Lawsplainer: No, Donald Trump's "Second Amendment" Comment Isn't Criminal

Donald Trump, against all advice and rumors of pivot, will continue to be Donald Trump. Today, at a rally, he uttered a line that some have taken as a suggestion that Hillary Clinton (or possibly judges) could or should be killed if they did not support Second Amendment rights:

At a rally here, Mr. Trump warned that it would be “a horrible day” if Mrs. Clinton were elected and got to appoint a tiebreaking Supreme Court justice.

“If she gets to pick her judges, nothing you can do, folks,” Mr. Trump said, as the crowd began to boo. He quickly added: “Although the Second Amendment people — maybe there is, I don’t know.”

Trump's staff quickly issued a press release saying that this comment was merely a reference to the vigorous political activism of Second Amendment fans, not to violence. I express no opinion about what Trump "meant": I think trying to parse his Joycean ramblings is usually pointless.

But let's say we choose to interpret this as Donald Trump suggesting that, if Clinton appoints judges hostile to the Second Amendment, she or the judges could be shot.

Is that a crime? Is it outside the protections of the First Amendment?

No, I'm confident that it isn't.

People are referring to this as a threat, but it's more like incitement. Under any interpretation Trump isn't saying he will shoot anyone; he's suggesting that someone else might — and perhaps implying that they should.

Attempts to punish incitement to violence are governed by the "clear and present danger" test articulated in Brandenburg v. Ohio. Brandenburg involved a Klan rally at which a speaker said "We're not a revengent organization, but if our President, our Congress, our Supreme Court, continues to suppress the white, Caucasian race, it's possible that there might have to be some revengeance [sic] taken." He was convicted under the Ohio Criminal Syndicalism statute for "advocat[ing] . . . the duty, necessity, or propriety of crime, sabotage, violence, or unlawful methods of terrorism as a means of accomplishing industrial or political reform." In one of the most important First Amendment decisions of the last half-century, the Supreme Court overturned the conviction. "[T]he constitutional guarantees of free speech and free press do not permit a State to forbid or proscribe advocacy of the use of force or of law violation except where such advocacy is directed to inciting or producing imminent lawless action and is likely to incite or produce such action." Thus, since the Klansman wasn't advocating imminent lawless action and likely to incite it, his words were protected by the First Amendment. By the same logic, Trump's comment is protected. It's conditional, it's directed to something that will happen (at the earliest) more than six months in the future, and it's not likely to produce action. I don't think this is a close call at all.

What if we stubbornly treat Trump's comment as a threat? Isn't it a federal crime to threaten a major presidential candidate?

Under the true threat doctrine, it's still protected by the First Amendment.

Consider the Supreme Court's ruling in Watts v. United States. At an anti-draft protest, Watts said he would resist the draft and that "If they ever make me carry a rifle the first man I want to get in my sights is L. B. J." He was convicted of threatening the President. The Supreme Court reversed the conviction. The court noted that the statement was made at a political rally and drew a laugh from the crowd. "We agree with petitioner that his only offense here was 'a kind of very crude offensive method of stating a political opposition to the President.' Taken in context, and regarding the expressly conditional nature of the statement and the reaction of the listeners, we do not see how it could be interpreted otherwise."

Since Watts courts have grappled with whether the government must prove that a threat is just objectively threatening (meaning, a reasonable person would take it as an expression of intent to do harm) or also subjectively threatening (meaning, the speaker intended that it be taken that way), and that issue is not fully resolved. Thankfully we don't have to delve into the fetid swamp that is Donald Trump's subjective intent, because I don't think the objective test is anywhere close to being met. Like Watts, the statement was spoken at a political rally, and like Watts, it drew laughter, and like Watts, it was hypothetical and conditional. Moreover the "maybe there is, I don't know" softens it substantially. At most it's the sort of hyperbole that Watts protected. It's not anywhere close to the sort of extreme and specific statements that have been taken as threats in the political context, like the abortion provider "wanted" posters in Planned Parenthood v. American Coalition of Life Activists or the nutty white supremacist in United States v. Turner (both of which show how courts sometimes blur the lines between incitement and threats). Again, with respect to dissenters out there, I don't see this as a close call.

In America, under the First Amendment, I can say something like "if Donald Trump gets elected, someone should assassinate him for the good of the nation." That statement may be immoral, and destructive of the very American values it purports to defend, but unless it calls for imminent action or expresses an objectively credible intent to do harm, it's protected speech.

Reverence For The Blue

Wednesday was Big Government night at the Republican National Convention, with speaker after speaker extolling the virtues of public employees. Scott Walker said that government lawyers should not just be respected — they should be revered. Newt Gingrich called for zero tolerance for people who call for the death of IRS employees. Vice-Presidential nominee Mike Pence asked delegates to let EPA regulators and VA administrators know that we will always stand with them.

Well, no. That would be ridiculous. Not even the Democrats indulge in such hagiography of all public employees.

Republicans said those things about one subset of government employees — police officers. So no worries. The party of limited government isn't demanding reverence of all government — just the armed parts.

Flag-waving about cops works on multiple levels. On one level it's symbolic and emotive — it's America, apple pie, baseball, and mom, all wrapped into an idealized view of cops.

the_runaway_by_norman_rockwell-400x513

But the words work on another level too. They carry messages about the relationship between the citizen and the state, as embodied by its armed officers: armed officers of the state are, by definition, heroes. Armed officers of the state are, by definition, trustworthy and right. It's wrong to question them. They need and deserve special protection.

We already get that from television and movies and other parts of the culture. It's only natural that we get it from our politicians as well. Law and order rhetoric has two parts — you're in danger and I'll protect you. Lionizing cops is part of the I'll protect you phase. It signifies "I support cops, cops are part of my tribe, and together we will keep you safe." At least, it says that for some values of "you."

The Republicans — as they have historically — have deftly manipulated fear about lawlessness and disorder. On the home front, we fear lawlessness and disorder in the form of tragic and despicable ambush murders of police officers in multiple locations. Each represents a world ended, a family destroyed, a grotesque act of hatred. More importantly for politicians, each represents the particular kind of lawlessness we fear.

As a nation, we're rather selective about what kind of lawlessness terrifies us.

What is more terrifying: criminals engaging in a particular type of wanton violence more often than usual, or armed agents of the state breaking it with impunity? The answer to that question might depend on whether you're likely to be the victim of one or the other. In America, maniacs murder cops. And in America, cops shoot unarmed caretakers with their hands in the air as they try to protect autistic patients. They beat surrendered suspects. They perjure themselves. They execute citizens. They manipulate the system to protect cronies. They rape the vulnerable.

Not all cops, of course. We stand behind the law-abiding cops, some politicians claim. But the fact is the American justice system demonstrably stands behind cops even when they're proven liars and lawbreakers, and the system's standard of proof for cops — and the public's — is much different than the standard of proof the rest of us face. The rhetoric of cop-worship is the foundation of that special treatment.

Somehow, as a nation, we're not terrified of this trend of state lawbreaking as we are of other types. At least, most of us aren't. In fact, many of us are miffed when someone brings it up.

That's culture — a culture that already reveres cops, just like Scott Walker says we should. Our reverence is unreflective and mostly unquestioning. Our reverence is shorthand for bundles of other attitudes, some of them about race and class and other ugly things. Our reverence ought to trouble us, and should have no place at the convention of a party that's supposed to stand for conservatism. Reverence for the government is not conservative.

Ask Popehat! Joe Manchin Edition

Welcome to Ask Popehat!, the feature where we take your questions on topics ranging from law to ethics to proper child rearing, and give sensible easily digested answers that you can share with friends and family at the dinner table. For this edition, we'd like to welcome Senator Joe Manchin of West Virginia. As the distinguished former Governor and Attorney General of the Mountain State, Senator Manchin has graciously agreed to provide his wisdom on the difficult job of upholding the Constitution during times of emergency and civil strife. Our question to Senator Manchin comes from Edith H., of Anchorage Alaska.

Senator Joe Manchin

Senator Joe Manchin

Dear Senator Manchin:

I was shocked and heartbroken at this week's deaths at Pulse Night Club in Orlando, though I'm still learning the facts. Like a lot of Americans, I'd like to know how the shooter was able to get his hands on a semi-automatic rifle when he'd been investigated by the FBI, not once but twice.  Wasn't that a crime? Shouldn't the government have prevented him from obtaining a dangerous weapon, just to be sure?

Edith in Anchorage.

Senator Joe Manchin

Senator Joe Manchin

Dear Edith:

Thank you for your questions. Like you, I was dismayed to wake up Sunday morning to see news of this tragedy. And let me tell you, as a former prosecutor, once I recovered from my grief I turned to the first question anyone should ask when tragedy occurs:

Who is responsible?

There are many we could blame for this atrocity, starting with the obvious: the shooter himself. By all accounts Omar Mateen was a psychopath, with deeply strange sexual hang-ups and a twisted, murderous interpretation of his religion. Some would say that alone explains his awful crimes, and that we should be thankful he's no longer around. That's what many ordinary people would say. But as a former prosecutor, and a United States lawmaker, my job is to probe deeper, to prevent tragedies of this sort from occurring again. And I'm glad to say that I have found the true culprit behind these crimes. That culprit is the United States Constitution.

Now don't get me wrong: I'm a big fan of the Constitution, in many respects. I'm a great admirer of Article I, which gives United States Senators, like myself, the power to maintain a Journal of Proceedings. And to be compensated by law for our service to this great nation. As well as to provide and maintain a Navy. Did you know that even though West Virginia is landlocked, the Navy keeps our rivers free of pirates? God bless our beautiful mountain streams. And God bless the United States Navy.

But as much as I love our brave fighting sailors, the Constitution is a deeply flawed document, which has been twisted even further by bleeding heart judges and corrupt defense attorneys for criminals. Why, did you know that the Constitution says, at least according to some, that a criminal's life, liberty, and property cannot be taken away without "due process of law?"

I was gobsmacked when I first heard that.

You see, some judges, bless their hearts, have gotten it into their heads that we in the United States Senate cannot pass a law to keep potential troublemakers from getting into mischief, or sending them to prison, or taking away their possessions, unless a judge (naturally) and jury have said they actually broke some other law that was already on the books? That's what "due process of law" means.

That's what killed those poor people in Orlando. And it's killing us all.

Edith, as a United States Senator, my job is to keep good Americans like you safe from all enemies foreign and domestic. But as powerful as I am, in some ways my hands are tied. How can I keep you safe from an enemy domestic if I can't order him locked up for your own protection? Or maybe we don't want to actually, you know, put him in jail. Maybe we just want him to shut the funk up, pardon my French. There are a lot of dangerous weirdos out there, saying stupid things that give dumb people the wrong idea about America. Why should they be able to spout off at will, if we in the Senate have determined they're wrong? Why should they be able to buy a gun, if the brave men and women of our Federal Bureau of Investigation think they may be up to no good, some day?

I'll tell you why. It's because pointy-headed judges have arrogated to themselves the power to interpret our sacred Constitution, a job that's reserved to the Senate. Our founding fathers, men like Aaron Burr, our third Vice President, and Jefferson Davis, a great Senator from Mississippi and a brave Secretary of War, didn't hold with toxic notions like this "due process of law." And neither should we.

Of course, Edith, I'm not suggesting that we should put ordinary Americans on lists of people whose rights aren't protected. I love our rights, and I know you do too. We'd never keep you from exercising your God-given right to own a hunting rifle, and to shoot as many turkeys as federal regulations permit. West Virginia is prime turkey-hunting country. If you and your husband enjoy the excitement of turkey shoots as much as I do, we'd love to show you some Mountain State hospitality at our fine hunting resorts.

No, I'm speaking of them, Edith. People who don't love America the way you and I do. I think you know who they are. They're out there, in the mosques and madrassas and "civil liberties" rallies, plotting the downfall of our great nation, and speaking ill of our ancient institutions, like the United States Senate, the greatest legislative body in the world. And one day, if they're not stopped, they'll each of them shoot up a hundred night clubs. Unless we stop them from owning firearms, for their own good, and our own protection.

Kindest regards, and God bless our United States Navy,

Joe Manchin.

In Support Of A Total Ban on Civilians Owning Firearms

I support the argument that the United States should enact a total ban on civilians owning firearms.

Oh, I don't support the ban. I support the argument.

I support the argument because it's honest and specific. It doesn't hide the ball, it doesn't refuse to define terms, it doesn't tell rely on telling people they are paranoid or stupid in their concerns about the scope of the ban. The argument proposes a particular solution and will require the advocate to defend it openly.

That elevates it above most gun control dialogue.

I've argued before that gun control debates would be improved if people avoided culture-bundling and cared about the meaning of words. Most don't. Too much looks like this:

derpitude

There's a very good reason to care about what you mean when you argue that "assault weapons" should be banned: the term is infinitely flexible. If you think it inherently means something specific, you haven't bothered to inform yourself about the issue. "Assault weapon" means whatever the definers decide it should mean. Banning "assault weapons" is the gun version of banning "hate speech" or "disruptive protest" or "dangerous persons" or "interfering with a police officer" — it's a blank check. And I don't like handing out blank checks to the government to ban things and jail people.

I'm not making an argument that it's impossible to define assault weapons.1 I'm not even making an argument that banning "assault weapons," defined with reasonable specificity, would violate the Second Amendment. There's an argument to be made about that — an argument that's still in its jurisprudential infancy, given the recency of Heller — but it's not my point. My point is that if you won't even try to define what you want to regulate, and how, the argument about practicality and constitutionality is both abstract and premature. It's the same with defining automatic and semi-automatic. I don't want gun control advocates to acquire some vague grasp of what those mean because I'm eager to have my neighbor own a machine gun. I want advocates to learn the difference so I can have some level of confidence that I know what kind of proposed government power we're debating. Right now the debate seems choked with people who don't know, are proud of not knowing, and think you're a redneck gun-nut asshole if you want them to know because they feel very strongly about this. I decline to take that seriously.

Gun control advocates may argue that it's pointless to define terms because gun control opponents will oppose gun control laws no matter how they are crafted. That's a fair description of the behavior of some — perhaps even most — gun control opponents. But it's not a logical or moral excuse for not trying. Urging vague and unconstrained government power is not how responsible citizens of a free society ought to act. It's a bad habit and it's dangerous and irresponsible to promote it.

This is not an abstract or hypothetical point. We live in a country in which arbitrary power is routinely abused, usually to the detriment of the least powerful and the most abused among us. We live in a country in which we have been panicked into giving the government more and more power to protect us from harm, and that power is most often not used for the things we were told, but to solidify and expand previously existing government power. We live in a country where the government uses the power we've already given it as a rationale for giving it more: "how can we not ban x when we've already banned y?" We live in a country where vague laws are used arbitrarily and capriciously. We live in a country that is about to nominate Donald Trump as the Republican candidate for President of the United States: a man who wants to limit free speech, ban people based on religion, and generally jackboot around. We live in a country where his opponent is a long-time advocate of the security state who got famous helping label young black men "superpredators."

Maybe gun control advocates won't define terms because they know that the defined terms they want won't sell. That's not unusual; it's typical politics. That doesn't make it right. You have no moral or rational claim to your fellow citizens' support for a deliberately vague law. Cowboy up. Define what you want and argue for it. Anything else is either silly and self-indulgent, or deliberately deceitful.

Libertarianism as Ten Questions Rather Than Ten Answers

Gary Johnson, Libertarian Party candidate for President, is polling extremely well for someone who isn't a Republican or Democrat. That will likely revive the questions "what is the Libertarian Party," anyway?" and "what is a libertarian, anyway?" It is traditional for those questions to be answered snidely, contemptuously, or with a disturbing degree of uncombed mania.

I'm not very interested in the first question. I'm a sort-of small-l libertarian, not a large-L Libertarian. And I'm deeply uncomfortable about labeling myself as even a small-l libertarian. I've explained why before: I think that embracing political labels leads to bad behavior. I ought to support something because I have thought it through and think it's right, not because members of my tribe support it and insecurity and cognitive dissonance will set in if I disagree with them.

That makes it awfully difficult to explain what libertarianism is when people ask because they're wondering if there's some sort of alternative to the horror show the major parties have served up this year. Nobody wants to sit through my discourse on what I think on a long series of issues, and then stick around while people bicker over whether that's libertarian or not. Yet I believe there are values underlying "libertarianism" that are worth promoting, and that the label might be a useful shorthand for defending them. So what to do? Accept a label with the baggage and thought distortions and compromises that it brings, or abandon concise and effective advocacy?

Maybe there's another way.

I'd like to propose presenting libertarianism as a series of questions rather than a series of answers or policy positions. Even if I don't agree with people's answers to these questions, getting them to ask the questions and confront the issues reflected in the questions would promote the values that I care about.

These are all questions that I think ought to be asked whenever we, as a society, decide whether to task and empower the government to do a thing.

Does the United States Constitution permit the government to do this?

This is the fundamental question. The Constitution is the rulebook. If it doesn't give the government power to do something, or doesn't let it do something to you, then we shouldn't do it unless we amend the Constitution first. You might think that's obvious. It's not. Taking the question seriously is important even when we don't agree on the answer or even the methodology. The norm is to invoke the Constitution only when you don't like a proposed law, and to scorn constitutional inquiry when it's an impediment.

What would this power look like if it were expanded dramatically in scope or in time?

Power given to the government tends to grow, not shrink. Folks don't give up power or money easily. What does the power you offer to the government look like if government actors fight to widen its scope?

Tell me if this sounds familiar: terrorists attack, citizens are killed, property is destroyed, the nation's confidence is severely shaken, and leaders propose a law dramatically expanding the power of the state temporarily to address the crisis. I'm not talking about 2001 and the PATRIOT ACT. I'm talking about 68 B.C. and the lex Gabinia, proposed to give Pompey extraordinary powers to fight pirates. That power led, some assert, to the fall of the Roman Republic and the rise of Imperial Rome.

Laws passed "temporarily" are often not temporary at all. Laws passed ostensibly for one purpose are often twisted to other purposes.

What would this obligation look like if exercised indifferently by unaccountable people?

We owe a debt to our veterans and the proposition that we're responsible for their health care is an appealing one, particularly when their health problems result from their service to our country. The question is how to provide that health care. Should we make the government a direct provider? Well, what would it look like if we charged a gigantic government bureaucracy to provide it, and maintained a civil service political and legal culture that made the bureaucrats almost completely unaccountable for how they run it? It turns out we already know the answer to that one.

What would your worst enemy do with this power?

Aye, there's the rub. Think of the politician you hate and mistrust most. Do you want that politician administering enforcement of the law you propose, particularly in a time when other branches of government are aligned or weak?

Does this power make a choice about morals, ethics, or risk that individuals ought to make?

Consider C.S. Lewis:

My contention is that good men (not bad men) consistently acting upon that position [imposing “the good”] would act as cruelly and unjustly as the greatest tyrants. They might in some respects act even worse. Of all tyrannies, a tyranny sincerely exercised for the good of its victims may be the most oppressive. It would be better to live under of robber barons than under omnipotent moral busybodies. The robber barons cruelty may sometimes sleep, his cupidity may at some points be satiated; but those who torment us for their own good will torment us without end for they do so with the approval of their own conscience. They may be more likely to go to heaven yet at the same time likely to make a Hell of earth. This very kindness stings with intolerable insult. To be “cured” against one’s will and cured of states which we may not regard as disease is to be put on the level of those who have not yet reached the age of reason or those who never will; to be classed with infants, imbeciles, and domestic animals.

Does your proposed law empower the government to make the sort of moral, ethical, or risk-assessment decisions that individuals ought to be making for themselves? To combine this question with the last one: if you are empowering the government to make moral, ethical, or risk-assessment judgments for you, are you comfortable with that power being wielded by people with moral, ethical, and risk viewpoints you hate?

Here's another way to ask this question: how does this law treat you with respect to your ability to make decisions, and are you happy with the government constantly treating you that way with respect to other decisions?

Does this power represent the government putting its thumb on the scales to prefer some competitors over others, perhaps based on their relative power and influence?

Or, to use a specific example: if you make monks who hand-carve wooden caskets to support themselves take years of training to learn how to embalm bodies even though they don't have anything to do with dead bodies, are you working for the common good, or are you the puppet of mortuary owners seeking to manipulate the law to discourage competition?

Does this power set up a conflict between laws and rights?

The Constitution creates negative rights — things the government can't do to us. Laws sometimes create positive rights — our privilege to demand something from the government or each other. Does this proposed power set up a conflict between those rights? Does the law purport to give me the power to demand something from you that you have the right not to give?

Are we giving this power to the right level of government?

If we must give the government the power to do this, what part of the government should get it?

Are we acting out of fear, anger, or self-promotion?

Is this law named after a dead kid? Is it named in a way calculated to suggest somebody is awful and we're a-gonna kick their asses? Is it named to promote a politician? Is it named to promote our self-esteem? Is this law the equivalent of grocery shopping when we're hungry? Is it the equivalent of liquor shopping when we just caught our significant other in bed with our best friend? Are we too angry, tired, or scared to think clearly about this law right now? is the person proposing this law in a difficult re-election contest?

Is there any evidence the government is any good at this?

Say you've got a problem at work and you need someone to fix it. You'll probably give some thought to who is best suited for the job. If the server's down you're not going to send Ethel at reception who once tried to send an email from the fax machine. If you need someone to calm the boss down you're not going to send Wayne from sales who prides himself on "saying what people think." You give a shit about how it's going to turn out so you evaluate who has the skillset.

Often we don't do that with the government. We assume, based on habit or ideology, that if there's a problem that the government ought to solve it. Should we? Possibly. But not obviously, not definitely. So ask: what's the specific, evidence-and-experience-founded basis for thinking the government will make this better rather than worse?

Even if people don't agree with my answers to these questions, I think that the country would be a lot more libertarian — as I like to use that term — if people got interested in asking them.

David French For President

I stand with David French.

I don't stand with him on social issues, at least not most of the time. I don't stand with him on many geopolitical issues — though I note that he's willing to back up his views by volunteering for military service rather than merely sending other people to risk their lives to advance them.

I stand with him as someone I respect, admire, and trust.

I met David in 1991 at Harvard Law School. He stood out. In a class awash in people from Princeton and Stanford and Yale, he came from a small private college in Nashville, but was manifestly intellectually qualified to be there. He was open about his faith in a positive and friendly way. He was unapologetic, firm, but polite about his political views, which were very substantially to the right of Harvard's rather unreflectively lefty ethos. These were the days of the Clarence Thomas hearings and the run-up to the 1992 elections, and political discourse mostly consisted of expressing disdain and disbelief at the existence of different viewpoints. David got hissed in class — that's what people did before there was Twitter — by the usual suspects.

Yet David, unlike some people with strong political beliefs, was generally well-liked because his strong beliefs were accompanied by an air of decency, humility, and friendliness. Friends — people with a wide array of political beliefs and social, ethnic, and religious backgrounds — used to joke that David was the reasonable man of legal lore. When we studied the tort of intentional infliction of emotional distress — which traditionally imposes liability when someone's conduct is so terrible that it would cause a reasonable member of the community to exclaim "outrageous!" — we relied heavily on David. We'd explain the facts to him, and if he exclaimed "OUTRAGEOUS!" we felt comfortable in concluding that's how a decent, normal American would react.

Since then, David has led FIRE, one of my favorite organizations, to fight for the free speech, assembly, and worship rights of students. Faced with a war he believed in, and faced with the sacrifices of others, he joined and served honorably in a war zone rather than supporting conflict without personal sacrifice. Like me, he adopted a child into his family, and like me recognized that the opportunity to adopt a child is an incredible blessing upon the family that should inspire parents to feel profound thankfulness.

I disagree with David quite often. For instance, I think he's too uncritical of our international military agenda. I think his criticisms of the cultural left too often characterize the whole based on the bad behavior of the few and too often indulge in the sort of gratuitous rhetoric that doesn't live up to the rest of his persona. But I respect him because I know he got where he is based on principle and that, if I argued with him over it, he'd listen to me and discuss it with me like a grown-up (and perhaps give me more attention than my antics deserved). I trust him more than I trust the vast majority of politicians, even when I agree with those politicians' apparent stated positions of the moment.

This week's attacks on him annoy me. They annoy me because so many are careless, puerile and uninformed. They annoy me almost (almost) to the point of reflection — is that how I sound when I reject candidates out of hand?

I don't know if David will decide to tilt at this windmill. I do know that it would be a pleasure to vote for someone whose integrity and decency I trust, and for whom I have abiding respect, even if I don't share all of his views.

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.

Popehat's Old Friend Bill Johnson Turns Up, This Time As A Donald Trump Delegate, of Course

Long-time Popehat readers probably remember good ol' Bill Johnson.

I first wrote about Mr. Johnson in 2008, when he ran for a seat on the Los Angeles County Superior Court. Mr. Johnson used to go by the name James O. Pace, under which name he advocated repealing the 14th and 15th Amendments and replacing them with the "Pace Amendment":

No person shall be a citizen of the United States unless he is a non-Hispanic white of the European race, in whom there is no ascertainable trace of Negro blood, nor more than one-eighth Mongolian, Asian, Asia Minor, Middle Eastern, Semitic, Near Eastern, American Indian, Malay or other non-European or non-white blood, provided that Hispanic whites, defined as anyone with an Hispanic ancestor, may be citizens if, in addition to meeting the aforesaid ascertainable trace and percentage tests, they are in appearance indistinguishable from Americans whose ancestral home is in the British Isles or Northwestern Europe. Only citizens shall have the right and privilege to reside permanently in the United States.

He lost, despite some woefully clueless press coverage. But you can't keep a white nationalist down. Mr. Johnson has returned again and again. He managed to get on Ron Paul's endorsement list until he was thrown off, perhaps on the theory that such racial ideas belong in newsletters written in Paul's name but not in judicial candidates. He became "chairman" of the "America Third Position," which is more or less what you'd guess it is. He got the Los Angeles County Bar Association to put him on their lawyer referral list.

And now, proving that there are not only second acts but near-infinite acts in American life, Mr. Johnson has been accepted as a Donald Trump delegate in California. Mother Jones reports:

Johnson applied to the Trump campaign to be a delegate. He was accepted on Monday.

I actually doubt that the Trump campaign knowingly chose Johnson because he's a known white nationalist. But I doubt they particularly care. Bill Johnson has come home.

Edited to add: Josh Harkinson, author of the Mother Jones piece, pokes a bit of fun at Bill Johnson for his taste in food:

As we sat next to a table of immaculately coiffed Korean Air flight attendants, I mentioned that some might find it surprising that a guy who wrote a book advocating the creation of an all-white ethno-state was eating a plate of bulgogi beef with kimchee. "Koreans don't have to make Korean food," he said matter-of-factly. "One of the best Chinese restaurants I went to in the Bay Area is owned by a Mormon and cooked by a Mormon. Really great Chinese food."

One hears this a lot: how can a racist like Korean food? How can that guy be a bigot when he once dated a black girl? (That one was a defense in a civil rights case I prosecuted in the '90s). How can she be racist if she has Latina friends?

All of those arguments depend upon a hidden premise: that racism is rational, and therefore can be expected to operate rationally. It isn't and it doesn't.

Bathrooms and Fear

Our cultural wedge issue of the moment is bathrooms, and which ones transgender people ought to use. North Carolina's recent law and spin-off corporate policies and boycotts thereof have kept this in the headlines.

My biases are fairly straightforward. I don't think there is any sudden surge of transgender people trying to use the bathroom they identify with. I'm skeptical of the notion that transgender people pose an elevated threat of sexual assault and haven't seen any evidence supporting it. I don't believe that transgender people have suddenly grown to a statistically significant percentage of the population. Rather, I believe that North Carolina's laws and those like it are electioneering and wedging: in an era where anti-gay strategies are increasingly unpopular, it's a pander to a remaining sore spot of a culturally conservative base.

However, I'm a little uncomfortable ridiculing the discomfort and fear expressed by advocates of birth-gender-only bathrooms.

I don't find transgender people scary, and I'm not concerned they are out to molest my kids. I do think there's a genuine risk that predators could use a choose-your-bathroom approach as a method of getting access to victims, but I'm not sure whether that makes sexual predators more dangerous than they already are (and both adults and children will remain at vastly higher risk from people they know and associate with voluntarily). But here's the thing: in viewing the situation that way, I'm fighting against what our culture is screaming at me to think.

Our kids are much safer than they've been in generations, but our culture relentlessly demands that we be terrified for their safety — specifically including their safety from "stranger danger." The very media outlets that will spend today suggesting that you're bigoted and ignorant if you worry about "a man in my daughter's bathroom" will tomorrow go back to making money by scaring the living shit out of you about how your daughter is in constant peril from kidnappers and rapists and child molesters and crime, crime, crime. The culture that tells you today that your fear is irrational will tomorrow return to telling you to embrace fear you can't rationalize. This message isn't all law-and-order, either. The leftward-leaning side of the culture telling you today that you're a bigot for fearing rape in a Target bathroom will return tomorrow to telling you you're living in a rape culture and that you ought to be accepting of the stories, insights, and fears of the people who face that culture. In short, having long refused to hold you accountable for your fears, and having stoked them and encouraged you to indulge them, the culture is now abruptly demanding that you justify them logically. That strikes me as unfair.

Uncritical fear is a habit of the mind. You can't cultivate it for generations then turn it off like a light switch. It has consequences. You might not like all of them. Sometimes the habit of uncritical fear is going to exacerbate prejudice and ignorance. Don't like it? Fight it on a global basis, not a case-by-case basis. Question fear.

The worst responses to this situation have demonstrated utter inhumanity and lack of compassion for transgender people. That's unforgivable. But in some cases, people are being denigrated for acting the way they're taught to act. I think we could find better ways to persuade 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.