Ohio Judge Tim Grendell Is Popehat's Censorious Asshat of 2015

The votes are in. With a commanding lead of 10.2% over the nearest challenger, Ohio Judge Tim Grendell is Popehat's Censorious Asshat of 2015.


Congrats, Judge Grendell.

Honestly Grendell wasn't my choice. But I can see how he won: he's emblematic of the vapid pettiness of power. Grendell abused his contempt power in a fit of pique at insignificant criticism and offered smug Youtube-commenter-level justifications when challenged. Like many censors, he wraps himself in the First Amendment when it suits him. Electing Tim Grendell isn't about just Tim Grendell; it's about how many censorship stories are the result of authority conferred upon mediocre minds and small spirits. Never stop fighting them.

Jessica Valenti Calls For Jailing of Critics Of War And The Draft

Jessica Valenti of The Guardian thinks that, just as we jailed people who protested and criticized the draft during World War I, we should be able to jail people who release unflattering videos about Planned Parenthood. Both, she believes, are justifiable.

Well, she doesn't say that explicitly. But that's the necessary implication of column today in The Guardian, in which she says that releasing undercover videos about Planned Parenthood should not be protected as free speech.

Freedom of speech is one of America’s most cherished rights, but we’ve always had limits on what’s acceptable: in 1919, the US supreme court ruled that the right doesn’t apply to speech that incites action that would harm other people.

At the time, the example presented by the court was that falsely yelling “Fire!” in a crowded theater doesn’t count as protected speech.

Like many people who favor censorship but have a cookie-sheet-shallow grasp of its history, Valenti is misquoting Oliver Wendell Holmes dropping a rhetorical aside in Schenck v. United States. Holmes invoked that image to justify the prosecution and imprisonment of a man who criticized and questioned the draft during World War I. Of course, in the century since, American courts have abandoned Holmes' sloppy and unprincipled stand, narrowing the "incitement" exception to intended to and likely to cause imminent lawless action. But Valenti speaks approvingly of the original ruling because, in her mind, it justifies censoring speech she doesn't like.

Just as she misleads her readers about history, Valenti misrepresents the present. She suggests that a federal judge in the Northern District of California prohibited the distribution of the Planned Parenthood videos because they posed a risk of danger to clinics. "Now, in the wake of the release of secretly taped and deceptively edited videos of abortion providers, a judge has issued a temporary restraining order because of the very real threat of violence that the videos pose." Valenti either doesn't understand the legal issues or is lying about them. In the Northern District case, the National Abortion Federation learned from the mistakes of Stem Express and explicitly couched their lawsuit and injunction request against the defendants in terms of breach of confidentiality agreements and fraud, not wrongful content. As Eugene Volokh explained, such content-neutral grounds may support prior restraint on speech, because they aren't about the content of your speech, they're about enforcing your promise not to reveal the information you're revealing.

To secure an injunction, a plaintiff must show — among other things — that they are likely to prevail on the merits of the suit and that the "balance of hardships" weighs in their favor. The NAF did not invoke the threat of violence as evidence that they would prevail. Instead, they argued that they would prevail because the defendants fraudulently obtained access to NAF events and violated confidentiality agreements. Only then did they argue that the balance of hardships was in their favor because of the atmosphere of threats and violence against abortion providers. The judge's temporary restraining order did not say that NAF was entitled to prior restraint because the risk of violence allows prior restraint. Rather, the court said that NAF had shown it would prevail on its substantive claims of fraud and breach of confidentiality agreements, and that the threats of violence went to the balance of hardships. Valenti is misleading her readers.

Valenti asserts that the Planned Parenthood undercover videos have caused violence against Planned Parenthood clinics. The only evidence she cites are the statements of the crazed and evil Colorado shooter. Valenti asserts that the videos are "secret" and "deceptively edited," but she does not explain how we know that the "deceptive" parts are what (allegedly) incited threats and violence, as opposed to the parts of the videos that are admittedly true.

Valenti's goal is clear: a broad, unprincipled rule that would punish rhetoric she doesn't like:

The frenzied language surrounding the video’s release – including out-and-out lies on national television by Republican presidential hopeful Carly Fiorina – has stoked harassment and violence. And though preventing the release of more footage may not stop lies and violent speech, it could help curb it and would send the message that anti-choice activists will not be allowed to spread lies without consequence.

Some social controversies do lead to death threats and violence. Both are utterly unacceptable; I wish that more political death threats were investigated and punished. But note that Valenti's eager advocacy for censorship is not tethered to illegally recorded videos or misleading videos or even videos with explicit lies: it's an explicit call to censor political speech that makes people mad, whether or not it's intended or likely to cause imminent violence. It's an vague call for someone in the government — perhaps people who agree with Valenti? — to decide what bits of political rhetoric and hyperbole are "lies" and suppress political speech accordingly.

Everyone who reads Jessica Valenti's column and believes it is now stupider about First Amendment law. Remember: free speech has enemies. Fight them.

FTC Sues Weight Loss Company Roca Labs Over Gagging Customers

You may recall Roca Labs, the "no surgery" weight-loss food supplement company that really hates being criticized — so much so that they entice their consumers1 to agree to a clause that prohibits them from saying anything negative about the company.  Roca Labs is serious about this clause, using it as a basis to sue (or threaten to sue) a number of critics.

Well, for Roca Labs, things just went from bad to the FTC is suing us in the middle of Florida bad.

[Read more…]

Lead Us Not Into Temptation

Imagine a controversial feminist, much maligned for incendiary rhetoric about gender relations. Scheduled to make a speech to like-minded people in some bastion of conservatism, she is approached by male critics, doused with several drinks, and pursued down the street by an angry, shouting crowd, quite plausibly out to do her physical harm.

This scenario shouldn't be hard to imagine; outspoken women of all political stripes get death threats and abuse all the time. Most of us would condemn it. Most of us would be dismayed by the attack on our hypothetical feminist.

Yet too many of us are willing to cheer when the person doused with drinks and pursued down the street is saying things we find to be horrific and evil.

Take the oozing pustule Daryush Valizadeh, better known as Roosh V. Roosh — whom we have mocked before — is thoroughly awful in every way. He's a vocal anti-Semitic conspiracy theorist, a proud rapist of women too drunk to consent, and generally a grotesque dehumanizer of women. He wrote a piece suggesting that rape should be legal on private property. Though he now claims it was satire, it's a testament to his persona that it's perfectly plausible that he meant it literally. At the very least, it's satire in the Ann Coulter sense, meaning that he wrote what he thought and then just punched it up a little bit.

Naturally he's controversial. Just as naturally, he has fans. Nobody ever went broke telling folks they're right to hate the people they already hate, and that all their ills are the fault of the people their foes. Roosh planned a Canadian tour, which predictably was met with a petition to deny him entry to Canada. In other words, people used their free speech to petition the government to use force and state power to exclude someone based on his speech. That's a worthy subject of its own post, but put it aside for now.

While in Montreal, out in the city looking for women to whom he could be a repulsive tool, Roosh had several drinks thrown on him and was pursued down the street by an angry group shouting obscenities.2 Many responses have been amused, triumphal, or approving.

It's beyond my modest abilities to feel empathy for Roosh; I won't pretend to. There is in my gut, in my lizard brain, a visceral joy at seeing him humiliated and threatened.

But we try not to order society via our lizard brains, and that's a good thing. Now, if we were to govern by my lizard brain, that would be perfectly acceptable, because my deep-seated hates and fears and instincts are all reasonable and proper. The problem is all those other damn lizard brains out there, worn by lunatics with different hates and fears and instincts. Roosh has a lizard brain too, and so do the losers willing to pay sixty bucks to hear him talk about how evil non-plastic women are. When we unleash the lizard brains — when we give into the temptation to ignore the distinction between speech and assault, between insulting and attacking — we will find to our great regret that the majority of lizard brains don't work like the ones we see on our carefully moderated Twitter feed. Most lizard brains are really fucking scary. For every lizard brain cheering when someone we hate gets chased down the threat by a screaming mob, there's two our three lizard brains ready to cheer when that happens to someone we agree with. I am more afraid of the consequences of normalizing and condoning this behavior than I am gleeful about the humiliation of an awful person.

I'm not saying you shouldn't revile Roosh. I'm not one of the people saying we need to respond gently to Roosh so his speech won't be chilled. Quite the contrary. Revile away. But keep your hands to yourself. Drench people in words, not beer. Let your words pursue them down the street.

Yes, I know. This is "concern trolling" or "slippery slope fallacy" and lack of perspective and sympathy for the devil and so forth. But go out unto the internet and look around and see the freaks and scum and extremists. Then come back and look me in the eye and tell me it's a good thing to encourage that crowd to react to speech like this.

Donald Trump's Lawyers Don't Know Or Don't Care What Defamation Is

Spanish-language network Univision has cancelled its telecast of the Miss America pageant in the wake of Donald Trump's characterization of Mexicans, and Trump has now sued Univision in response. The lawsuit, filed in state court in New York, is here.

I won't opine on Trump's contract-related claims without reading his agreement with Univision. But Trump and his lawyer, Jeffrey L. Goldman of Belkin Burden Wenig & Goldman LLP, have also included a defamation claim. As befits Trump, the claim is loud, vulgar, and stupid.

The defamation claim arises from Univision President of Programming and Content Alberto Ciurana using Univision's Instagram account to post photos of Trump and mass murderer Dylann Roof side by side with the words "no comments." Ciurana was no doubt thinking of Trump's characterization of Mexican immigrants:

When Mexico sends its people, they’re not sending their best. They’re sending people that have lots of problems. They’re bringing drugs. They’re bringing crime. They’re rapists.

Trump claims that Univision and Ciurana have broadcast false statements about him, and demands $500 million in recompense. But the defamation claim itself doesn't specify what false statements Trump is upset about; it only refers back to the factual recitation of the complaint. That section, in turn, only states that Trump made "insulting remarks about Mexican immigrants" and vaguely refers to (without printing or describing precisely) the Instagram post. Remember: vagueness in defamation claims is the hallmark of meritless thuggery.

As Eric Turkewitz points out, Trump's defamation claim is sanctionably frivolous. Ciurana's post wasn't a potentially actionable false statement of fact. It was a satirical statement of opinion — a hyperbolic assertion that Trump's actions show him to be a bigot. Calling someone racist based on known and disclosed facts is classic opinion protected by the First Amendment, not a provably false statement of fact that can be defamatory.

Trump's defamation claim also plays into the vapid modern narrative that vigorous criticism impairs First Amendment rights. Trump and his lawyers refer to "Univision's attempt to suppress Mr. Trump's First Amendment rights and defame his image," referring back to the Instagram post. In the same breath, they complain of "Univision's dubious efforts to create a false narrative." Trump's speech is protected and should be lionized; speech criticizing it is illegitimate and unprotected. Trump's lawyers sometimes make this very stupid argument within the same sentence:

Univision, in an obvious attempt to politicize the situation and suppress Mr. Trump's right to free speech, including his views on both trade and illegal immigration along the U.S.-Mexican border, has made a concerted effort, upon information and belief, in collusion with others, to wage war against Plaintiffs in the media.

I sympathize with attorney Jeffrey L. Goldman. Being Donald Trump's lawyer must be as tiresome, grotesque and demeaning as being his inadequately-supplied anus bleacher. But no matter how freakishly swollen a client's ego, an ethical lawyer is supposed to refrain from filing vexatious publicity-seeking claims. Goldman failed at that ethical obligation. Shame on him. And Trump? The man clearly lacks the capacity for shame.

Ares Rights, Bless Its Heart, Continues Bumbling Attempts At Censorship

Last summer I wrote about Ares Rights, a nominal "anti-piracy" firm that acts as a small-time legbreaker for various South American governments. When we encountered Ares they were trying to scrub discussions of Ecuador's spying practices through bogus DMCA notices. More recently Ares Rights abused the DMCA to suppress reporting on Ecuadoran corruption.

Now — because the internet is all about shoving everything up its own ass, as Jeff Winger would say — Ares Rights is sending out frivolous DMCA demands trying to silence discussion of its use of frivolous DMCA demands. Ares Rights responded to the Electronic Frontier Foundation's blog post about their abuse with, as Adam Steinbaugh reports, sending a DMCA notice demanding removal of the blog post. If that's not meta enough for you, now Ares Rights has issued a DMCA notice seeking to take down Adam Steinbaugh's blog post discussing their DMCA notice targeting the EFF's blog post discussing their prior DMCA notices.

It's not clear what Ares Rights hopes to accomplish. Their DMCAs will fail. This won't slow coverage. Trying to brush off the EFF or Steinbaugh with a DMCA notice is like trying to get a dog to stop humping your leg by petting it and feeding it bacon. Maybe they bill by the hour, even for patently ridiculous tasks? Maybe they are trying to convince their Ecuadorian masters that they are doing something, anything? Maybe they are just really very bad at their jobs? Stay tuned to find out.

Meanwhile, maybe you could go to their Facebook page and tell them what you think.

Edited to add: Ares Rights is deleting comments on their Facebook page, but they can't delete reviews here.

Adam Steinbaugh has responded to the DMCA notice.

Think That Employee Harassment Complaint Is Too Stupid To Take Seriously? Just Write Your Check To Me Now.

Last week some writers at Jezebel made a public complaint about its parent, Gawker Media:

For months, an individual or individuals has been using anonymous, untraceable burner accounts to post gifs of violent pornography in the discussion section of stories on Jezebel. The images arrive in a barrage, and the only way to get rid of them from the website is if a staffer individually dismisses the comments and manually bans the commenter. But because IP addresses aren't recorded on burner accounts, literally nothing is stopping this individual or individuals from immediately signing up for another, and posting another wave of violent images (and then bragging about it on 4chan in conversations staffers here have followed, which we're not linking to here because fuck that garbage). This weekend, the user or users have escalated to gory images of bloody injuries emblazoned with the Jezebel logo. It's like playing whack-a-mole with a sociopathic Hydra.

The writers further complained that they had repeatedly informed Gawker Media of the problem, but higher-ups failed or refused to do anything about it. A couple of days later, the writers announced that Gawker Media had responded and was taking steps to deal with trolls barraging them with rape porn.

This complaint was ridiculed in some circles. No, I won't link them. The ridicule seemed to be based on the propositions that (1) it's silly to think that Gawker should be responsible for what some third-party troll is doing to its employees, and (2) it's silly to be upset by that sort of thing.

This is a good example of the phenomenon I like to call "bless your heart for thinking that, but it's not the law, dipshit."

American employers are, in fact, responsible for taking reasonable steps to protect their employees from racial or sexual harassment by third parties. This is the example I use when I train companies on sexual harassment prevention: if the UPS guy is constantly and creepily hitting on your receptionist, you need to do something about it. You may think that it is outrageous that this is the rule. Cool story, bro. That's what the law is, and if you employ people or advise anyone who employs people, you're a fool to ignore it. Here's how the United States Court of Appeals for the Fourth Circuit — hardly a bastion of liberalism — recently summarized it:

Similar to the reasoning we set forth for employer liability for co-worker harassment, “an employer cannot avoid Title VII liability for [third-party] harassment by adopting a ‘see no evil, hear no evil’ strategy.' “ Ocheltree v. Scollon Prods., Inc., 335 F.3d 325, 334 (4th Cir.2003) (en banc). Therefore, an employer is liable under Title VII for third parties creating a hostile work environment if the employer knew or should have known of the harassment and failed “to take prompt remedial action reasonably calculated to end the harassment.” Amirmokri v. Baltimore Gas & Elec. Co., 60 F.3d 1126, 1131 (4th Cir.1995) (quoting Katz v. Dole, 709 F.2d 251, 256 (4th Cir.1983)) (internal quotation marks omitted) (applying this standard to co-worker harassment).

In that case, the Circuit overturned a trial court judgment for the employer, finding that there was sufficient evidence to go to trial on the employee's complaints that an asshole customer had created a hostile environment and the employer didn't do anything about it:

Applying this standard here, we conclude that a reasonable jury could find that Dal–Tile knew or should have known of the harassment. Here, Freeman presented evidence that Wrenn, her supervisor, knew of all three of the most major incidents: the two “black b* * * * ” comments, and the “f* * *ed up as a n* * * *r's checkbook” comment. Wrenn was present for the first “black b* * * * ” comment, which Freeman complained about to Wrenn afterward. Freeman also complained to Wrenn specifically about the other two comments from Koester almost immediately after they occurred.5 When Freeman complained to Wrenn about the “f* * *ed up as a n* * * *r's checkbook” comment, Wrenn “scoffed and shook her head and put her head back down and continued on with trying to pick the nail polish off of her nails.” J.A. 102. When Freeman complained about the second “black b* * * * ” comment, Wrenn simply rolled her eyes and went on talking to a co-worker. J.A. 112. In addition to these most severe incidents, Wrenn was also present the time Koester passed gas on Freeman's phone and Freeman began crying and had to leave the room.

That supervisor, Wrenn, reacted rather like the critics of the Jezebel writers: "why, exactly, is this an issue we should care about?" That attitude was rather expensive for the defendant company in this case.

Or maybe you think that trolls constantly posting rape porn isn't severe or pervasive enough to create a hostile working environment. No, thanks, I don't think I'll borrow your laptop. Everyone is entitled to their own opinion, but everyone isn't entitled to the law being what they think it is. Minimal exposure to pornography isn't severe or pervasive. If someone puts up a centerfold and you complain and it's gone the next day, courts wont' find that to be sufficient to create liability. But being constantly exposed to pornography calculated to upset you — meant to troll you? That's probably over the line. "Although most cases involving pornography in the workplace include other elements such as threatening or offensive remarks, see, e.g., Waltman, 875 F.2d at 471, there is no necessary reason why the presence of pornography alone could not create a hostile work environment so long as the pornography was sufficiently severe or pervasive." Adams v. City of Gretna, 2009 WL 1668374 (E.D. La. June 12, 2009).

Let's put it this way: Gawker Media made the wrong choice when they ignored complaints, and the right choice when they started taking steps reasonably calculated to address the complaints. I'm not certain that the writers would win a lawsuit if Gawker had continued to put its head in the sand, but if I had to choose the stronger case, I'd choose the writers.

Preventing harassment is, for whatever reason, a subject that upsets people. Go ahead, be upset. Say it's ridiculous! But part of my job is training companies to minimize liability risks, and I'm here to tell you: if you don't take it very seriously as an employer, you might as well start writing checks to litigators right now.

Monday Schadenfreupdates (Now Updated!)

Why do bad things happen to good people? I can't tell you that. But I can tell you that bad things happen eventually to bad people.

For instance:

1. Perhaps you remember David Bell, chief fraudster of the U.S. Telecom fraud ring discussed in my "Anatomy of a Scam" series. He's had criminal charges pending in San Bernardino County since 2011. Recently he entered a no contest plea to two counts of grand theft auto, plus enhancements for priors, thus not admitting guilt but admitting that the government could prove those particular counts against him. He'll be sentenced in September. And what about the feds? Be patient . . . .

2. You probably also remember Dennis Toeppen, the oddly truculent head of bus company Suburban Express, who liked to threaten online critics with lawsuits and heap them with abuse. Ars Technical reports that Toeppen was arrested on two misdemeanor counts of electronic harassment. I'd reserve judgment until seeing the basis for the case; many cyberbullying and cyberstalking statutes are ridiculously overbroad and a violation of the sacred First Amendment right to be a turd. Ars Technica points out a recent Yelp thread in which Toeppen, true to form, lashes out at bad reviewers; it's bad business, but almost certainly protected speech.

3. The Prenda Law gang, about whom I've written a word or two, suffered another setback last week in the United States Court of Appeals for the D.C. Circuit. On May 27th, the D.C. Circuit overturned a trial court order permitting AF Holdings — a Prenda shell — to take early discovery from Cox Communications of the accounts associated with various IP addresses. The decision did not go well for Team Prenda. The D.C. Circuit recognized the various tactics criticized by other courts across the country, savaged AF Holdings' theories of why they would have personal jurisdiction over nationwide downloaders in D.C., and undermined Prenda's arguments about why they could combine multiple defendants in the same case. The court sent the case back to the trial court to see whether sanctions were appropriate for AF Holdings' notorious use of an allegedly forged signature on a copyright assignment. Protip — if a United States Court of Appeals refers to you as "law firm," with scare quotes thus, you're gonna have a bad time.

The wheel turns slowly, but it turns.

Update: Now With More Schadenfreude!

4. In Oregon Troy Sexton — who responded to the Popehat Signal and won an anti-SLAPP motion on behalf of an anti-telemarketing blogger sued for defamationThatLeftAMark has been awarded around $41,000 in fees and costs against the plaintiff, attorney F. Atone Accuardi. Keep those fee awards against censors rolling in, people.