Prior Restraint of Daily Iberian More Outrageous Than We Feared

Last week I described how District Judge Curtis Sigur issued a broad temporary restraining order at the behest of attorney David Groner imposing clearly unconstitutional prior restraint on the Daily Iberian of New Iberia, Louisiana.

This is not a story where the facts, as they come out, show that everyone overreacted. This is a case where the facts are even worse than initially reported.

[Read more…]

Louisiana Judge Issues Ludicrously Lawless Takedown Order To Newspaper

Attorney David Groner of New Iberia, Louisiana is angry. Those bastards at the Louisiana State Bar took a run at him, but he mostly beat the rap. He only took a six-month suspension, and that suspension is suspended if he successfully completes a year of probation.

But then some jackass on the web forum of The Daily Iberian mouthed off about him, and linked the public document announcing his suspension, just like they had a First Amendment right to do that or something. What's a lawyer to do?

Thank God for compliant judges with quick rubberstamps. David Groner sued, and District Judge Curtis Sigur immediately granted him a temporary restraining order directing the New Iberian to delete the comment, remove the link to the public document, and who knows what else:

In the lawsuit, Groner asked a judge to prohibit The Daily Iberian from publishing on its website any article or story in which Groner is accused of "dishonesty, fraud or deceit in connection with a Louisiana Supreme Court decision or similar matter."

The lawsuit was filed Aug. 25. District Judge Curtis Sigur signed a temporary restraining order the same day the lawsuit was filed in support of Groner's request.

The Daily Iberian has obeyed rather than risk contempt, but is appealing.

Maybe the anonymous comment falsely described the bar proceedings against David Groner. But forcing the paper to take the comment down — not to mention the link to a public document — is nothing short of lawless. First, the paper isn't responsible for the comment as a matter of law under Section 230 of the Communications Decency Act. Second, the judge's order is classic — and classically unconstitutional — prior restraint. If you are defamed, your remedy is to seek damages. Maybe, once a jury has ruled, you can get an order prohibiting the defendant from repeating the thing the jury found to be defamatory. But a pre-trial order directing a newspaper to take something down, including a public document? Obvious prior restraint of the sort that thinking judges reject immediately.

Our rights depend on the judges who are supposed to enforce them. District Judge Curtis Sigur is violating his oath to uphold the constitution. Shame on him.

As for David Groner — well. He's the guy who asked for the prior restraint, including the deletion of a link to a public document about him. How trustworthy is that?

Edited to Add: David Groner had a Facebook post about the paper.

After over 30 years as a subscriber, today I have cancelled my subscription to the Daily Iberian.
For years now, the paper has become a poor choice for area news and certainly is a day or two late on state or national news.

The main reason however is that the paper runs a website that allows anti-Semitic; racist and homophobic rants under the guise of anonymous postings. In addition and in particular, any person in the public view is defamed, attacked and vilified and even when the administrator ( the newspaper) knows of the false defamatory posting, they refuse to remove or censure. Of course there is no way of knowing if the staff at the Daily Iberian is responsible for the postings themselves. They have become smug and arrogant in their claim for " freedom of speech".

I can no longer condone a website that tears at the fabric of our community and therefore have chosen to refuse to buy the newspaper. I have many friends who have previously cancelled their subscription, I now regret it has taken me this long to join them.

Two thoughts: (1) nice scare quotes on "freedom of speech," and (2) don't you think the significant point isn't that you cancelled your subscription but that you sued them and got a lawless court order imposing prior restraint on them?

Lawyer Threatens Yelp Reviewer With Lawsuit, Is Wrong

Kyle Barella is an immigration lawyer with his own firm. Last week he gave an "exclusive" interview to Breitbart News Network on his views about birthright citizenship and the whole "anchor baby" controversy. That was, of course, his right. He said he thinks that birthright citizenship is being abused and that we should end it. He said so rather mildly, particularly given where he was being quoted.

This is modern America, so naturally someone was upset about his viewpoint and left his law firm a one-star review on Yelp complaining that his ideas are "borderline racist." It's his only review right now. The reviewer — "Amir K." — thinks that Kyle Barella shouldn't be an immigration lawyer because of his views on birthright citizenship:

[Read more…]

Lawsplainer: How Did the Fifth Circuit Narrow Student Free Speech Rights?

Last week, in Bell v. Itawamba County School Board, an en banc panel of the United States Court of Appeals for the Fifth Circuit spent 101 pages arguing over when students can be punished for off-campus speech, and ultimately significantly limited them.

Wait. You expect me to read a 101-page court opinion?

I don't expect you to read all the way through a tweet with big words.

Hey! Attitude! Are you going to explain this?

You expect me to explain a 101-page en banc decision with seven separate concurring and dissenting opinions?

You know you're going to to it.


[Read more…]

Old Dominion University: Offensive Messages On Private Property "Will Not Be Tolerated"

As the summer of August burns away into September's fall, traditional parades of parents escorting their sons and daughters off to college are in full swing.  After a long, relatively uneventful summer, students and administrators alike have returned and are eager to resume their own tradition: indulging their basest impulses.

Kicking things off this year are the luminaries at Old Dominion University in Norfolk, Virginia.  Having rented an off-campus apartment just across the street from campus, these polite young gentlemen put their best foot forward and hung signs from their balconies to make sure that everyone had a proper introduction to who and what they were:

Old Dumbinion

"We are upstanding gentlemen.  We can't even think of any clever phrase with words starting with the letters 'ODU.'  You should date us and/or employ us someday." (Huffington Post)

[Read more…]

Center for Medical Progress May Win Abortion-Related Prior Restraint Fight In Los Angeles

A couple of weeks ago I discussed a lawsuit filed by StemExpress — a broker of fetal tissue — against the Center for Medical Progress, the group at the heart of the ongoing video-based criticism of Planned Parenthood. I noted that a judge of the L.A. County Superior Court had issues a temporary restraining order preventing CMP from releasing a video of a meeting it had with StemExpress executives, and expressed some concern about the reasoning and how the ruling was constitutional under the prior restraint doctrine. Eugene Volokh's take was clearer and less prone to outbursts of profanity.

StemExpress' initial success now appears unlikely to continue. CMP has filed a well-drafted anti-SLAPP motion attacking the StemExpress complaint. I've explained how anti-SLAPP motions work before. If you're being sued for speech, and you believe the speech is protected, you can file the motion, lay the factual framework for the speech being protected, and force the plaintiff to come forward with admissible evidence showing it could plausibly succeed on its claims. Moreover, an anti-SLAPP motion halts discovery absent a special order of the court.

[Read more…]

When Lightning Strikes An Utter Tool

Harry Vincent is a 19-year-old college student and kind of a dick. That's banal. Lots of 19-year-olds are dicks, and many of them are college students. Harry Vincent is notable because he has been struck by proverbial lightning — he offended someone online, and that person had the inclination and free time to complain about him to his university, and his university had the shitty values and utter lack of proportion or good sense to punish him for it. That's an unlikely chain of events. But do we really want it to be more likely?

Harry Vincent goes to Texas Christian University. In his spare time, he likes to say "beaners" and imagine people he doesn't like being "exiled" to the Sahara Desert, which he may or may not think is a country.




That's Harry — indifferently literate, choadish, kinda racist, and not particularly creative or good at any of it. The average 13-year-old on Reddit would school his sorry ass on being notably offensive in a hot second. Harry — who goes by @classypatriot, and probably not ironically — is just plain dull.

The internet is oozing with Harrys. But this one caught the attention of a some no-rocket-scientist-either woman in Maryland who encouraged her readers to complain to TCU about him. Harry wasn't speaking on behalf of TCU, or using their Twitter account, or talking to or about TCU students, and wasn't a TCU public relations official or anything. This person "Kelsey" apparently just felt that assholes shouldn't go to college. Ridiculous. Who would run our hedge funds?

Normally this wouldn't be a problem. If sensible people had received Kelsey's complaints of private-time toolbaggery by Harry, they would have shaken their heads and gone back to whatever it is that the hideously swollen academic-administrative class does all day. But apparently TCU lacks sensible people, because TCU suspended Harry Vincent and restricted him from dorms and campus activities. The FIRE has the story, and wrote TCU a stern letter. TCU is a private entity and not bound by the First Amendment — but, as FIRE points out, they claim to celebrate free speech, and ought not if they're going to act like this.

Does TCU, a private entity, have the right to suspend Harry without anything resembling due process for engaging in patently protected speech? Yep. Is its decision to do so worthy of our respect? No. It's ridiculous. First of all, it's arbitrary. I guaranfreakingtee you that a sizable percentage of TCU's student body routinely acts like assholes on the internet. Harry's being singled out because a petty and disturbed person ran across him — he's been struck by lightning. Second, it's unsustainable. Even the army of administrators that colleges support these days can't possibly keep up with policing and regulating the private online speech of students. It's a waste of money to try. Third, this runs contrary to what a college ought to be. TCU isn't some American madrassa openly advocating for uniform thought, like a Bob Jones or a Liberty. If you go to one of those places, you know what you're getting into. No, TCU is nominally a respected academic institution devoted to free inquiry. Suspending people for political expression, however uncreatively dickish, is thoroughly un-academic.

The appropriate American remedy for Harry Vincent being a bigoted twerp is (1) absent fatal alcohol poisoning, him growing up, and (2) more speech imposing social consequences. I suppose being suspended from a private institution is a form of social consequence, but it's a thoroughly disproportionate and disreputable one. Imposing official school punishments on the Harry Vincents of this world suggests that the TCUs of this world can't counter his oafish speech — that all the professors and administrators and earnest students cannot make a convincing counter-argument to some slackjawed dipshit saying "beaner." Doesn't inspire much confidence in the educational system, does it?

TCU deserves scorn for this. They deserve an object lesson as well. If TCU thinks that it ought to regulate its students' private speech when the fragile pussywillows of the internet object to it, why not take TCU at its word and help it along? I'm sure it will be easy to identify TCU students on social media and comment sections and blogs. Why not examine what they say, and write to the administration of TCU if it irks anyone? I'm not just talking about Harry Vincent's sophomoric twaddle. For every TCU student who says #blacklivesmatter, someone ought to write TCU protesting that #alllivesmatter, FOR FEELS. For every student who says something unflattering about Israel there ought to be an angry email. For every off-color joke, there should be a statement about the over-sexualization of society. For every student who makes a hurtful remark about political groups, TCU's administrators ought to get a missive from a Concerned Person. Maybe it's ridiculous to take personal offense at those things, you might say. Well, you might think so. But TCU is clearly interested in how random internet citizens feel about their students and their words. How can we not help them along? You can find email addresses here. Be polite.

Postscript: if you are inclined to write a comment complaining that I ought to be defending free speech without criticizing the speech or the speaker, kindly snort my taint, fool.

James Woods Punches The Muppet

There was an episode of the 1990s sitcom Murphy Brown in which Murphy, played by Candace Bergen, appeared on kid's TV show to soften her image. The show features Muppets; it's a transparent stand-in for Sesame Street. Murphy, true to type, loses her temper and punches one of the Muppets, eventually ripping its head from its felt shoulders.

It's rarely productive to punch the Muppet.

Somebody should have reminded James Woods. He's just wound up and thrown a haymaker at a Muppet, suing some anonymous troll on Twitter for suggesting that he's a "cocaine addict." Woods filed a complaint in L.A. County Superior Court claiming $10 million in damages for defamation and false light invasion of privacy. He's represented by Lavely & Singer, as people like him tend to be in making errors of judgment like this.

Woods probably has plenty of money, and can afford to waste it on this sort of enterprise. That means that he won't be ruined if the semi-anonymous Twitter user hits him with an anti-SLAPP motion and wins attorney fees — which could easily be in the mid to high six figures.

Why do I think that Twitter troll "@abelisted" (now deleted) can win an anti-SLAPP motion in defense of this suit? Because he's a Twitter troll, and reasonable people would take his tweets as abuse, hyperbole, and satire, not as a statement of fact. Therefore they can't be defamatory.

Only provable statements of fact can be defamatory. Insults, abuse, hyperbole, overheated rhetoric, satire, irony, and the like cannot be. Whether a particular statement is one of fact or opinion is generally a legal question for the judge, not a question for the jury. Moreover, the judge must evaluate whether the statement is one of fact or opinion based on the context in which the statement was made. "The contextual analysis requires that courts examine the nature and full content of the particular communication, as well as the knowledge and understanding of the audience targeted by the publication." Bently Reserve L.P. v. Papaliolios, 218 Cal. App. 4th 418, 427 (2013). Increasingly, California courts have recognized that online rhetoric is more likely to be interpreted by its audience as cathartic trash-talk, not a factual assertion. This is especially true when it occurs someplace particularly known for overheated rhetoric, like a gripe forum. Furthermore, California courts have recognized that anonymity and semi-anonymity increase the audience perception that statements are rhetorical rather than factual.

Anyone familiar with Twitter knows it to be overrun with trolls, malcontents, comical and satirical characters, and deranged stone-throwers. Every indication is that "@abelisted" falls into this category. In fact, Woods' own complaint does an excellent job of setting up the argument that @abelisted is engaged in hyperbolic insult, not factual assertion:

The owner of the AL Twitter Account has thousands of followers and, since at least December 2014, has undertaken to engage his followers with a campaign of childish name-calling targeted against Woods. In the past, AL has referred to Woods with such derogatory terms as "prick," "joke," "ridiculous" "scum" and "clown-boy."

So, Woods concedes that exaggerated insults by a Twitter troll are the context for the troll eventually saying "cocaine addict James Woods still sniffing and spouting."

Woods compounds this impression by emphasizing and griping about non-factual statements clearly protected by the First Amendment:

Indeed, a search on for "Abe List James Woods" yields the outrageous statements from the AL Twitter Account as the top two results, including one that calls Woods "a ridiculous scum clown-boy."

Moreover, @abelisted's profile — now deleted, but available through Google cache — explicitly suggests that his tweets are not all to be taken seriously:


Moreover, @abelisted's tweets show him to be a rather banal critic of conservative figures, quick to insult and criticize them. He probably targets James Woods because Woods is an outspoken conservative, something that tends to agitate narrow-minded folks who are used to entertainment figures being outspoken liberals.

In short: the context of @abelist's tweets, especially as emphasized by Woods himself, overwhelmingly suggest that any reasonable reader familiar with that context would take the "cocaine" tweet as part of a pattern of hyperbolic abuse by a trollish partisan, not as a factual assertion meant to be taken at face value. I won't say that Woods' complaint is frivolous or sanctionable, but @abelisted definitely has a very strong anti-SLAPP motion available to him, and Woods could easily wind up paying his attorney fees.

@abelist is a punk, but you get to be a punk in America without being held financially liable for it.

Either James Woods got shitty advice, or James Woods' attorneys failed to convince him to act sensibly. The Streisand Effect has already begun; four to five orders of magnitude more people will hear about @abelisted's stupid tweet than would have without this lawsuit. What's the point?

Don't punch the Muppet, James Woods.

Edited August 28 to add: "John Doe", who runs the @abelisted account, has retained me to represent him in Mr. Woods' suit. I will not be discussing the matter here during the litigation, at least until we have a ruling on an anti-SLAPP motion. As always, my law firm does not control, approve, or endorse anything I write on Popehat; it's a purely personal project.

L.A. Court Prohibits Center for Medical Progress From Publishing Some Undercover Materials About Abortion

My co-blogger Adam Steinbaugh contributed to the factual and legal research of this post.

A group called the Center for Medical Progress ("CMP") has been releasing a series of "undercover" videos as part of a campaign against Planned Parenthood and abortion. This week, a judge of the Los Angeles County Superior Court issued an order prohibiting them from publishing a narrow range of materials on that subject.

This post addresses the First Amendment implications of that order, not the legal, political, and social issue of abortion and/or Planned Parenthood's practices.

[Read more…]

Popehat Signal: Please Help Mandy Nagy And Her Family

It's time for the Popehat Signal. I failed last time I lit it in this case, but I'm lighting it again, hoping that the community of civic-minded, speech-cherishing, evil-fighting lawyers will respond.

I need your help defending a stroke victim and her family against a domestic terrorist who has replaced his bombs with ongoing vexatious litigation.

[Read more…]