Federal Court Dismissed Thoroughly Evil Litigation Against "Comfort Women" Memorial

Back in February I wrote about a rather despicable lawsuit filed by Japanese-American plaintiffs seeking to remove a statue in Glendale, California commemorating the "comfort women" — women enslaved as prostitutes in World War II by Imperial Japan. The plaintiffs argued that Glendale's statute interfered with the United States' diplomatic relations with Japan, thus violating the Supremacy Clause. I'm pleased to report that United States Judge Percy Anderson — not a judge you want yelling at you, for what it is worth1 — has dismissed the case without leave to amend.

The plaintiffs, you might recall, were represented by megafirm Mayer Brown. This resulted in really awful publicity from Mayer Brown, not just from pipsqueaks like me, but from Above the Law and Marc Randazza. Mayer Brown soon substituted out of the case in favor of a rather smaller firm. Meanwhile, defendant the City of Glendale – ably represented by their City Attorney's Office and by competing megafirm Sidley Austin — filed a motion to dismiss the case, arguing that the plaintiffs were clearly incorrect in arguing that Glendale's comfort women statute interfered with the United States' international relations. The motion is top-notch work; I've uploaded a copy here.

In his ruling, Judge Anderson found that the plaintiffs had not alleged any specific facts — as opposed to conclusions — supporting the notion that a city's monument could interfere with national diplomacy. Absent such facts, the complaint failed. Judge Anderson echoed the argument made by many critics that the plaintiffs' theory would make a wide swath of public monuments vulnerable to litigation:

Any contrary conclusion would invite unwarranted judicial involvement in the myriad symbolic
displays and public policy issues that have some tangential relationship to foreign affairs. For instance,
those who might harbor some factual objection to the historical treatment of a state or municipal
monument to the victims of the Holocaust could make similar claims to those advanced by Plaintiffs in
this action. Neither the Supremacy Clause nor the Constitution’s delegation of foreign affairs powers to
the federal government prevent a municipality from acting as Glendale has done in this instance . . . .

Judge Anderson therefore dismissed the federal claim and declined to exercise jurisdiction over the remaining state law claim. He also found that the City's anti-SLAPP motion was without merit because it was directed to a federal claim: generally speaking state anti-SLAPP statutes can only be used against state claims. That ruling spared Judge Anderson the more difficult question of whether a municipality has speech rights covered by the anti-SLAPP statute.

This is the right result. Plaintiff's claim on behalf of reactionary Japanese political interests were only the appetizer; the main course would have been suits against many Armenian Holocaust memorials, brought on behalf of the Holocaust-deniers of Turkey. Citizens, through their local governments, ought to commemorate history as they see fit.

"Is Anybody Down" Update: The Wheels Grind Slowly, But They Grind

Late last year I wrote about the vile humiliation-porn and extortion website "Is Anybody Down?" and its thoroughly creepy and sociopathic founders Craig Brittain and Chance Trahan. I wrote about how they engaged in a mail and wire fraud scheme by inventing a fake lawyer "David Blade III" to whom victims could pay to have their pictures and information taken down, and how Craig Brittain — who fancies himself a champion of free speech — tried to abuse the DMCA to get posts about him taken down. My posts on the subject are collected here.

I haven't written about them since them, but they've remained in the news. Adam Steinbaugh has been doing good work keeping track of them. Craig Brittain has been on a sort of national douchebag tour, showing up on blogs all over and television and newspapers. Trahan, by contrast, has been trying to distance himself from the whole enterprise and, so far as I can tell, set up a "not competent to stand trial" strategy. Civil and criminal disputes are generally not settled by freestyle rap battles.

Some have been frustrated by the fact that, aside from infamy and the ugly reality of living every day as themselves, Brittain and Trahan seem to have escaped consequences to date. People frustrated by that aren't used to the law's delay. The wheels grind slowly, but my friends, they do grind.

Civil attorneys are gathering and interacting with victims. Meanwhile, CBS Denver reports that the federal government has taken an interest.

Last week, a staff attorney for the federal agency contacted CBS4 with numerous questions about the CBS4 investigation. She characterized the inquiry as a “preliminary investigation” and asked that her name and agency not be revealed until a decision had been made on whether to go forward with a full blown federal investigation.

. . . .

“It’s not good for him,” she said of her agency’s interest in Brittain’s Internet activities. She said if her agency presses forward, they would likely seek “injunctive relief” to take down the website, but she conceded that would likely take months.

From that information, based on my experience, I suspect that the agency in question is the Federal Trade Commission. You might be disappointed that it's not a local United States Attorney's Office pursuing criminal charges. Don't be. First of all, a civil suit by the FTC is often the vanguard of a later criminal investigation by the local U.S. Attorney's Office. Second — and this is a Very Bad Thing not just for Brittain and Trahan, but for American justice — FTC lawsuits tend to yield the most grotesque parody of due process you're likely to see in a federal civil proceeding. As I've said before, I haven't seen any criminal clients — even ones accused of terrible things — screwed the way people targeted by the FTC get screwed. Typical consequences include draconian preliminary injunctions issued based on half-assed government requests, global asset freezes, and offensively perfunctory proceedings. Plus, federal and state criminal authorities wait in the wings to glean what they can from the information produced in the case.

So: the wheels are grinding. Watch them grind. Do Brittain and Trahan "deserve" it? Everyone accused of wrongdoing deserves due process. But in deciding how to feel about this, consider Adam Steinbaugh's latest post, in which he examines the allegations in a restraining order proceeding against Brittain back in 2005:

According to records provided by a Colorado court, Brittain’s ex-girlfriend (who I am not naming) alleged that after she broke up with him online, Brittain took control of one of her Yahoo accounts and began posting her phone number and address in a chat room, suggesting sexual acts. At about 7 in the morning, a man Brittain’s ex did not know, identifying himself as “Nate,” showed up at her door. ”Nate” explained that he had talked with someone he thought was Brittain’s ex-girlfriend an hour earlier. Presumably, “Nate” was not there to have breakfast.

Respond With Pledges: Westboro Baptist Church Visits Los Angeles

The members of the infamous Westboro Baptist Church are coming to Los Angeles and planning to picket at Santa Monica High School.

WBC will picket Santa Monica High School to tell these students the Gospel truth which their parents, teachers and preachers try desperately to hide from them. Every adult in their lives has taught them that they can disobey God and still go to Heaven, that it is OK to be gay, and that God is not cursing this doomed nation for the sin of embracing sodomy. Believing these lies will send these children straight to Hell so WBC must deliver the only message of hope and redemption they will ever receive: that you must repent and obey, for there is no other way!

We come with weeping and sorrow that the parents, teachers, preachers and leaders of St. Louis and of that school, hate their children and have stolen all hope from them. They are without God in this earth. How horrible and sad is that?!

They are also protesting at Malibu Presbyterian Church, Waveside Church in Malibu, and Our Lady of Malibu, all for not being sufficiently anti-gay.

My response will be governed by the good example of Congregation Beth Simchat Torah of New York — I'm going to donate to causes of decency and justice for every hour that the WBC people protest at these places.

(They're also protesting at the Oscars. I think the stars can arrange their own donations. Also, sweet merciful Lord those things drag on forever. I'd be bankrupt.)

For every hour they protest at the high school or the churches, I'll be donating fifty bucks to a charity that provides support and love and affirmation to gay and lesbian teens — especially organizations that provide outreach to troubled and suicidal and bullied teens. Here are the charities I am looking at:

The It Gets Better Project
The Trevor Project
Colors Youth
LA Gay And Lesbian Center

I don't know if the WBC people are sincere, or money-seeking trolls. I don't particularly care; I don't imagine the impact on a teen at Santa Monica High School would be any different.

Will you join me? If so, kindly announce your pledge here in comments, or on Twitter, or Facebook, or your favorite blog or forum, and spread the word.

That's not all.

For every hour the WBC protest at the school or the churches, I'm going to spend an hour reading and considering the viewpoints of people with whom I vehemently disagree on political and social and moral topics. It won't necessarily be on this topic. It won't necessarily change my mind on anything — though I hope it will educate me and sharpen my positions and help me articulate opposition to actual positions rather than my characterization of those positions. It's not going to make me a supporter of going to a school and gleefully telling the students there that they deserve to suffer. But considering the opinions of others, and acknowledging their humanity, is an act of defiance against the WBCs of the world.

Survivor: Kindergarten

Look, disruptive kids can be tough. Kids with special needs can be challenging, and the fact that you empathize with and want to address their special needs doesn't make it any less difficult when they act out in class.

However, if you utterly lack the ability to deal with kids, misbehavior, or special needs — and if you've been put on this planet without the empathy or common sense God gave a handful of gravel — maybe you ought not be teaching.

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