Arthur Chu Would Like To Make Lawyers Richer and You Quieter and Poorer

Arthur Chu, noted for being able to frame things in the form of a question and for being easily agitated, has launched very silly broadside against one of the most important American laws about the internet: Section 230 of the Communications Decency Act of 1996. Chu invokes Reagan, asking President Obama to "tear down this shield." He should have looked elsewhere in Reagan's oeuvre: "facts are stubborn things."

The core of Section 230 is simple: it says that a computer service provider can't be treated as the publisher or speaker of information provided by someone else. When you go on Facebook and say your neighbor strangles squirrels, your neighbor can sue you (assuming it's false) but not Facebook. I'm responsible for what I write on Popehat, but not for what you pack of gibbering malcontents puke up onto the comments. This doesn't protect sites that host stolen intellectual property — the Digital Millennium Copyright Act covers that. But it means that Facebook, and Twitter, and anyone who runs a blog or a forum or a site with comments, can't be sued over what visitors say there. The Electronic Frontier Foundation does not exaggerate when it calls Section 230 the most important law protecting internet speech.

Chu objects to this state of affairs because it makes it difficult to shut down speech he doesn't like. Some of the stuff he doesn't like — SWATTing, true threats, and genuine harassment — would be shunned by any decent person, and the perpetrators ought to face consequences. But Chu isn't focused on them facing consequences directly. He wants to be able to punish any site on which they post. He wants people to be able to sue Facebook, or Twitter, or any web site on the internet based on what visitors post there. Moreover, if you read his angry rant you may conclude, as I did, that he opposes more than just unprotected speech.

Chu airily waves away concerns that ditching Section 230 will make censorship easier. We have just the institution to sort the good claims from the bad, he says: lawyers and courts.

We have, here in the United States, a system by which wronged parties can seek redress from those who wronged them, and those who willfully enabled that wrong, without proactive control by government bureaucrats. It’s one that even ardent libertarians imagine as being part of how their ideal “small government” would work. And it’s a highly American tradition: one that’s been identified as central to American culture since the days of Alexis de Tocqueville.

I’m talking, of course, about lawsuits. Civil litigation. Bringing in the lawyers.

Yes, by all means, bring on the lawyers. Speaking as one of them — in fact, one who handles the sort of litigation at issue here — let me explain why this is stick-your-hand-in-the-blender naive.

The court system is broken, perhaps irretrievably so. Justice may not depend entirely on how much money you have, but that is probably the most powerful factor. A lawsuit — even a frivolous one — can be utterly financially ruinous, not to mention terrifying, stressful, and health-threatening. What do I mean by financially ruinous? I mean if you are lucky as you can possibly be and hire a good lawyer who gets the suit dismissed permanently immediately, it will cost many thousands, possibly tens of thousands. If you're stuck in the suit, count on tens or hundreds of thousands.

The suggestion that this system will ease the chaos that would result from the loss of Section 230 is nothing short of lunacy.

Let's take a look at some of the stories Popehat has covered so you can see how Arthur Chu's proposal would have changed the result. While you read these stories, evaluate Chu's central thesis — that what he is doing will protect the weak, the abused.

Angry comic book artist Randy Queen could sue the site Escher Girls because commenters there said things he didn't like about his improbably-breasted comic girls.

Angry lawyer Carl David Cedar could sue Scott Greenfield for comments on Scott's blog making fun of him.

The infamous Prenda Law could sue Reddit, TechDirt, Twitter, Facebook, anyplace that held the flood of critical comments about its conduct.

The infamous Charles Carreon could sue every site on the internet on which commenters criticized them — which is, effectively, all of them.

Ol' seemed-crazy-at-the-time-but-in-2015-terms-almost-normal Jack Thompson could have pursued his claims against Facebook for people making fun of him there.

The creepy AIDS denialist could have sued not just the guy exposing him as a fraud, but the webhost the blog used.

And there are so many more. Arthur Chu angrily and oddly tries to portray Section 230 as protecting bigoted white men at the expense of women and minorities, but that's nonsense. Section 230 protects every one of us with a blog or web site directly. It also protects everyone who uses the internet indirectly, because it makes user-input websites feasible.

Section 230 doesn't keep sites from being sued for visitor comment ever. There are still frivolous suits ignoring the law. What Section 230 does is deter most baseless lawsuits against the site, and offer a quick-and-painless-as-possible way out of the those frivolous lawsuits that get filed. With Section 230, if someone sues you for visitor comments, you're funding a motion to dismiss. Without it, you're funding an entire lawsuit defense.

How would getting rid of Section 230 impact the internet? Let's consider:

1. Every single web site out there would have to monitor every single visitor comment or forum post or Tweet or Facebook update — or face liability if the item is actionable. Unless you're running a blog that gets a couple of comments per day, it's impossible to do that, practically. Also, the site doesn't have the knowledge to evaluate whether the statement is actionable. If I post "Joe Blow ran over my cat" on your blog, do you need to investigate before you approve the comment and publish it? Also, are you a lawyer? How are you going to evaluate what visitor comments are potentially actionable? If you're a millionaire you could hire lawyers to do it, but that's an expensive hobby. Hope you're up to speed on the distinction between fact and opinion, parody and defamation, criticism and harassment, and so forth. Maybe the best thing would be never to approve a comment that could be offensive to anyone ever. Good thing modern Americans have such thick skins!

2. Sites will take down visitor comment when someone demands it, because it's too expensive not to. Result: it will become easy to get any content mentioning you, or your actions, or your business taken down. Yelp? Dead as a doornail. Any site allowing users to say anything remotely critical about identifiable people? Unusable. Would Arthur Chu like to call out particular named harassers and talk about them? He's going to need to spraypaint it on a big rock, because at the first complaint his platforms are going to take it down.

3. Arthur Chu seems to think that removing Section 230 will help end online harassment, because forums and sites and blogs will take down nasty things said about people he supports. Maybe. But does Arthur think that harassers won't just as quickly use this new tool he's kindly given them? Does Arthur have a blog? If he does, folks can use anonymous proxies to post mean and nasty criticism on that blog against, say, me — and then I can rush in and sue Arthur. "But I didn't post it! It wasn't up that long! How could I know it was false? It's not really actionable harassment, is it?" Great arguments Arthur. You've got a real shot with those at the summary judgment hearing 18 months and $150,000 from now. Do you really think, Arthur, that the scumbags who threaten and harass and abuse and SWATT people will scruple for a moment about abusing your new less restrictive legal system to harass women and minorities for their online expression? Then you're a damned fool.

What's the result? Web platforms that take down content the minute anyone demands it. The death of any platforms discussing inherently controversial and anger-provoking things. And do you think people abuse complaint systems to shut up their enemies now? Just you wait.

And the flood of lawsuits! Oh, the lawsuits. See, lawsuits are about leveraging the expense and brokenness of the system to shake money out of people. Even if you figure out who HurrHurrFeminitzSuck on Twitter is, he's probably a dude living out of a storage locker. No money to be gained suing him, especially if his comment is close to the line between defamation and non-defamation. But if you can sue Twitter, too, when he talks? Deep pockets ahoy. Now it makes sense to sue, because even if you have a shitty case on the merits, Twitter may settle for a few thousand bucks to avoid the cost of protracted litigation. There are lots of idle lawyers out there, friend. Do you have a house? If so, you better not have comments on your blog.

Should threats and harassment and abuse be addressed? Absolutely. Convince private companies like Twitter and Facebook to offer better tools, and to expel bad actors. Vote with your feet from one platform to others that handle abuse better. Work together to track and whenever possible stomp the bad actors.

But eliminate Section 230 because you think the legal system is made of rainbows and children's laughter? Ridiculous.

Internet harassment and free speech are serious issues, but Arthur Chu is not a serious person.

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…]

A Few Comments on the UN Broadband Commission's "Cyber Violence Against Women And Girls" Report

Update: Further information suggests I was far too benefit-of-the doubt here, which is what happens when you write fast and when you generally despise some of the people involved. Some of this is still right, but regard the conclusions and characterizations with skepticism. Taking a second look. See, e.g., the fact that they cited this [footnote 118] for the video game discussion I cite below. When I'm wrong I'm wrong. Will revisit.

The United Nations Broadband Commission For Digital Development has released a new report called "Cyber Violence Against Women And Girls: A World-Wide Wake-Up Call." You can find it here.

I have a few comments about it from a free speech advocate's standpoint. I am not going to talk about it from a cultural standpoint. Any post here about gender-based harassment generates bad behavior, as I've long noted. I am aware that there is a political controversy over whether online harassment of women is understated or overstated, whether discussion of such harassment is a feminist plot to steal our precious bodily fluids, and so forth. My view is that online harassment of women is a problem and a legitimate subject of discussion, but I am uninterested in that discussion today. I'm interested in a discussion of the free speech implications of this report. If you are a person who feels that it would be morally wrong not to share your views on those subjects whenever physically possible, and that it would be like unto fascism for even one post not to showcase those views, please go elsewhere to one of the innumerable other venues for that discussion. Thank you.

Any Report From Any UN Body About Speech Warrants Scrutiny

I don't trust the UN on free speech issues. You shouldn't either. In a world where Iran wins a seat on the UN's Commission on the Status of Women, people who care about women's rights should also be skeptical. Pro-censorship forces continually pressure the UN for international laws and norms restricting speech — for instance by demanding laws outlawing blasphemy. Allow me some unabashed American exceptionalism: that's a bad thing. The United States' vigorous approach to protecting free speech and rejecting blasphemy laws is good, and foreign norms that encourage blasphemy laws often used to persecute religious and ethnic minorities are bad.

The UN's response to calls for censorship is mixed. Occasionally sensible officials have recognized the role of censorship (and especially blasphemy laws) in promoting oppression of the weak by the strong. But just as often the UN produces troubling rhetoric like this from the Secretary-General:

"Freedoms of expression should be and must be guaranteed and protected, when they are used for common justice, common purpose," Ban told a news conference.

"When some people use this freedom of expression to provoke or humiliate some others' values and beliefs, then this cannot be protected in such a way."

The UN also has a pattern of avoiding discussions of censorship that might offend member states and uttering windy statements about how freedom of expression must yield to various sensibilities.

So: I submit that a report by the UN on an issue touching upon freedom of expression deserves close scrutiny. The report does not require special scrutiny because it is about harassment, or the treatment of women: it requires scrutiny primarily because of its source.

Scrutiny Means Actual Scrutiny, Please

But "scrutiny" means actually reading the report and not relying on shrill and partisan summaries and characterizations.

I read the report with an eye towards evaluating what specific policies the Commission is advocating. Taken from that perspective, the report is more respectful of freedom of expression, and less aggressive about potentially censorious policies, than I feared.

Like any UN report — strike that, any report ever — this report contains a lot of nonspecific rhetoric. It also contains very troubling discussions of violence and threats against women, both online and off. They are worth consideration apart from the discussion of free speech issues.

General Concerns About How The Commission Views Free Speech

The report contains rhetorical references to the potential conflict between free speech and policing online conduct:

In the context of cybercrime, stakeholders, including the UN system have noted the need to balance rights. Groups such as APC have cautioned that in the name of spurious measures to “protect” women online we need to be weary of censorship, and that efforts should strive to “balance rights to privacy, freedom of expression and freedom from violence and harassment for all individuals in constitutional, civil and criminal law.”

That's a general value statement, not a policy. But it implies a non-American understanding of rights. It invokes Censorship Trope Five: balancing speech and other rights. Other countries take an occasionally ad-hoc "balancing" approach to speech — that in any particular circumstance whether speech is protected depends on whether the right to speak is outweighed by some other interest. The American approach recognizes categories of unprotected speech (like true threats) but forbids the government from "balancing" speech outside those categories. So: unsurprisingly, the Commission is taking an international approach to speech rather than the American one I support.

Concerns About the Broadband Commission's Specific Policies

I suspect some people will characterize the report as advocating censorship. That's a misleading characterization. There are UN reports that openly advocate for abandoning American-style free speech norms and "balancing" free expression with various rights. This isn't such a report; it's not advocating for broad speech codes. The report spends most of its time focusing on progress within existing frameworks. But it does have some proposals that trouble me as a free speech advocate.

The report proposes a "multi-level approach" to online threats against women, made up of "sensitization" (that is, changing cultural norms about what conduct is socially acceptable), "safeguards" (working with industry to develop methods of protecting people from online threats) and "sanctions and compliance" — where the action is.

Here's the parts that are worrying.

First, rhetorically, the report advocates a "zero tolerance for violence against women" mantra. I understand and share the anti-violence sentiment, but experience teaches that framing a response to a problem as "zero tolerance" leads to terrible results. That's not a problem with "women's issues," it's a problem with any perceived social ill. Telling people to take a "zero tolerance" approach effectively tells them to suspend critical judgment when addressing a problem. It doesn't lead to treating a problem seriously; it leads to treating a problem anxiously. When applied to something as complicated as the internet, that's potentially disastrous.

Second, the report advocates building relationships with private companies and helping them to develop methods to deter, stop, and report online threats. That's fine; private companies are private and are not bound by the First Amendment. Twitter is no more bound to tolerate online douchebaggery than Nordstrom is to let me shop naked. But the report suggests that the Commission (as one would expect) doesn't really grok private industry. It seems to envision a partnership of mutual values, as opposed to a partnership that persuades private industry that it is in their economic interest to prevent online threats and harassment. More alarmingly, the report seems to advocate government regulations requiring online platforms to take particular approaches to harassment prevention. The devil there could be in the details: regulations could easily amount to content-based censorship.

Third, I believe the report does not sufficiently consider how the industry measures it advocates can be used to suppress speech, including (perhaps even especially) women's speech. The call for more transparency in how online platforms implement anti-harassment programs is sensible. But nobody ever build an automatic system that internet users can't manipulate. Anti-harassment protocols will always be used disingenuously. That doesn't mean industry shouldn't try; it means there should be more critical thinking about whether they will help or hurt. I'm particularly concerned about pushing industry to unmask anonymous speakers more easily, a terrible idea that I think will more promote harassment than prevent it. The report refers approvingly to some such measures without, I think, adequate attention to their risks to free expression and to safety.

Fourth, the report makes gratuitous and controversial claims about the dangerousness of expression. Specifically, it is receptive (credulously, I submit) to the notion that there's a causal relationship between video game and movie violence and real-world violence:

Core roots of mainstreaming violence. There is widespread representation of VAWG in mainstream culture, including in contemporary and popular music, movies, the gaming industry and the
general portrayal of women in popular media. Recent research on how violent video games are turning children, mostly boys, into ‘killing zombies’ are also a part of mainstreaming violence. And while the presentation and analysis of this research is beyond the scope of this paper, the links to the core roots of the problem are very much in evidence and cannot be overlooked.

I'm not saying that proposition has no evidence supporting it, but at a minimum the evidence is controversial and subject to question. It's troubling that a UN report would present such a one-sided and frankly alarmist view of an issue so directly connected to speech.

Fifth, in reviewing various responses to online harassment, the report is insufficiently focused on the distinction between plausible laws and implausible laws, noting them both approvingly. But all laws are not alike. For instance, the report approvingly cites "revenge porn" laws. But some such laws are so badly drafted that their drafters have conceded defeat. In citing authorities, the report does not attempt to distinguish between advocates of revenge porn laws who attempt to frame laws that will pass constitutional muster and advocates who are effectively seeking to change legal and constitutional norms to accommodate their revenge porn laws. The distinction is meaningful, and the report's uncritical approach to content-based censorship proposals concerns me. Even when it appears to be rhetorical rather than substantive (like the introduction's puzzling reference to "blasphemous libel" as a form of violence against women), it's a danger sign.

Be Skeptical

The report is not the orgy of censorship that ideological enemies will claim. It's a thoughtful approach to a serious problem. But careful examination of any resulting policies is warranted.

Postscript: Scott Greenfield not unreasonably asks how the Commission defines violence or threats against women. I don't think it seriously attempts to do so. It lists some undefined subcategories of conduct that can be violence. This would be more of a concern to me if the report proposed specific laws against undefined violence. Once the Commission attempts a definition, or offers a specific policy that requires a definition, I'll critique it.

Let's Applaud Wesleyan's Student Censors For Honesty

Earlier this week I covered a tumult at Wesleyan, where students claimed to be silenced by a student newspaper op-ed they didn't like.

The student op-ed criticized the Black Lives Matter movement in a manner that strikes me as more bootlicking than racist. This yielded a cringing and cringeworthy apology from the Wesleyan Argus' staff (bad) and a vocal commitment to free speech by Wesleyan's President (good).

Some Wesleyan students have responded with a petition and list of demands, which 171 students and alumni have signed as I write this. Here's a hard copy in case it gets disappeared. Edited to add: looks like critics are editing it to satirize it, so look at the hard copy instead for an accurate view of what it looked like.

I like the petition. I like it because the students aren't pretending to be anything but censorious: it's honest.

The students signing the petition agree to "boycott" the Argus, "recognizing that the paper has historically failed to be an inclusive representation of the voices of the student body." So far, this is a call for responsive expression, which is fine. From there it gets scary. "Most specifically, it neglects to provide a safe space for the voices of students of color and we are doubtful that it will in the future." In context, it appears that "safe space for the voices of students of color" means "a newspaper that won't print anything that this particular group of students of color finds objectionable," an aim worthy only of our open scorn.

"This boycott includes recycling the Argus," the petition continues. What does "recycling" mean? It means taking and throwing away copies of a free student newspaper so that others can't read content you don't like, and it's a nationwide problem, as the Student Press Law Center documents. People who respond to student paper content they don't like by trashing the paper to suppress it are thug trash, and it's nice of them to sign a self-identifying petition.

The petition goes on to demand that Wesleyan defund the Argus until their demands are met. Those demands include "Monthly Report on allocation of funds and leadership structure" (that is, more intensive control of a newspaper by student government), "Required-once a semester- Social Justice/Diversity training for all publications (Via Elisa Cardona/SALD office)" (meaning mandatory ideological conformity training on publications via school administration), and "Open spaces dedicated for marginalized groups/voices if no submissions: BLANK that states: 'for your voice” on the front page" (meaning, quotas for expression by particular predefined groups, somewhat like the thankfully-abandoned and Orwellian-named Fairness Doctrine).

Bear this in mind: Black Lives Matter is an explicitly political movement with explicitly political goals. Many of those goals — like questioning and monitoring disproportionate police violence against young black men — are worthy. But the notion that there is only one correct way to think about a political movement is monstrous and un-American. Wesleyan is a private school; they can abandon basic notions of free expression and turn their school into a training ground for ideological conformity if they want to. But isn't it thoughtful of these students and alumni to say exactly what they want, without equivocation? They've thoughtfully provided a list of people never to hire.

"Your Speech Silences Me:" A Trope The Kids Learned From Us

As befits an old fart, I spend a lot of time ranting about how young people today are just terrible, particularly about freedom of expression. If I avoid being a cloud-shouting caricature, it's because I admit this is my generation's fault: young people are just adopting the awful values that we taught them.

Today's example is the notion that speech silences us.

Yesterday I mentioned a free speech tumult at Wesleyan University, where a student op-ed criticizing the Black Lives Matter movement led to controversy. Scott Greenfield wrote about the dispute as well, and we both picked on one particular student for saying that the op-ed ought to be censored because it "silenced" speech:

The biggest problem with treating this as a freedom of speech issue is that this speech actively silences other speech.

This proposition — "this isn't free speech, it's silencing speech" — is simply an iteration of Trope Six: "this isn't free speech, it's [other invented category]."

It's also something the student could have picked up from us — and by "us" I mean the community of adults who talk about politics and free speech. The student has applied the lesson to complain about "conservative speech," but could have picked it up from listening to people complain about "liberal speech." Our student has listed to people saying "you called me a racist and that stifles my free speech" and simply reworked it a bit to "you spoke like a racist and that stifles my free speech."

This shouldn't be a surprise. For years we've been indulging in the "Speech Is Tyranny!" and "criticism is censorship" tropes. We complain that "you can't say [x] any more," where [X] is some conservative viewpoint. What we mean is that we cannot say [x] without being criticized, perhaps in very harsh terms. We call it things like "systematic silencing":

Powers revealed that in "The Silencing," she focuses on the attack on free speech from the media and on college campuses.

"It's a systematic silencing that is going on," Powers said. "And they use the same tactics. I also am not talking about disagreement. I'm not talking about people being civil. I'm talking about these are people who will not have a debate. They will attack you: 'You are racist. You are misogynist.' It's never about what the actual issue is."

"And it's really impinging people's ability to debate issues, because there is no debate. They tell you there is no debate because you're a racist."

So. How can we really blame our angry Wesleyan student for using a rhetorical trope we have taught him?

I look forward to the protestations that's different. Surely not every cry "you're silencing me" is the same. But just as we should use critical thinking to evaluate this student's claim that speech silences him, shouldn't we also think critically about our own claims to be silenced by criticism and what we term "call-out culture"?

I may not buy the argument that the Black Lives Matter critique silences anyone (though I do find it nauseatingly bootlicking). But neither do I buy that it silences the author to tell him that it's ignorant, or racist. Rejecting the former but buying the latter seems to depend on a magical view of speech: that most speech encourages more speech except for a set of magically debilitating words (like "racist" and "sexist" and so forth) that destroy it. That purported dichotomy deserves scrutiny.

Imagine some examples. If I tell a gay person that they are outside of God's love and going to Hell unless they repent, and they call me a bigot, have I encouraged speech and they silenced it? If you're an HBD fan and tell black people that they are inherently intellectually inferior and they call you racist, have you encouraged speech and they've suppressed it?

To put it rudely, are we really buying the premise that being a dick encourages speech but calling someone a dick suppresses it?

I find that unpersuasive.

The War For Free Speech Laws, Hearts, And Minds Is Endless

I do not anticipate an end to the war for, or against, free speech in academia. Last week was a bloody one in that struggle.

In California, the Regents of the University of California had an opportunity to wave glorious banners of censorship, blow trumpets, and retreat from the field. Some committee or working group proposed a Statement of Principles Against Intolerance, a dog's breakfast of poorly-defined wrongthink that would be patently unconstitutional if made mandatory. The Statement had what amounted to a censorship-abjuring loophole: it said that it could not "be used as the basis to discipline students, faculty,
or staff," making it more a proclamation of feels than a rule.

But it does not appear that bargain will hold. At a contentious Regents' meeting, several Regents demanded that the policy be be reworked to inflict punishment for violations of the vaguely-worded and generally unprincipled intolerance code. Regent Richard C. Blum threatened that his wife, U.S. Senator Dianne Feinstein, would interfere and make trouble if the Regents didn't commit to punish people for prohibited speech. Meanwhile, students and faculty battled over whether the intolerance statement should adopt the State Department's definition of anti-Semitism and therefore cave to some factions that believe that Jews have a special right to be protected from certain arguments about Israel.

I predict that the University of California will take the wrong path and wind up buying a beach house for some lawyer.

Free speech still has principled support in academia, articulated by leaders who insist that students act like adults. In Nebraska, University of Nebraska-Lincoln Chancellor Harvey Perlman rebuked calls to censor preachers in Nebraska Union Plaza with a forthright call for free expression:

The university does not condone these comments. One would hope that the campus could enjoy intellectual disagreements without this type of rhetoric. Nonetheless, as far as we can determine the speakers were within their First Amendment rights of free speech. We have designated the plaza outside the Nebraska Union as a place where provocative speech can be conducted without disruption of the ongoing activities of the university.

. . . .

We all have the option to avoid the plaza if we neither want to hear nor be subjected to this type of language. In the end, we are fortunate to live in a free society where speech is protected, regardless of how offensive or provocative it might be.

At Wesleyan, when the student paper printed a controversial op-ed questioning the Black Lives Matter movement, University President Michael Roth defended the paper's right to print it and rejected demands that it be punished:

Some students not only have expressed their disagreement with the op-ed but have demanded apologies, a retraction and have even harassed the author and the newspaper’s editors. Some are claiming that the op-ed was less speech than action: it caused harm and made people of color feel unsafe.

Debates can raise intense emotions, but that doesn’t mean that we should demand ideological conformity because people are made uncomfortable. As members of a university community, we always have the right to respond with our own opinions, but there is no right not to be offended. We certainly have no right to harass people because we don’t like their views. Censorship diminishes true diversity of thinking; vigorous debate enlivens and instructs.

The existence of a few principled allies in the war for free speech is heartening. The existence of foes like Regent Blum (and his wife, a U.S. Senator) is not. But most disheartening of all is the recognition that in fighting for free speech we struggle against an army of child soldiers. At Wesleyan, students responded to their Presidents' example with arguments that free speech should be suppressed because it "silences" other speech and that permitting expression of viewpoints they don't like is a "coward's approach." At the student paper, editors wrote a cringing apology for having offered an offensive viewpoint. Will that paper allow a substantially non-conforming viewpoint in an op-ed again? I fear it will not.

The child soldiers — young people devoted to using official power to punish ideas they don't like — are terrifying because they seem so divorced from core American values like liberty, freedom of conscience and expression, and individual responsibility. Let's not forget that's our own damned fault.

A Market Solution To Academic Snowflakes

For years I've been grumbling about the rise of the imagined right not to be offended.

It's not going away. If anything, feelings of entitlement not to be offended are growing, especially in academia. The University of California is considering enshrining a right to be free of "expressions of intolerance," defined as meretriciously as you'd expect. Chancellors of great universities announce that free speech requires feeling safe. Too many students seek not just to disagree with ideas but to prevent ideas they don't like from being uttered in their safe spaces at all.

Plenty of folks and institutions — the Foundation for Individual Rights in Education, for example — are devoted to pushing back against this attitude.

But what if they're taking the wrong approach? What if the market is the right way to deal with the imagined right not to be offended?

Snowflake U.

Imagine a world in which the market lets people decide whether to be special snowflakes — people wtih an actual protected right not to be upset or offended.

As the University of California's proposal shows, the legions of school administrators are perfectly capable of creating Snowflake Schools, where the administration vigorously defends students' rights to be free of offense. What if we let them?

Take, let's say, Brown University. They're already on FIRE's red light policy list, and frankly I enjoy making fun of them. Brown could decide to take on the mantle of a Snowflake School. It could openly declare that its students have a right not to be offended. It could enact policies accordingly, and discipline students and faculty who cause any offense through their speech and actions. Brown could display the snowflake symbol on their letterhead and web page. They could even vigorously rebrand themselves to attract students who don't want to be offended — I don't know, they could rename their teams The Blizzards or something.

Students, staff, and academics could then vote with their feet. Do I want to go to an acknowledged Snowflake School? Maybe I do, and will wear the snowflake badge proudly. Maybe I don't — either because I don't want to get expelled for offending someone, or because I'm embarrassed to go someplace that marks me as a snowflake.

Other people could vote, too. Do I want to hire someone who chose to go to a Snowflake School? You might, but I wouldn't. Do I want to date a Snowflake? Do I want a doctor, a lawyer, an accountant who wears a Snowflake U. sweatshirt?

The Department of Snowflake Studies

But wait! Isn't the snowflake/non-snowflake decision too binary, you ask? Won't schools that make a choice always be riven by snowflake vs. non-snowflake conflict, with some schools lurching back and forth?

Perhaps. That's why we can implement market forces within schools as well.

Imagine: "Snowflake Choice" schools have a Snowflake Registry. Students, staff, and academics can choose to sign up for that registry, or refuse to. Only folks on the registry can assert a right not to be offended, and pursue offense-related grievances. If you're on the Snowflake Registry, you are subject to full punishment for causing offense. If you're not on the Snowflake Registry, you're subject to punishment only with respect to self-selected Snowflake Classes and Snowflake Activities and Snowflake Departments. You might get kicked out of Professor Feels' classes but not Professor Grownup's classes.

Once again, this lets market forces take hold. Do I want to take history from a professor on the Snowflake Registry, knowing I can get kicked out of her class if I offend someone? Or do I want to sign up for a class taught by a professor not on the registry? Do I want to major in a Snowflake Subject, or a non-Snowflake subject?

Transcripts, naturally, would reflect status. I'd be able to see if a job applicant only took classes from Snowflakes, and act accordingly. I'd be able to see if an applicant's major was in a Snowflake Department. I'd be able to notice if a student got all As from non-Snowflake teachers but Cs from Snowflake-teachers, and draw appropriate conclusions.

Every Snowflake Is Unique

A few caveats are important. First of all, non-Snowflake status would not be a defense to accusations of genuine misconduct. A physical assault is not mere offense, nor is a true threat.

Second, Reverse-Snowflakes would find no solace. A Reverse-Snowflake is someone who thinks they have a protected right not to be told they're offensive, someone who thinks that they have a right not to be called an ass when they act like an ass. That's whingy and unprincipled nonsense. Such people should sign up for a Snowflake School, since that's what they fundamentally are.

Let A Thousand Snowflakes Melt

The virtue of this approach is choice. The struggle between Snowflakes and Non-Snowflakes would remain, but rather than a struggle to control institutions to impose their viewpoints, it becomes an individual struggle.

Non-Snowflakes may worry that the market would operate in a way they don't like — that the market would favor Snowflake Schools and Snowflake Majors and huge drifts of graduating Snowflakes. Maybe. But if that's the case, do we deserve any better?

A Tale of Two Consequences For Censorious Asshattery

The wheel turns slowly, my friends — but it turns.

Here are two stories of the wheel grinding down censorious jackasses.

Mayor Jim Ardis Costs Peoria Taxpayers $125,000 Plus Legal Fees

Remember Peoria Mayor Jim Aris? He's the jackass who took offense to a satirical Twitter account and used a crony cop and a compliant judge to get a search warrant to harass the satirist.

Now Peoria has agreed to pay $125,000 to settle the satirist's civil rights suit. Peoria taxpayers foot that bill, along with the no doubt much larger legal bill for the city's lawyers.

Now, Jim Ardis doesn't face financial consequences personally. But there's hope he'll suffer long-term reputational and political consequences:

The actions against Daniel unleashed a torrent of negative backlash directed at Ardis and the police, a controversy dubbed "Twittergate" by many in the central Illinois community. Daniel's lawsuit against Ardis and several city officials accused them of violating his First and Fourth amendment rights. Legal experts said political satire is a protected right of free speech.

The settlement also requires Peoria to issue a directive to its Police Department saying the law prohibiting the impersonation of a public official — the same statute the city tried to use against Daniel — does not apply to satire.

Please join me in proclaiming that #JimArdisIsAnAss.

MedExpress Ordered To Pay Lawyers Who Responded To the Popehat Signal

You may remember that in 2013 I put up the Popehat Signal to seek Ohio lawyers willing to fight back against Med Express, an Ebay seller filing frivolous lawsuits attacking people for bad reviews. Jeff Nye and Tom Harren stepped up. Your rights, and mine, depend upon lawyers like them doing things like that.

Working together with Paul Alan Levy at Public Citizen, they defeated MedExpress and convinced a court to order MedExpress to pay their fees. Paul has the story here. It's very hard to get courts to award attorney fees as a sanction for frivolous litigation. But it's great when it happens. Jeff and Tom deserved to get paid for their efforts, and the sanction should help act as a deterrent against other thuggish plaintiffs.

Satire vs. Potentially Defamatory Factual Statements: An Illustration

Earlier today, author John Scalzi posed this question:


I am incapable of passing a question like this without answering it. Moreover, as luck would have it, I just finished a brief on the subject yesterday.

So: here is the short answer. The book title is almost certainly parody protected by the First Amendment, because an audience familiar with the circumstances would recognize it as parody and not as an assertion of fact.

Now: cry havoc, and let slip all the ones and zeroes.

The book cover — here on Amazon — has its roots in an ongoing war of words between Theodore Beale, self-styled as Vox Day, and John Scalzi. I will spare you an assessment of who started it or who is continuing it. Nor will I discuss at any length how I generally like Scalzi and his writing (though he's considerably to the left of me) and how I hold Beale and his admirers in low esteem. That's my bias.

Some time ago, Scalzi wrote an essay in the voice of a rapist thanking conservative politicians who seek to limit the ability of rape victims to secure abortions. Nobody rational could interpret it as Scalzi admitting to rape. Whether you agree with it or not, it's clearly a satirical broadside against a particular political viewpoint that parses which rapes are "legitimate" and which aren't.

Beale and his admirers, as a rhetorical device, launched a tendentious and tiresome meme treating the piece as serious and accusing Scalzi of actually having done the things he talked about in the satirical piece. Scalzi discussed it here.

Amazon self-publishing has become a popular method of pandering to audiences. Recently various figures have begun publishing elaborate manuals on how brave people can stand up to the terrible Social Justice Warriors who will mock and criticize them and such. To me this is a paradox: if you need a manual to stand up, no manual will help you. But never mind that. This e-book — titled "John Scalzi is a Rapist," and echoing various memes that Beale followers like — is part of that trend.

Here's why it's almost certainly protected parody.

The Law

Only a statement of fact can be defamatory. “Rhetorical hyperbole,” “vigorous epithet,” “lusty and imaginative expression of contempt,” and language used “in a loose, figurative sense” are all protected by the First Amendment. (Greenbelt Pub. Assn. v. Bresler (1970) 398 U.S. 6, 14.)

How do you tell the difference? A court will look at the "totality of the circumstances" — that is, not just the statement in isolation, but all the facts and circumstances surrounding and leading to it. The court will also look at the statement in the context in which it was made, not in the abstract. Finally, the court will look at the statement from the perspective of the audience to which it was directed, taking that audience's knowledge and understanding into account. (Seelig v. Infinity Broadcasting Corp. (2002) 97 Cal.App.4th 798, 809-10.)

That's why satire and parody are protected even when directed at a fairly narrow audience. For instance, when the proprietors of WorldNetDaily sued Esquire for a parody suggesting they were withdrawing one of their birther tomes, Esquire won because the piece was viewed from the perspective of someone familiar with Esquire's history of satire and WorldNetDaily's history of nuttery, not from the perspective of a person encountering all these figures for the first time. Similarly, my post about the case is protected satire even though I made up excerpts from the D.C. Circuit opinion suggesting that WorldNetDaily staff routinely molests walruses.

Many other factors also contribute to determining whether something should be treated as hyperbole, insult, and satire or as a statement of fact. Those include the tone (measured tones are more likely to be taken as fact, fiery and bombastic tones as opinion), anonymity (anonymous or pseudonymous statements are less likely to be treated as factual), the formality, the intelligibility, whether it is labeled as fact, whether the author suggests a basis for knowledge or evidence to support the statement, whether the statement is specific rather than general, and whether the statement is in the context of a dispute that one would expect to generate heated rhetoric. California courts have recognized that internet dwellers are less likely to view statements online as assertions of actual fact, especially when they are in a forum known for bloviating. That doesn't mean that everything on the internet is automatically opinion rather than fact: things on the internet can still be treated as fact when they contain factors like assertions of lack of bias, assertions of specialized knowledge, labeling as fact, specifics, signals of reliability and factual nature, etc. (Bentley Reserve L.P. v. Papaliolios (2013) 218 Cal.App.4th 418, 433.)

So. If someone wrote an article saying "Ken White's legal analysis should be disregarded because dresses up in a rubber suit on the weekend and hunts ponies with a handmade crossbow," and says it on their trash-talking blog, to an audience that knows them and knows about my blogging here, it's almost certainly parody, because the relevant audiences would be familiar with our in-joke about responding to spam emails with rants about ponies and would therefore not take it seriously.

The Facts Here

Here the factors point very strongly to the book being treated as parody, and protected by the First Amendment, rather than as a defamatory statement of fact. With all respect to Scalzi, his question is wrong: you can't analyze the book title in isolation. You have to look at it in the context of the whole. In that context, the intended audience (both fans of Beale and fans of Scalzi) would recognize it as a reference to Beale's tiresome meme. Plus, the Amazon description explicitly labels it as "a blazingly inventive parody," and the descriptive text is mostly nonsensical and evocative of ridicule of "SJW" concerns, and references some of the topics that anger Beale's coterie in connection with Scalzi like the Hugo Awards.

I think this one is protected parody, and I don't think it's a very close call.

Could the meme be defamatory if uttered in a different context? Yes, potentially.

Patterico Prevails: Vexatious Legal Attack on Speech Fails

For the last few years I've had the privilege of acting as pro bono counsel for Patrick Frey, who blogs as Patterico, in defense of a thoroughly frivolous federal case filed to censor his speech. That's given me the invaluable opportunity of working with the redoubtable Ron Coleman as co-counsel both in the district court and the Ninth Circuit. You can catch up on the legal issues in the case here and here.

Now, after years of litigation, I'm pleased that the case has ended successfully for Patrick. As Patrick announced yesterday, he and plaintiff Nadia Naffe have settled the matter for a walk-away. Patrick retracted nothing and paid nothing, and only waived his fees and costs, and Naffe dismissed the case with prejudice — meaning it can't be refiled.

It's both a good thing and a bad thing. It's a good thing because it's the right result: the case was a blatant politically motivated attack on protected speech. It's bad because it took so much time and work. The flaws in the system it exposed are too extensive for one post, but one thing stands out: the case highlighted the need for a federal anti-SLAPP statute that makes it harder for vexatious litigants to abuse the federal court system. You can track the progress of various proposed anti-SLAPP statutes here. If you want to help make this sort of abuse harder, consider becoming a vocal supporter of state and federal anti-SLAPP statutes. Write your representatives.

Thanks are due to Ron, for leadership and exceptional skill, to Eugene Volokh, for a very strong amicus brief before the Ninth Circuit, and to Patrick, for perseverance and principle.