs. Warren’s Profession" and James Joyce's Ulysses. Before we laugh at the memory of the uptight Victorian moralizer, we should remember that Comstock boasted that he had convicted more than 3,000 people and destroyed “160 tons of obscene literature.” 3,000 lives ruined because it chafed someone’s narrow view of “morality.”

The Comstock Laws began to crumble as the light of the First Amendment began to shine on them. In a landmark decision, United States v. One Book Called "Ulysses," judge Woolsey wrote "If one does not wish to associate with such folk as Joyce describes, that is one’s own choice. In order to avoid indirect contact with them one may not wish to read ‘Ulysses’; that is quite understandable.”

Dickhead

Dickhead

Unfortunately, this did not exorcise Comstock's ghost. He continued to haunt freedom of expression – with anti-pornography propaganda becoming the stuff of today's comedy. The Oregon Historical Society just uncovered a campy Reefer Madness – style video, "Pages of Death," telling the fantastic tale of Paul Halliday, who “hung out reading pornography at Baker’s Variety Store until he couldn’t stand it any longer and murdered a girl in a whipped up frenzy of smut inspired rage” (source) It ends with a call to action, imploring parents that the next victim of a sex-crazed pornography consumer could be their little girl.

Clearly Comstock and "Pages of Death" peek at us from behind "conservative" positions. But, the very theories that they espoused came back, yet again, in the 1980s, when feminist academics began to ironically resurrect the Comstock laws. I say “ironically” because the Comstock laws were used not only to punish smut, but to punish distribution of intormation about birth control, abortion, and prevention of sexually transmitted diseases.

But with no sense of irony, the Left picked up the torch of the Right and in Indianapolis, they passed a law that said that the mere existence of pornography (as they defined it) was a civil rights violation. Fortunately, the First Amendment did not permit these laws to remain on the books, at least not in the United States. In American Booksellers v. Hudnut, a court threw them out as clearly content-based restrictions on First Amendment protected content, writing "the First Amendment means that government has no power to restrict expression because of its message [or] its ideas."

When John Ashcroft came into office, his justice department was tasked with "cleaning up" pornography, and it dutifully complied — prosecuting, and jailing, Americans for no worse crime than producing movies that the government did not like. The crime was "obscenity," which is the only crime you can commit without your conduct being illegal. All books and films are presumptively First Amendment protected. That protection is only stripped away if a jury watches the film and determines that it appeals to the prurient interest, that it describes sex in a patently offensive way, and "the work, taken as a whole, lacks serious literary, artistic, political, or scientific value." Once the jury makes that determination, then the work is no longer protected – but the American who made it or sold it is carted off to prison.

And now, we have this "obscene" tradition being taken up by Senator Weiler – again from the conservative side of things. His proposed law sounds almost as if it were lifted right from Pages of Death. It blames pornography for stunted brain development, emotional and medical illnesses, deviant arousal, harmful sexual behaviors and even biological addiction. He did leave out "and it will definitely make you murder little girls," but if you read the resolution enough, you can hear that in the background.

Even if you don't enjoy pornography — even if you despise it — this should trouble you. If you think not, remember that when the government tries to interfere in the marketplace of ideas, we all lose.

Remember the Indianapolis ordinance discussed above? Its proponents were rabid feminists, Catharine MacKinnon and Andrea Dworkin. They saw it defeated in court here in the United States, but they also pressed for such laws in Canada, where they remain on the books. However, rather than ending hardcore pornography north of the border, they have primarily been used to suppress gay material. This was a far cry from the mission these feminist moralizers sought to promote. And if you think you don’t like “obscene,” material, you need only look at 18 U.S.C. § 1462, which provides that even talking about abortion is , technically “obscene.” (Although no conviction under that would ever stand).

The lesson from that is to be careful when you call for, or even acquiesce to, restrictions on free expression. You never know when that will backfire on your point of view.

In Abrams v. United States, Justice Oliver Wendell Holmes wrote a passage that ultimately became the cornerstone of a liberty-based view toward free speech, and which became the dominant theory in First Amendment jurisprudence. In Abrams, Holmes gave us "the marketplace of ideas." And what a brilliant theory it was.

Holmes noted that if someone was completely confident in the belief that they were right, then it would seem logical that they would want to suppress dissenting views. "If you have no doubt of your premises or your power, and want a certain result with all your heart, you naturally express your wishes in law, and sweep away all opposition." Those who wish to wipe out pornography have no doubt that they are right, but they are precisely wrong.

Holmes, on the other hand, was right when he wrote: "[T]he ultimate good desired is better reached by free trade in ideas — that the best test of truth is the power of the thought to get itself accepted in the competition of the market…That, at any rate, is the theory of our Constitution."

Weiler's proposal is directly at odds with our theory of the Constitution. It belongs in that discredited junk pile of ideas right on top of the rotting pages of Comstock and MaCKinnon's warmed over dreck, as it even lacks the campy humor of "Pages of Death."

Update: I am informed by a commenter that the "Utahns are more porny" study is bunk. And, it seems that it is bunk. Does that change the article any? I think not. But, let us not rest our tale on bullshit.

Death to Section 2(a)! Hail Coleman, Connell, MacMull, and The Slants!

If they are not your favorite band, they should be. (Unless you hate freedom and America)

If they are not your favorite band, they should be. (Unless you hate freedom and America)

Last month, the U.S. Court of Appeals for the Federal Circuit decided In re Tam, 2015 U.S. App. LEXIS 22593 (Fed. Cir. Dec. 22, 2015). In it, the Federal Circuit made a sweeping pronouncement that the First Amendment applies to trademark registrations, and that a long-criticized prohibition on “disparaging” trademarks could no longer stand. The portion of the trademark act that fell was Section 2(a) of the Lanham Act, 15 U.S.C.S. § 1052(a).

Of course, I was delighted. I have long railed against Section 2(a). My first (losing) fight against this provision was in 2007. See Billman, Jeffrey, The F Bomb, Orlando Weekly, Jun. 7, 2007. And, once CNN gave me some column space, I used a lot of it to write about this issue. (Marc J. Randazza, Decision on Asian-American band's name is wrong and Why Redskins decision is wrong.

So when this decision came in, I jumped for joy. That said, it was a huge pain in my ass. I had just sent off my law review article on the subject to the printer, with all the final edits completed. I had a whole section criticizing Section 2(a) jurisprudence, and unflatteringly comparing U.S. law to recent European decisions. Then, In re Tam came out, and I had to rush to update it. Thank goodness that the Federal Circuit didn’t wait one more day to release the decision.

Ron Coleman

Ron Coleman

But, of course, this was a small price to pay for the delight of seeing our First Amendment rights protected, and seeing the personal victory for the lawyers in the case – Ron Coleman, John Connell, and Joel MacMull – First Amendment Bad Asses of 2015, as far as I am concerned.

However, the decision seemed to leave an important fight for another day. But, a recent missive by the Department of Justice might have brought us that day.

John Connell

John Connell

Section 2(a) does not only prohibit “disparaging” marks. Section 2(a) has some restrictions in it that remain – some of them reasonable, even. Section 2(a) bars registration of marks that deceptively suggest a connection with persons, institutions, beliefs, or national symbols. Since the function of a trademark is to distinguish a mark owner’s goods and services from those of other producers or suppliers, these prohibitions make perfect sense. There is no commercial rationale to permit false advertising in a trademark.

The First Amendment Lawyers Association provided an amicus brief to the In re Tam Court, in which it argued that § 2(a)’s prohibition on “immoral and scandalous” trademarks should also die along with the prohibition on “disparaging” trademarks. However, since that specific issue was not presented squarely before the Court, the Court declined to explicitly expand its ruling to include all of § 2(a).

Joel Mac Mull

Joel Mac Mull

Despite this urging, In re Tam left this most problematic portion of Section 2(a) standing, if just barely. It is not that the court approved of this clearly unconstitutional provision. Far from it. The Court simply recognized that this particular portion of the Act was not being challenged in this particular case. Nevertheless, in Footnote 1 of the decision, the Court augured the downfall of this provision as well.

We limit our holding in this case to the constitutionality of the § 2(a) disparagement provision. Recognizing, however, that other portions of § 2 may likewise constitute government regulation of expression based on message, such as the exclusions of immoral or scandalous marks, we leave to future panels the consideration of the § 2 provisions other than the disparagement provision at issue here. To be clear, we overrule In re McGinley, 660 F.2d 481 (C.C.P.A. 1981), and other precedent insofar as they could be argued to prevent a future panel from considering the constitutionality of other portions of § 2 in light of the present decision.

And with that, the most offensive portion of 2(a) remained intact.

But it was like a billiard ball hanging on the edge of the pocket. One tap, and it would fall in. However, just like when you play pool, sometimes the ball hangs there for a second, and then falls in on its own. That just happened. In a letter brief issued Thursday, the Department of Justice conceded that § 2(a) was no longer enforceable in light of In re Tam.

We do not believe that given the breadth of the Court’s Tam decision and in view of the totality of the Court’s reasoning there, that there is any longer a reasonable basis in this Court's law for treating them differently…
The reasoning of Tam requires the invalidation of § 2(a)'s prohibition against registering scandalous and immoral Trademarks as well."(source)

Before we call the game over, the Department of Justice hints that it may appeal the In re Tam decision. Should that happen, the Supreme Court outcome would be anything but preordained. However, the In re Tam decision seems to be on solid constitutional grounds. I am optimistic that if the government does decide to appeal, that it will not be overturned. That said, I think I would be naïve if I said it would be a 9-0 decision.

Certainly, I find both prohibitions to be offensive under the First Amendment, but I can at least emotionally (if not Constitutionally) get on board with the government wanting to put its fingers on the scales of justice when it comes to opposing racism. But, as the In re Tam case shows us, when the government tries to do that, it usually does so with all the grace and logic of a Chris Farley character. Nevertheless, give them credit for good intentions.

On the other hand, the prohibition on "immoral and scandalous" trademarks was nothing more than a neo-Comstock attempt to legislate morality and to suppress sexual speech in order to serve illegitimate goals. One of my favorite law review articles ever was by Steve Russell, writing about the Communications Decency Act. He wrote:

By trying to regulate obscenity and indecency on the Internet, you have reduced the level of expression allowed consenting adults to that of the most anal retentive blueballed fuckhead U.S. attorney in the country. (source)

Every time I got a Section 2(a) rejection under the immoral and scandalous clause, I heard those words in my head, replacing "U.S. Attorney" with "trademark examiner." Today, perhaps, those examiners can go listen to Louie Louie, see if they find naughty words in it, and go whine to the FBI about it.

Some may feel this is a narrow decision regarding trademark rights, and those who don’t own any trademarks may not think this is a big deal, especially if they won’t be applying for any “immoral or scandalous” registrations. If you feel this way, you would be precisely wrong.

Every American should be celebrating this news. When the government decides to suppress First Amendment rights, no matter how narrow that suppression might be, we all have a little less liberty. When the courts recognize the expansive nature of those rights, we are all more free. It’s refreshing to see that the Department of Justice decided to yield to the In re Tam decision — even if it turns out to be temporary, rather than pathologically defending an unconstitutional law in the name of one very narrow definition of morality.

My delight at this development is both personal and professional. Professionally, I have been banging my head against Section 2(a) for most of my career. When I speak on the subject, I proudly announce that I have lost more 2(a) administrative appeals than I can remember. It isn’t that I’m proud of losing – but I’m proud of my clients for being willing to take up the fight, even in light of the fact that until In re Tam, it was a hard uphill battle, with the entire weight of the appellate decisions just brushing off the First Amendment as if it were an annoying little gnat.

I'm looking at YOU, In re Fox, 702 F.3d 633 (Fed. Cir. 2012) In re Mavety Media Grp. Ltd., 33 F.3d 1367 (Fed. Cir. 1994) and Test Masters Educ. Servs., Inc. v. Singh, 428 F.3d 559 (5th Cir. 2005). If you read these cases, it will make you pretty sad that appellate judges can have such little reverence for the First Amendment, and such intellectual laziness in light of their own preconceived notions about morality. But, In re Tam restores all faith!

Those of us who believe in the First Amendment always believed that these decisions were wrong, but unfortunately, the government would exhaust each and every client before getting to the Federal Circuit to challenge it. Besides, how many times can you push that rock up the mountain before you just ask whether it is worth it?

But, finally, there was a client who didn't give up and who thought it was worth it — Simon Shiao Tam and the Slants (your new favorite band).

Therefore, I think that we all need to slap a few people on the back here. First, the Slants and Simon Shiao Tam for having the conviction to keep fighting this case to the appellate court. And just as much, Ron Coleman and Joel MacMull – the lawyers who handled the case. These lawyers did an incredible job – and they did it pro bono.

Because of them, your First Amendment rights are broader, more robust, and more protected today than they were just over a month ago. I have the privilege of calling Ron and Joel my friends. But, even if I did not know them, I would demand that all readers hoist them on their shoulders for what they’ve done for us. Fighting a First Amendment fight, for free, against some very poor odds is what I call “heroic.”

And if the government does appeal the In re Tam case to the Supreme Court, they’re going to have the bigger guns, unlimited funds, and at least a few of the justices already in their pockets.

Well, that doesn't concern me.

I like the good guys’ chances, with First Amendment Bad Asses like Ron, John, and Joel fighting for us.

____

If you find the issue of morality and intellectual property rights of interest, I'd be delighted if you downloaded and read my law review article on the subject. See Marc J. Randazza Freedom of Expression and Morality Based Impediments to the Enforcement of Intellectual Property Rights (January 16, 2016). Nevada Law Journal, Vol. 16, No. 1, 2016. This issue is only a part of the article, as it deals with morality and IP rights on a global scale. If you do read it, download it rather than just reading in your browser. (It gets the numbers up)

Beware of Good Intentions When it Comes to Censorship

Kinney v. Barnes, 57 Tex. Sup. J. 1428 at n.7, (Tex. 2014) (citing SOBCHAK, W., THE BIG LEBOWSKI, 1998).

Kinney v. Barnes, 57 Tex. Sup. J. 1428 at n.7, (Tex. 2014) (citing SOBCHAK, W., THE BIG LEBOWSKI, 1998).

Censorship often comes along with a side order of good intentions — or at least that is in the marketing materials for the proposed censorship. You want a world without racism? Lets ban racist speech! But, the problem is that censorship almost always turns into a tool to seize or maintain a grip on power. (What We Risk When We Ban Racist Speech)

A Kentucky legislator recently proposed a narrow restriction on free expression — and it seems that it came from reasonable and logical intentions. Unfortunately, when you consider this idea while keeping the First Amendment in mind, the implications are no longer acceptable. They are intolerable.

Representative John Carney introduced a bill to prohibit anyone who witnesses "an event that could reasonably result in a serious physical injury" from publishing information about that event on the internet for at least an hour if their posting could identify potential victims.

I see where he is coming from. Do you want to hear about your loved one being killed in a car accident from Facebook? Do you want to wake up from an accident and find your traumatic and personal experience all over Twitter? I get it. In short, we have significant social media privacy issue – and the United States seems to be forgetting all about privacy issues as we steam forward into the Internet's adolescence.

What the East German Stasi used to do to its citizens, we all now do to each other. We all live under constant crowdsourced surveillance, and instantaneous broadcasts of traumatic events are commonplace. As a policy consideration, I am happy that someone is at least willing to take a shot at changing this. But, despite the good intentions behind the bill, I can’t get behind it. A law like this can not likely withstand First Amendment scrutiny.

A law like this is what is known as a “prior restraint” – a rule that attempts to prevent speech from occurring. As Justice Blackstone eloquently wrote: The liberty of the press is indeed essential to the nature of a free state, but this consists in laying no previous restraints upon publications…” Or, as Walter Sobchak shouted, “THE SUPREME COURT HAS ROUNDLY REJECTED PRIOR RESTRAINT!” Kinney v. Barnes, 57 Tex. Sup. J. 1428 at n.7, (Tex. 2014) (citing SOBCHAK, W., THE BIG LEBOWSKI, 1998). See also, How to Cite to Walter Sobchak.

That rejection is rounder than you can spin me like a record. Rounder than Ken's noggin.

It has been that way since Near vs. Minnesota. So, you've had 85 years to get with the program.

Prior Restraints are permissible under the U.S. Constitution. However, they are restricted to situations with which there is an immediate, clear and present danger that something awful will happen if the speech gets out there.

No one would question but that a government might prevent actual obstruction to its recruiting service or the publication of the sailing dates of transports or the number and location of troops. Near v. Minnesota, 283 U.S. 697 (1931).

For example, if Popehat found out about a troop movement in Afghanistan and wanted to publish that information, thus essentially broadcasting a secret mission to the enemy, the government could likely get a Prior Restraint. This would keep that information from being published until after it no longer causes harm to the operation, but it would have to dissolve once the necessity for it passed.

We certainly don't want to lose a war because we are afraid of delaying a news article by twenty- four hours. On the other hand, we do not allow Prior Restraints simply to protect feelings or privacy.

I can philosophically agree with Representative Carney’s proposal. I get it. But, how do we think that such a prior restraint would be used in the future — when someone wants to use it to seize or wield power in an undemocratic manner? I'm not sure either, but I think that when we see a possible prior restraint, we should consider that to be a "nuclear option." We don't need to ask ourselves how bad the damage will be. Unleashing a prior restraint is damage in itself.

I'm not saying that I wouldn't be able to agree to any future notions of new justifications for prior restraints. In fact, a recent 7th Circuit decision raises some interesting issues. I'm not even 100% committed to the long-settled notion that equity can not enjoin libel — as it is at least worth discussing whether that still makes sense in 2016 (even if only to reject any change – but lets not be lazy in the name of absolutism). (UPDATE: "equity can not enjoin libel" means that you can't get a court order stopping someone from defaming you before a trial on the merits of the defamation claim — and sometimes, not even afterward).

But, we need to recognize that prior restraints are very dangerous, very sticky, very dirty, and very difficult to manage effectively. Any time you think about unleashing one, you need to have a very clear discussion about what it could mean, once you let that gimp out of the basement.

In this particular situation, I would very much like to see Carney's vision come to pass. I would love it if every time you fucking dipshits drive past a car accident, you just look at the road ahead of you and keep driving. I'd love it if society got to a point of civilization that nobody whipped out a cell phone to take a picture of someone lying on the ground after an accident.

But, do I want to live in a place where we can't photograph the police murdering citizens? Do I want to live in a place where we can't immediately broadcast genuinely newsworthy events? Do I want to live in a place where the cops can arrest me for publishing a picture?

Fortunately, Carney realized that too, and withdrew the proposed bill after catching hell for it. Good. The intention might have been noble, but the medicine was too damn dangerous to take.

MLK's First Amendment Legacy

Their Rising Voices Sang Alongside Martin Luther King

Their Rising Voices Sang Alongside Martin Luther King

If I were to write about Martin Luther King, Jr.’s contribution to civil rights, I think I would be wasting my time. Far more qualified views are out there, especially today.

However, I feel like it is worth mentioning that he had a part in a profound change in favor of Civil Liberties as well. I speak of nothing less important than N.Y. Times Co. v. Sullivan, 376 U.S. 254 (1964).

That case is the foundation upon which stands most of our modern First Amendment jurisprudence, without which we would not have modern investigative journalism, the right to express our opinions, nor very likely much content on this blog.

That case concerned an advertisement that ran in the New York Times in 1960. The ad, titled “Heed Their Rising Voices,” stated: “As the whole world knows by now, thousands of Southern Negro students are engaged in wide-spread non-violent demonstrations in positive affirmation of the right to live in human dignity as guaranteed by the U.S. Constitution and the Bill of Rights.” The ad went on to state that “In their efforts to uphold these guarantees, they are being met by an unprecedented wave of terror by those who would deny and negate that document which the whole world looks upon as setting the pattern for modern freedom.” The ad illustratse the “wave of terror” by describing events that took place across the South, concluding with an appeal for donations in order to support the right to vote, the student movement, and Martin Luther King, Jr.'s legal defense fund.

There were indeed some slight inaccuracies in the ad. L.B. Sullivan, a Montgomery, Alabama City Commissioner sued the New York Times for libel, claiming that the advertisement targeted him. The Alabama state court held in his favor, and awarded him $500,000. This was unsurprising given the time, place, and jury makeup.

In writing for a 9-0 majority, Supreme Court Justice William Brennan wrote:

[W]e consider this case against the background of a profound national commitment to the principle that debate on public issues should be uninhibited, robust, and wide-open, and that it may well include vehement, caustic, and sometimes unpleasantly sharp attacks on government and public officials. The present advertisement, as an expression of grievance and protest on one of the major public issues of our time, would seem clearly to qualify for the constitutional protection. The question is whether it forfeits that protection by the falsity of some of its factual statements and by its alleged defamation of respondent. N.Y. Times Co., 376 U.S. 254, 271.

How beautiful that language is. The Court went on to reject any notion that the burden of proving truth is laid at the feet of the speaker. Id. And even though the advertisement had some minor errors, New York Times v. Sullivan held that if there is to be wide open and robust debate, the First Amendment needs “breathing space” in order to survive. And in order to impose liability for merely erroneous reports on political conduct reflects the “obsolete doctrine that the governed must not criticize their governors.” Id.

The ad was, according to the Court, “an expression of grievance and protest on one of the major public issues of our time.” N.Y. Times Co., 376 U.S. 254, 271. And since the decision, it has only gained more traction and more strength, being firmly entrenched to the point that one can not usually write a brief defending a defamation case without citing to Sullivan. Similarly, one should not bring a plaintiff's side defamation case without seeking to avoid its shores upon which many a censorious asshat finds his ship dashed.

This leaves the American press wildly free — at least in theory.

But for Dr. King’s struggle, we would never have had New York Times v. Sullivan. It may not have been a case or event central to his legacy, but it is central to our profound national commitment to wide-open and robust debate.

In this day and age those who seek to promote Civil Rights often seem to be at odds with Civil Liberties. The First Amendment is seen as the enemy to the "Social Justice" crowd. Today, I try and remind them that there was a time when Civil Liberties and Civil Rights were symbiotically joined.

Lets remember that, on this day set aside to honor Dr. King.