A Response To A Critical Email From A University of Wisconsin-Superior Student

In response to my post yesterday, a UW-Superior student wrote to me. I responded. Meanwhile, after receiving the FIRE's letter, UW-Superior closed the investigation without action. I confirmed that the person writing me was a student, but have elected not to name him here.

Dear Mr.White,

Last Friday (04/23/2016), you published an article called "How Inanely Censorious Can College Administrators Get? University of Wisconsin – Superior Will Show You", which raise many concerns. First of all, you're using the name of Ilana Yokel and Debbie Cheslock without their consent and you attacked them on a personal level, which is a terrible thing to do. Secondly, the nature of the investigation and the complaint filed by Debbie Cheslock were that of "student misconduct". Therefore, the procedure occurred as an attempt of trying to resolve a misconduct between student, which shouldn't involve the defense of the First Amendment nor Free Speech. This means that your article wrongly attacked both Debbie Cheslock and the Institution. Thirdly and most importantly, your comment section is filled with hatred and harassment for this poor women, whom life is now threatened because of what you published (including her place of work and her location). Upon learning that you can moderate your comment section, I sincerely ask you to censor those comment (or at least the information regarding Debbie Cheslock) as an attempt to protect her from harassment, cyber bullying and potential assault.

I believe that hurtful action came from misunderstanding, rather than bad intention. Which is why I wrote you this letter to inform you about the situation as well as the possible consequence.
Best regard,

John Doe.

Dear Mr. Doe,

Thank you for writing to me with your response to my post.

You may find my reply disrespectful, rude, or even cruel. In fact, I believe that respect requires me to treat you as an adult capable of a forthright response. I believe you can hear what I have to say, evaluate it, and reject or accept parts of it as you see fit.

First: Mr. Doe, I do not need anyone's consent to speak or write their name. There is no legal requirement that I obtain someone's consent before expressing myself about them, and any such requirement would violate the First Amendment to the United States Constitution. Moreover, you have implied that I need people's consent to write about them even after they have given quotes to newspapers about an issue of public interest, which takes your complaint from silly to utterly ridiculous.

Second, I reject your assertion that I attacked Ms. Cheslock or Ms. Yokel "on a personal level." I attacked their conduct and their demands. Ms. Cheslock demanded that a state school bound by the First Amendment punish students for engaging in satire that is unquestionably protected by the First Amendment, and to be subjected to "cultural competency training" — that is, mandatory education on the right way to think and speak. This is wholly despicable and un-American, and nothing I have said about her comes close to expressing the contempt it deserves. Ms. Yokel asserted that a student newspaper has a nebulous "duty" to exercise free speech in a "responsible way." I stand by calling that incoherent and unprincipled.

Third, your argument about "student misconduct" is nonsensical. University of Wisconsin-Superior is a state school bound by the First Amendment. It cannot violate student rights by labeling things "student misconduct" or labeling an investigation as "trying to resolve a misconduct between a student." If a public school investigates a student and threatens to impose official discipline on that student based on protected speech, it is violating that student's constitutional rights. Your assertion that this "shouldn't involve the defense of the First Amendment nor Free Speech" is also nonsensical. The law, not your feelings, governs whether constitutional rights protect speech. The paper's attempt at satire was obviously protected speech. It's just not a close call at all. The fact that you don't feel it ought to be a First Amendment issue is irrelevant. As the FIRE's letter linked in my post accurately shows, it is a First Amendment issue, and the administration was squarely in the wrong — until it recently announced it had abandoned the "investigation."

Fourth, I think your assertion that the comments are "filed with hatred and harassment" is overwrought. I have deleted some comments that contained gratuitous insults and racism, because Popehat is my private blog and I use it to express myself and exercise my right to free expression. But so far, I don't see anything published that exceeds the level of contempt I think these totalitarian attempts at censorship richly deserve. I will not be "censoring" any of the comments I've approved.

Mr. Doe, let me be more forthright. I do not believe you have equipped yourself to be an adult citizen in a free society. It is not too late to do so.

I am not suggesting that becoming a responsible adult citizen in a free society requires you to become a conservative or eschew "liberal" or "progressive" values. To the contrary. But becoming a responsible adult citizen — and an effective advocate for liberal or progressive values — requires a quite different approach.

We're in the middle of a modest conservative backlash and a resurgence of bigotry, both actual and arrested-adolescent-poseur. I believe a large part of this backlash results from the low quality of advocacy for progressive ideas. Much of that advocacy has become characterized by petulant whining and empty dogmatism. The message conveyed by too many of your generation is not that people should adopt progressive ideas because they are right or just, but that they should adopt them because that is what they are supposed to adopt because that is what right-thinking people adopt. That is irritating and ineffectual. Faced with an idea, I don't expect your generation to confront it. I don't expect you to explain how it's wrong, and win hearts and minds that your ideas are better. Rather, I expect you to assert that you should be protected from being exposed to the idea in the first place. That's disappointing and doesn't bode well for the success of progressive ideas (many of which I admire) in society. In short: if this is how you're going to fight for what you think is right, you're going to lose. Do better.

Meanwhile, I sincerely wish you fulfillment and joy in college, which is a marvelous experience. Don't stop meeting new people and trying new things. Don't overspecialize; you'll never again have such an opportunity to expose yourself to new and different subjects. Take advantage of it.

Very truly yours,

Ken White

How Inanely Censorious Can College Administrators Get? University of Wisconsin – Superior Will Show You

Over at The Torch at the Foundation for Individual Rights in Education, Adam Steinbaugh reports on a university administration sinking to depths of censorious idiocy that managed to surprise me.

The University of Wisconsin – Superior's student newspaper, The Promethean, ran an April Fool edition for the second year in the row. The entire concept of April Fool's Day is inherently problematic, as it generally involves making fun of someone, even if they are in what they view as their safe space. April Fool's editions by college papers are particularly triggering because of the huge delta between how funny college students believe they are and how funny they actually are. But this edition — linked in Adam's piece above — was awfully mild, with the "edgiest" piece being satire by a Jewish student about being Jewish in Wisconsin.

Tumult ensued.

Tumult is banal. College students gonna college student. Just as satire is free speech, so is hand-wringing, self-to-the-cross-nailing, and caterwauling of every type. This is the time to do that sort of thing, so knock yourself out! Believe me, you're going to have trouble being satisfactorily outraged when you're paying down a mortgage and trying to keep your kids from discovering meth.

No, the problem is not young adults acting like young adults, whether with satire or outrage. The problem arises when nominal adults react in an unprincipled and irresponsible manner. That's what happened here, when university administrators announced they were launching an "investigation" based on a "grievance" filed against the satirical edition by a grad student:

Debbie Cheslock, graduate student and student program manager for UW-Superior's Gender Equity Resource Center, filed the complaint. She is alleging the editors violated university policy on non-academic student conduct and improperly noticed its April Fools' Day edition as satire. She contends articles included derogatory terms that were anti-semitic, racist and misogynistic.

Cheslock's grasp of the First Amendment is idiosyncratic, to put it mildly. She believes that it is censorship for a speaker to refuse to meet with their would-be inquisitor:

So, just to clarify, you are also unwilling to meet with me to discuss this matter? It is unfortunate, indeed, since that would be the very censorship you claim is deadly. The right to free speech also includes a continued dialogue and I am extremely displeased in the lack of regard for others’ opinions.

An "investigation" is in the works:

Meanwhile, UW-Superior is investigating the complaint with assistance from UW System’s legal counsel, according to UW-Superior spokesman Dan Fanning.

"We certainly respect the students who are involved with the newspaper and their right to have free speech," said Fanning. "At the same time, we’ve heard from so many students, alumni and community members and they see what we see. Even though that might have been meant to be satire … it clearly wasn’t funny to everyone, that it offended some people and that it crossed some lines that should not have been crossed. The university condemns that."

I'm sorry, but unless the UW system's legal counsel's response is "get the fuck out of my office, you civically illiterate imbecile," this is offensive and ridiculous. I don't have a problem with the administration participating in the marketplace of ideas by saying, in effect, "you're an jerk, but you're a jerk with free speech." But any "investigation" — meaning, any inquiry carrying the explicit or implicit threat of punishment for obviously protected speech — is unequivocally wrong. So is promoting ignorance about rights, as the administration attempted to do in statements supporting its investigation:

As we’ve said consistently, this was unethical and unprofessional journalism and contradicts the very values of our school. Satire is fine, having a difference of opinion is fine, but disrespectful and offensive language is not fine.

FIRE's letter to UW-Superior leaders is stern, as it ought to be. Hopefully the administration will decide that it ought to be spending money on education instead of on lawyers.

Responsibility is not a zero-sum game. Debbie Cheslock and her ilk are morally and intellectually responsible for being thuggish and censorious. But that does not diminish, in the least, the responsibility of grown-ups in the UW-Superior to resist censorship and thuggery when it is urged upon them by students. The things that these students want are incoherent, unprincipled, and totalitarian:

Cheslock said she wants those involved in the Promethean to be sent a message that the paper’s content was not acceptable and isn’t what UWS stands for. She also wants to ensure that the Promethean staff and faculty advisor go through a cultural competency training about diversity.

Yokel said that with free-speech rights comes a duty to exercise those rights in a responsible way.

“The First Amendment is a right, yes, but you not only have a right to say what you want, you have a responsibility to the people you’re representing,” Yokel said. “This paper is a student paper and I’m a student and this paper does not represent me.”

The administration needs to refuse to violate rights based on such demands. If it won't resist, it should be compelled to do so by force of law.

Germany's Libel Laws: A Threat To Democracy [Guest Post By Colin Cortbus]

Colin Cortbus is a student and freelance journalist – his freelance investigative work has appeared in the UK Daily Mirror, the UK Daily Star, and Channel 7 (Israel).

German Chancellor Angela Merkel has come under intense international scrutiny over authoritizing state attorneys to prosecute a TV comedian over a vulgar, satirical poem he performed lampooming Turkey’s brutal dictator Tayyip Recep Erdogan. But the issue goes far beyond Merkel’s cozying up to the tyrant in Ankara; Germany’s libel and anti-insult laws have long been a weapon of choice for those seeking to suppress the marketplace of ideas. Hitler himself, prior to assuming power, was also a vicious libel plaintiff. In Germany, you can even get into free speech trouble for “libeling” the dead!

The Boehmerman case and the wrong debate about free speech law

Whenever he is not busy having Kurds killed, imprisoning journalists, or denying the Armenian Genocide, Turkish strongman Erdogan is a sensitive, fragile snowflake, easily offended by the many people who laugh at his ridiculous and scary regime. Having Turkish citizens who purportedly compare him to Gollum from Lord of the Rings prosecuted apparently doesn’t satisfy his urges; Recently, Erdogan’s regime has attempted to muzzle the laughter in Germany to. It started off with calling in Germany’s Embassador to Turkey in late March after satire show Extra 3 on Germany’s state-owned TV channel NDR had run a song mocking Erdogan’s human rights record, saying “a journalist who writes anything that Erdogan doesn’t like, he’ll be in jail by tomorrow”. They had also suggested Erdogan’s vision of equal rights for women consisted of cops beating up female anti-government protesters as well as the men.

It was in the context of this row that another state TV comedian, Jan Boehmermann, dedicated his show to discussing the extent of the free speech rights guaranteed on paper by Article 5 of the German Basic Law. He highlighted that laws draw the limit of the permissible at a legal concept known as Smäh-Kritik, vilifying criticism. He said he would perform a poem named after the concept to exemplify that, and introduced it saying “what comes next would be forbidden in Germany”. Then he went on to read out a vulgar text hyperbolically accusing Erdogan, among many other things, of fellating with a “hundred sheep”, having a small penis, smelling worse than the fart of a pig and watching child porn as well as beating women. He concluded his poem saying, “this is what you can’t say in Germany”.

The rest is history. Erdogan complained about the poem under two separate German anti-insult laws, firstly the arcane Article 103 of the criminal code, banning “the insulting of foreign heads or institutions of state” (which requires authorization by the government for prosecution to occur) and then secondly filed a legal request for prosecution under the regular law banning insults against persons, Article 185 of the criminal code (which any person can use, without any special authorization). Merkel’s embattled government then issued the authorization for prosecution under Article 103, much to the surprise of press commentators. They had argued the second complaint was a “bridge” over politically hot waters that Erdogan had built for Merkel, allowing her to refuse to issue the controversial authorization under the arcane and unpopular Article 103, which even she herself has said she intends to repeal soon, but still ensuring criminal charges against comedian Boehmerman could proceed under a different law

The attack on Boehmerman’s speech rights is not the first time Article 103 has been used to suppress democratic speech at the behest of the powerful. In
the 1960s it has used so frequently to persecute pro-democracy movement refugees from Iran that itbecame known as the “Shah-article”. In the 1980s it was used tolegitimize police action against protests who held up a banner describing Pinochet’s murderous regime in Chile as a “gang of murderers”, a historically accurate statement. The court’s chilling justification: if police had not intervened to confiscate the banner, “the correct bilateral relations between Germany and Chile would have suffered to a not insignificant degree”. In 2003, the president of police in Potsdam, a suburb of Berlin, wanted to use to law to prosecute an Iraq Waropponent who installed a “Bush Fuck You” placard at his home in an upscale neighborhood close to the German capital. Bush hadn’t complained (so no prosecution went ahead), but well-to-do neighbors had not taken to the sign favorably. The threat of prosecution no doubt sent a chill down the war opponent’s spine, and put a smile on their face

Despite this, Boehmerman’s case also shows how Germany’s conversation about free speech is broken. Much of the critical public reaction has not been to defend Boehmerman’s right, per se, to engage in such satire, but rather has become an exercise in not-so productive group outrage against Article 103. Politicians have described the law as a “pre-democratic” remnant of an age where insulting kings was still seen as a major crime, highlighting that the law establishes much higher maximum penalties (5 years in jail) than the regular law against insults (one year in jail). The popular Focus Magazine prominently featured a bow-tie wearing constitutional law expert arguing that this violates the principle of equality before the law, making it incompatible with Germany’s Basic Law. The problem with this line of reasoning is that every moment spent discussing this redundant law is one not spent discussing the wider host of censorious, unnecessary libel laws that stifle free thought in Germany, including the very same Article 185 that could yet be used to prosecute Boehmermann. The Boehmerman case has already had a knock on effect, with a Berlin administrative court banning the reprinting of his poem for a planned demonstrationagainst “insulting goats” that free speech activists had intended to hold outside of the Turkish embassy, although the judges did not rule on the legality of his poem more widely.

Germany Anti-Insult and Libel Laws – Anti-Democratic and Stupid

Germany has a plethora of highly restrictive libel and anti-insult laws of the sort one would more expect to find in Putin’s Russia than Merkel’s supposedly tolerant Germany. Aside from the laws already mentioned, the rarely usedArticle 189 bans the “disparagement of the memory of the dead”, Article 188 establishes particularly high penalties for “smearing and defaming” a “person involved in political life” if the speech in question is connected to the person’s political activities and “makes their public work significantly harder”. Article 192 explicitly says that the truth of a statement does not preclude it from constituting an illegal, punishable form of expression if it is insulting in the context of the way the statement was made. Underlying these laws is the idea that people have “personality rights” (Persönlichkeitsrechte) that a democratic state is obliged to protect from being compromised by demeaning speech.

Much of this can be traced down to the haste and post-war compromise with which the Basic Law, (then Western-) Germany’s quasi-constitution was developed in the late 1940s after the fall of Hitler’s Nazi dictatorship. Article 5, its’ provision on free speech, reflects this perfectly. It states that everyone shall have a right to freedom of expression, information and art, without the existence of censorship, but then goes on to qualify this, making clear: “These rights shall find their limits in the provisions of general laws, in provisions for the protection of young persons, and in the right to personal honour”. Theodor Heuss, a deputy to the 1948 parliamentary council that drafted the Basic Law, later said Article 5’s limiting provisions were consciously vague and implied that the “right to personal honour” arose out of an egalitarian desire to ensure that the same protections against smears would not just be available to officials of the state (as had de facto been the case in Nazi Germany, where the dignity of dissidents and democrats had not been respected by the state), but to all people.

This ties in with the Basic Law’s wider rhetoric of the “inviolability of the dignity of man”, a vague and unspecific platitude that would no doubt have been acceptable to both socialists and conservatives in post-Hitler West Germany. The Basic Law was originally, as it itself stated, intended to be only a compromise placeholder until such a time as a reunified Germany could pass a new constitution. But, given that the Basic Law gradually became a powerful emotive symbol of a new, post-totalitarian sense of Germanness, there little chance of this happening, and Germans will remain stuck with its inadequate free speech protections.

But the historical lack of emphasis on true free speech still does not explain the reluctance of Germany’s current political, social and literary elites to
demand a long-overdue expansion of speech rights. An understanding of this must be found elsewhere. An opinion piece penned by the editor-in-chief of Berlin’s well-regarded, intellectual Berliner Zeitung exemplifies what many in Germany’s cultural elites think about the Boehmerman case. Peter Huth wrote “Merkel did everything right… Even if there is a guilty verdict, Boehmermann will easily be able to live with the fine”. It is unquestionably true that with a good (expensive) lawyer, waves of public support and a well-regarded professional background, no German TV presenter or big-league newspaper editor is likely to face jail or financially crippling fines for any insults he/she may throw at anyone. The almost certain knowledge that they themselves will never face such a predicament is exactly why many in Germany’s powerful cultural and political elites find it so difficult grasp the chilling, censoring effect Germany’s anti-insult laws can have on those less privileged financially, socially or professionally; Local bloggers, small town newspapers, court case defendants, dissident refugees and historical researchers who already live on the economic margins of society but are the lifeblood of public debate. To many of these people, even the threat of a time-consuming police investigation or state prosecution can be the determining factor in not pursuing a news story, not expressing their opinion or even not exercising their fundamental due process rights.

Far from the egalitarian impulse that supposedly led to the constitutional “right to personal honour”, in practice, Germany’s anti-insult laws give immense power to officials to threaten small-time critics and trouble-makers who hold inconvenient opinions with legal repercussions. In 2014, a local court in the Rhineland region of Germany imposed a 6 month jail sentence for “insults” on an elderly man who had spent years writing letters to officials complaining, allegedly in crude and sometimes sexist terms, of inefficiency, ineptitude and of alleged corruption. Meanwhile, In the Schwarzwald region, an unemployed man who was dependent on social assistance received a 3 month jail sentence for using an insulting word in a telephone conversation with a local government official by whom he was told that more paperwork was needed before a permit he had requested could be issued. Last year, Germany’s Constitutional Court overturned a guilty verdictissued by a local court under the anti-insults laws against a woman who encountered police while wearing a “fuck cps” sticker. The local court had characterized this as an expression impacting the “social worth of the affected persons in their official capacity and reducing it”. In the 1990s, the Constitutional Court famously overturned a similar conviction against someone who had displayed a banner saying in (bad) English “ a soldier is a murder [sic]”, although the decision appears to be partially based on the reasoning that ‘a soldier’ did not specify troops from any specific national army or regiment in particular. Nonetheless, a regional higher court found that shouting “ACAB” while pointing at an individual police officer is an illegal and specific insult.

In 2008, a small-time hotel operator who had been detained on charges of unlicensed commerce, was visited by a police inspector in jail who informed him that prosecutors had just obtained and fulfilled a search warrant for his private apartment. The hotel operator protested vigorously to the police
inspector. He said that his lawyer should have been present during the search, and called the state prosecutor who had requested the search warrant a “breaker of the law whose days in the judicial system are counted”. He was later investigated, prosecuted and convicted by a county court of “disparaging criticism” and “defamation” towards the state prosecutor for saying this, as well as of other charges unrelated to those comments, but an appeals court eventually overturned the verdict in 2011. Criminal charges of “smearing” (Verleumdung) were also used by the state to prosecute a victim of child sexual abuse who has forced to work in an illegal child brothel in the 1990s. Mandy K. had claimed in an interview with prosecutors investigating the case and publically, that that a senior judge had been among those visiting the brothel as a client. Her case sparked a national debate about allegations of judicial corruption as well as police attitudes to victims of sexual assault, and there is no record of her being convicted of the charges. But even being investigated by police and taken to court is a time-consuming, costly experience that discourages critical expression in the face of officialdom.

Germany’s libel laws also have an unfortunate history of stifling the discussion of vital political topics. One of contemporary Germany’s most prominent far-left politicians, Gregor Gysi, has, since the 1990s, faced allegations of having collaborated with communist Eastern Germany’s feared Stasi ‘state security’ agency to inform on his clients, some of whom were dissidents, while he was a solicitor in Eastern Germany prior to re-unification. He vehemently denies the allegations, which have never been proven, and became known as the “red law-suit monger” in 1990s over his successful efforts to sue those making such allegations for defamation. Despite the fact that a parliamentary committee of inquiry had deemed the allegations of informal collaboration with state security to be credible and had accused Gysi of being included in an effort to bring about the
“as-effective-as-possible suppression of the democratic opposition in the GDR [Eastern Germany]”, Gysi was able to use to the judicial system to obtain an
injunction under libel law banning former Eastern German dissident Freya Klier from repeating comments suggesting that Gysi had ‘not represented his clients but had instead spied on them and sought to control them together with his comrades’. Prestigious news-magazine Der Spiegel characterized the efforts to silence (in effect, if not necessarily intent) the debate using the judicial system as ultimately unsuccessful. But it also described the consequences of Gysi’s lawsuits for free expression at the time in no uncertain terms; “regional newspapers reacted in a scared manner, in some editors offices one preferred to think twice about whether one should report about Gysi and the Stasi- and then didn’t”.

Even something as removed from day-to-day politics as historical research has come under attack under the absurd Article 188. In 2000, a Bavarian court issued an injunction banning a newspaper from making claims in a local history article that a deceased World-War-Two-era local figure had been “War-criminal who was sentenced to death”. Reviewing the historical record, the court said that the deceased man had only been an “alleged war criminal”, not a “Nazi-criminal”, and that the death-sentence-carrying war crime conviction had been “only by Czech Courts in 1945”, whichaccording to the court hadn’t settled the matter of whether he was actually one. Penalties for contravention of the injunction were set at up to one month imprisonment or a not insubstantial 100000 German Marks fine. Other historical researchers have also found their work scrutinized by Article 188 complaints submitted by angry relatives of the long-dead, although usually with less success. In 2013, a Northern German court ruled that a historical case study calling the notorious First World War German colonial military commander Lettow-Vorbeck a war criminal in regards to his activities in South-West Africa at the time did not constitute a crime, because the historical study was constitutionally protected pursuant to freedom of science. Similarly, in the 1960s, a German appeals court over-turned a five month prison sentence
that had been imposed under Article 188 on a journalist who had written a historical piece questioning whether Nazi diplomat Ernst Von Rath, famously assassinated in 1938 in Paris, had been engaged in homosexual activities and had been killed in a sexual dispute. Such pointless legal action not only wastes court time, but is also a clear deterrent to research on important historical issues. If you are on a tight budget or timeline, and receive a legal threat from an incensed relative, wouldn’t it seem much easier to avoid all the legal time-wasting by leaving out that sentence about the war-crimes committed by their deceased ancestor?

Of course, when vague laws exist, is there nothing to stop them from being used counter to the way lawmakers intended. Modern German Neo-Nazis have developed considerable expertise in attempting to use anti-insult laws and libel complaints to hassle journalists and anti-racist campaigners, href="http://www.spiegel.de/spiegel/print/d-13683058.html">a strategy they themselves called “penetrant legalism”. EvenHitler, prior to taking power in 1933, himself filed a vexatious libel lawsuit in 1930 against Karl Rabe,
the editor of the pro-democratic Munich Telegram newspaper. Rabe had been responsible for an article suggesting that Hitler had attempted to bully and threaten Crown-Prince Rupert of Bavaria in case he publically expressed criticism of a ballot measure Hitler has advocating for. Yes, that’s correct, a soon-to-be dictator commanding an army of thuggish, Sturm-Abteilung death squads had his thin skin offended by an editor who documented how he had acted like school-ground bully towards an ageing aristocrat. And the very democratic, judicial institutions he was trying to destroy humoured him by allowing him to bring his vexatious and censorious suit.

Meanwhile, Germany’s cultural and political elites love pointing the finger at supposed violations of free speech and press freedom elsewhere in the world, particularly in neighboring Poland. There, their criticisms of the current Law & Justice Party government were perceived to be so out-of-touch that they attracted furious condemnation even from one of the country’s main opposition leaders, the maverick Pawel Kukiz. He urged them to look “more closely at democracy in your own country”. Perhaps they should take his wise words to heart and start by throwing out Germany’s useless, repressive anti-insult laws. All of them.

A Brief Review of Cheryl Jacobus' Defamation Suit Against Donald Trump And Corey Lewandowski

Political strategist Cheryl Jacobus has just filed a lawsuit against Donald Trump, his calamusphobic bodyguard Corey Lewandowksi, and Donald J. Trump for President, Inc. This is relevant to my interests, so I read it. You can find it here.

I'm not going to talk about the procedural options open to Trump et al., as in my experience New York state civil procedure is an interminable dog's breakfast. But I will comment on the substance. Has Jacobus stated facts which, if believed, support a claim for libel?

Eh. Not very strongly.

The thrust of Jacobus' claim is that the citizens of Trumpelstan were annoyed with her commentary and so falsely asserted that she had begged for a job on the Trump campaign and become hostile when refused. Jacobus claims that it was Trump's team who sought her out, not the other way around, and that after two meetings she saw that they were a pack of lunatics and backed out.

More specifically, Jacobus complains of the following statements about her. By Lewandowski on on MSNBC's "Morning Joe":

She [Megyn Kelly] had Cheri Jacobus on yesterday, who, uh, you know, wanted to talk about Mr.Trump. This is the same person, I'll just tell ya, who came to the office on multiple occasions trying to get a job from the Trump Campaign, and when she wasn't hired clearly she went and was upset by that.

Then this, in a tweet by Trump himself:

Great job on @donlemon tonight @kayleighmcenany @cherijacobus begged us for a job. We said no and she went hostile. A real dummy @CNN

And another Trump tweet:

Really dumb @CheriJacobus. Begged my people for a job. Turned her down twice and she went hostile. Major loser, zero credibility.

Jacobus complains that these false statements unleashed the Trumpalo Uruk-hai upon her life, causing fear and unpleasantness.

If any of this is defamatory, it is only barely so. “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.) Only false statements of provable fact — or opinions implying false statements of provable fact — can be defamatory. How do you tell the difference? You look at the totality of the circumstances surrounding the statement, including the likely understanding of an audience familiar with the forum and the players. Hence, satire from a publisher known for satire isn't defamatory even if it's played straight, because an audience familiar with the publisher and players would spot it for what it is. Courts recognize that in some contexts, statements are particularly likely to be viewed by a familiar audience as mere rhetoric and not fact. Those contexts include politics, litigation, and the internet.

So. Jacobus admits that when approached by Trump's team she explored, and was interested in the possibility of, a job. That excludes the argument that it's defamatory to say you wanted to work for Trump, which certainly would have been mortally offensive to me. It also means that Lewandowski's statement that she came to the office multiple times trying to get a job and that she wasn't hired are literally true and not defamatory.

Trump's characterizations like "loser" and "zero credibility" and and "dumb" and "major loser" and "dummy" are not provable statements of fact, they are mere insults — rhetorical expressions of contempt. They can't be defamatory.

Trump's characterization of Jacobus as "hostile" is probably too indefinite, unprovable, and opinion-based to be defamatory. Whether she's hostile or not depends on a subjective political evaluation of the media appearances Trump was reacting to. That's very unlikely to be defamatory.

So we're left with Lewandowski's characterization that when Jacobus wasn't hired "clearly she went and was upset by that." Could that be defamatory by implying that Trump turned Jacobus down and was angry as a result and framing her commentary as a result? I guess, but it's a very weak argument. Lewandowski is opining, on a political show known for spin, about the reasons for Jacobus' specific statements on a particular episode of another political show. He's suggesting she was mad because she didn't get a job. It's a characterization by an overt self-interested partisan campaign mouthpiece rejecting an opposing political view. It's the equivalent of a dude saying "you shouldn't listen to what she says about me because I dumped her and she's mad." Nobody moderately reasonable takes that as a statement of provable fact. People familiar with the Morning Joe show would not interpret such statements by campaign managers as assertions of literal and provable fact.

The same goes for Trump's tweets. Jacobus says that it is false to say that she "begged" Team Trump for a job or that they turned her down. But these are statements made by a political candidate, who is primarily known for bluster and trolling, on a platform characterized by hyperbole, about the rough-and-tumble world of political consultants and campaign inside baseball. Once again, imagine a mouthy lout saying "that girl begged me to go out with her and then I dumped her." Rational listeners wouldn't expect that to be a factual recitation of events. Rather — as is the case with Trump — listeners familiar with the speaker would interpret it as a narcissist's unserious evaluation of any interaction with him.

In defamation law, there's a popular philosophical question: can someone be "defamation-proof"? That is, can someone's reputation be so awful that no falsehood can make it any worse? There's a flip-side of this as well: can someone be so notoriously full of shit that they are incapable of defamation, because no reasonable person familiar with them would interpret anything they say as provable fact? This is what I call the batshit crazy rule and the Ninth Circuit more decorously refers to as "general tenor of the entire work." I think Trump — or at least Trump on Twitter — presents a good test case of the batshit crazy rule. Trump's Twitter behavior is such a legendary dumpster fire that I think Jacobus will find it very difficult to argue that anyone familiar with it would take what he says as a statement of fact. Sad!

Frankly, the lawsuit seems primarily a vehicle to drop juicy allegations about Trump and Lewandowki in a court document that's absolutely privileged from defamation suit. Jacobus portrays Lewandowski as angry and unbalanced — though to be fair, not as angry and unbalanced as Lewandowski portrays himself day-to-day. Jacobus also asserts that the Trump campaign was being dishonest about its funding and was too cozy with PACs. As little regard as I have for all things Trump, the lawsuit read to me as strictly politics by other means.

2/10 would not lawsuit again.

Some College Thick-Skin Advocates Need A Thicker Skin

If you want to fight the culture of victimhood, you can't wallow in it. If you're going to be an effective advocate for thick skins, you can't have a thin skin. If you're going to fight against the pernicious notion that people have a right not to be offended, you shouldn't be easily offended.

Why do I even have to say these things?

Dateline: Ohio University. College Republicans write "Trigger warning: there are no safe spaces in real life! You can't wall off the 1st Amendment" on the school's "graffiti wall." They're fighting against the culture of victimology, the culture of safe spaces, the culture of trigger warnings, the culture that treats speech as violence and justifies censorship.

Or are they?

In fact, OU College Republicans' rhetoric, and the rhetoric of their supporters in the media, sounds eerily like the rhetoric of triggers and safe spaces.

“It’s our First Amendment right,” Parkhill, a sophomore studying business management, said. “We feel like we’re being silenced and we feel like people are putting our point of view down, which is what we don’t want, so we’re going to fight back and we’re going to say this is our point of view.”

Well, no. You're not being "silenced" if your views are condemned or ridiculed. And "putting your point of view down" is part of the marketplace of ideas. The fact that you feel it doesn't make it true. Isn't that your point?

Members of the OU College Republicans, Parkhill said, feel their opinions are not welcome on campus.

Isn't "we feel unwelcome on campus" exactly what censors say to try to suppress speech they say triggers them?

The OU College Republicans naturally got pushback against their expression. Over at The College Fix, they were treated as oppressed victims in need of succor. The rhetoric is largely indistinguishable from that used by safe-spacers and the perpetually triggered to call for censorship: "they are under siege" "barrage of cyber harassment." And here's Parkhill again:

“Granted, I knew what I was getting into, but I didn’t think it would be that much hate,” he said. “We are basically a minority on this campus. Our opinion is so put down and so crushed, it’s almost like we don’t have a say.”

No it's not, you nauseating tremulous zygote.

The College Republicans point out, quite reasonably, that it's dishonest and ridiculous to say their reference to "trigger warnings" was a "threat," as some imbeciles have said. It's ridiculous to treat their message as some sort of dangerous assault on the delicate feels of their peers. It's preposterous to call for an investigation based on their message. But the OU College Republicans are relentlessly undermining that truth by adopting the very language of thin skins and weak minds that they're criticizing:

“We can’t have a viewpoint on our campus,” he said. “Conservative or even moderate views on campus is considered racist, is considered bigoted. … We are a lot of good people, we just believe in conservative, Republican values. … [But] it’s just unbelievable the amount of scorn we get.”

You have a right to call people weaklings if they demand safe spaces; they don't have a right not to be called that. They have a right to call you a racist; you don't have the right not to be called that. The marketplace of ideas may decide you're full of shit.

Now, can we make a plausible argument that students are too quick to cry "racist," too swift to use scorn instead of reason against conservative ideas? Can we say victim culture is out of control on college campuses? Absolutely. But can we make that point without adopting the rhetoric of the culture we're criticizing? Can we say "people would like to silence me but they won't succeed" instead of "I feel silenced," and "we have a right to express unpopular opinions" instead of "we feel our opinions aren't welcome"? Can we cut out the feels, please?

By indulging in the very rhetoric they are criticizing, the OU College Republicans and their ilk are not helping the fight for more open dialogue on campus. They're hurting it. They're buying into the underlying premises: you're silenced if you feel silenced. You have a right to be welcomed, not just to speak. You have a right not to be "put down" and ridiculed and condemned. By adopting the rhetoric of those premises they are promoting them. The result is that they've built up the culture of victimhood they're criticizing.

Look, guys: you need to cowboy up.

I've Got A Little List

Making lists of disfavored or ill-behaved people seems to be popular these days. Let's check some out!


Location: SJWList.com
Stated Ethos: "You were added to the list because you publicly called for someone to be fired, disinvited, shunned, no-platformed, or otherwise punished or silenced for refusing to submit to the SJW Narrative. The particular incident is linked to your name in the list. Tortious interference is not a joke."1
Actual Ethos: Jumbled, as you would expect from a wiki inspired by a nerve-stapled easily excitable white nationalist. Some entries offer proof that the named person actually called for some sort of firing or disinviting. Others don't. Take, for instance, the entry for artist and author Alison Bechdel:


Now, I don't feel silenced or no-platformed or shunned if someone tells me that a movie I like is sexist, even if I disagree with them. I suppose if you were emotionally and socially stunted then someone criticizing Apollo 13 could be silencing. YMMV.
Is it defamatory? Unlikely. As I frequently discuss here, only statements that can reasonably be interpreted as provable facts can be defamatory; insults and opinions cannot unless they imply false provable facts. To the extent the statements on SJWList don't have supporting links, they seem mostly emotive rather than factual. To the extent entries have links, they are characterizing the information in those links and therefore disclosing the factual basis for their opinions. Moreover, the entire enterprise is probably subsumed by the batshit-crazy rule.
Is it creepy? Meh. To me it's too effortful and impotently angry to be really creepy. I think it tries to be intimidating, and I could see how people could find it creepy if it directs hordes of incel cheetofingers to froth at someone.
Am I mad I'm not on it? YES. Dammit.

Social Autopsy

Location: [not giving them traffic over the lingering suspicion it's a scam or a troll job]
Stated ethos: "We are about to break the internet. Literally." "Users submit a screenshot of a person’s hate-fueled social media post, which is then used to create a profile that includes their full name, place of employment, city of residence and schools."
Actual ethos: "lol i made a kickstarter :)" "Please allow me to explain the law to you based on this quote from Wikipedia."
Is it defamatory? Too early to say. It's not defamatory to quote someone. It's not defamatory to characterize something that someone said (unless, I suppose, you deliberately took it out of context in a way to change its meaning). It could be defamatory if the site managers negligently attributed to someone a statement they didn't actually make. They may look to a "we only allow user submissions" approach so that they can take advantage of Section 230, but that contradicts their claims that they will verify information. Also, it's possible that gathering and exposing data about minors will violate some state and federal laws; I'm still researching that.
Is it creepy? Hell yes. First, it's creepy because it increases my anxiety about how, in the modern world, it is almost impossible to distinguish trolls from stupid people from evil people. (Edited to add: I previously cited a tweet here but it came from a troll posing as them, not from them.) Second, it's creepy because it's aimed at children, and seems to be Clickhole satire brought to life. I accept the first premise (bullies suck) and part of the second premise (bullies are morally responsible for their bullying) and even some of the third premise (it is appropriate for bullying to have consequences) but I can't agree with a platform that seems either intended to, or reckless about, empowering more bullying than it punishes or deters, even leaving other moral issues about minors aside. Also, the project's advocates offer garbled and contradictory plans and explanations suggesting that they are either great performance artists or unusually dim-witted.
Am I mad that I'm not on it? No.


Location: https://blog.randi.io/good-game-auto-blocker/
Stated ethos: You don't have to listen to Gamergaters on Twitter if you don't want to; use this app.
Actual ethos: You don't have to listen to people who follow certain Twitter accounts we associate with Gamergate as a rough cut of who is a Gamergater; use this app.
Is it defamatory? No, as I've said before. They're pretty up front that this blocks people because they follow other people. Most third-party characterizations of people on the list are self-evidently opinion and hyperbole. "Everyone on that list is a sexist/racist/harasser" is almost certainly protected opinion rather than a statement of provable fact, particularly in the contexts in which it is uttered. Moreover, the group is probably too large and diffuse to attribute generalizations about it to any one person. Group Libel is rarely a thing.
Is it creepy? Not to my taste. It's not a list of people by real name, and as far as I can tell no effort has been made to connect the Twitter handles to real humans. Popehat doesn't use it — each Popehat block is artisanal. I generally would not cede my decision-making over whom to block on Twitter to an algorithm based on who follows a set of users, especially when I don't control the set. Sometimes I follow trolls for information and amusement, and I assume the same is true of others. But then, the sort of abuse Popehat gets on Twitter is limited in scope, and generally suitable for hand-banning. We don't get a thousand eggs a week yelling at us. I can see how this sort of tool could be useful to people who do. It's an extremely rough cut, but I don't think it pretends to be anything else. I think many users adopt it as an expressive act: "I reject thee, Gamergate!" That may be silly but then so is lots of expressive conduct. Caveat: if some employer started making hiring or firing decisions based on whether someone is on the list, that would be ignorant, arbitrary, and thoroughly creepy, and would mark it as a company I wouldn't do business with. But then it would be the company that's the problem, not the list. Consider this: if your local police department starts arresting people based on what psychics tell them, the problem isn't the psychics. The problem is the irrational police.
Am I mad that I'm not on it? Yes. Pretty sure I could get on it by following @Nero, but eh. Doesn't seem worth the effort.

The Block Bot
Location: http://www.theblockbot.com/
Stated ethos: You don't have to listen to abusive people on Twitter. "The Block Bot was created specifically for the atheist feminist community and currently includes a strong contingent of transgender social justice activists and intersectional feminists."
Actual ethos: You don't have to listen to people on Twitter if they have been identified as abusive by a group of other Twitter users, sometimes based on sensible criteria and sometimes based upon ideological purity, junior-high-school ingroup squabbling, humorlessness, inability to comprehend satire, binge-drinking, and possibly performance art.
Is it defamatory? Again, No. It pretty explicitly bills itself as a list curated based upon idiosyncratic criteria. "It should go without saying that blockers, as with any other human beings, make assessments based on their own perspectives and world-view and any commentary they make is their own." So, though being on the Block Bot list means somebody has classified you as a Level 1, 2 or 3 baddie, and those levels have unflattering descriptions, it's clear in context that inclusion is subjective-opinion based, and that it's largely an expressive enterprise. For instance, consider the description of Level III: "This may include, but is not limited to, accounts that appear to frequently engage in microagressions, parrot tired talking points, show a sense of entitlement to have a conversation, exhibit a lack respect for the lived experience of others, etc." Once upon a time you could look at what Tweets got someone put on the list, but as far as I can tell that function is no longer available. I was not particularly impressed with what I saw in that regard.
Is it creepy? Eh. In the sense that human interaction is creepy, I suppose. At its best, it identifies and blocks people who are actually dicks on Twitter. At its worst, it makes semi-transparent the judgmental, irrational, and catty nature of human interaction. Honestly. Say that John Doe thinks "I want to give over the decision about whom to block on Twitter to a group of people who say "intersectional" non-ironically." How much are you missing by not being able to interact with John Doe? Now, I have the same caveat as above. To the extent anyone tried to weaponize this by tying handles on the list to real names, I'd start to find it creepy. To the extent that any employer started making hiring or firing decisions based on it, I'd find the employer creepy, ridiculous, and unworthy of my business.
Am I mad that I'm not on it? Definitively. At the risk of being narcissistic I suspect they didn't put me on the list just to spite me. Well trolled.

Look: making lists and following lists and acting based on lists is expressive conduct, both speech and free association. That doesn't make it right; speech and association decisions can be good or evil or neutral. But when people treat this sort of thing as inherently censorious, they're forgetting that the people writing and using the lists have expressive rights too.



FROM: City of Parma Police Department Public Information Officer, Detective Lieutenant Kevin Riley
TO: Citizens of the City of Parma, "Media"
REGARDING: Correction of False Statements Disseminated Through Harassment and Terrorism

As our Vision Statement explains, the City of Parma Police Department is committed to providing the citizens of Parma with lawful environment where all persons can perform their daily routine at any time free from the fear of any type of harassment, injury, or victimization from the criminal activities of any person or entity. Police officers are citizens of Parma too. They, too, have a right to be free of any sort of harassment or victimization or injury, physical or emotional. That is why this Department has taken lawful actions in the course and scope of its law enforcement power to uphold laws prohibiting disruption of public services.  Despite inaccurate and irresponsible media coverage, the Department's initiation of criminal charges against the perpetrator of a destructive and misleading "satire" were appropriate and in the best traditions of American law enforcement practices. The media should leave legal issues, like criminal exceptions to the First Amendment, to the law enforcement experts.

Swift and effective action has ended this particular campaign of lawbreaking. Regrettably, it is now necessary that the Department correct harmful and derogatory misinformation spread by online criminals:

  • Police Chief Robert Miller is popularly known in the Department as "Sir" or "Chief" or "the Boss," not as "Bossy Bottom Bob."  Please accord the Chief the respect to which he is entitled as the leader of a modern professional force.
  • Although the Department is recruiting and does have a firm nondiscrimination policy we are not specifically seeking "every functional illiterate in Cuyahoga County."  Potential recruits who respond before May 1st will be accorded application priority, not "three free tazings."
  • Our tip line does not pay any sort of bounty for any body parts of "messicans" or any other persons.
  • The Detective Bureau Commander's Motto For the Month in February 2016 was "integrity and service," not "RaHoWa Motherfuckers."
  • We do not wear chaps while on duty.  The Department has no information or policy regarding clothing worn off duty, except for misuse of official uniforms.
  • Motorcycle officers will not give you a coupon if you slap their helmets in traffic.  Officers should not be touched in traffic at all.
  • I do not have a sealed juvenile record.  I do not have any juvenile record.  I am a law-abiding person.  I have not killed anyone, and specifically have not killed "an indeterminate number of hobos."
  • Our union representatives help protect our rights and interests in any Departmental investigations and are not actually empowered to execute witnesses.
  • "Lick it or ticket" is not a genuine or authorized City of Parma Police Department public information campaign.

These misrepresentations have caused confusion and disruption in the Department and the City.  Certain agitators assert that the unlawful "parodies" of the Department were clearly jokes and not meant to be taken seriously.  However, there have been several regrettable incidents in which Department officers and staff have acted upon these "parodies," leading to consumption of officer time, waste of taxpayer money, and potential litigation.  To avoid criminal prosecution, any future "parodies" must be labeled prominently and expressed in language reasonably calculated to be understood easily by a City of Parma Police Department officer.  You should feel free to send me a draft to determine if I can understand it.

#FreeStacy — But From What? In Defense of Free Speech Legalism

You should regard anything I say about Robert Stacy McCain with skepticism, because I hate him.

My loathing for him is sincere and entire. My revulsion for him is both conscious and subconscious, like a Donald Trump perforated with asymmetrical holes

That said, I don't regret — not even a little — speaking out for his First Amendment rights in the face of vexatious litigation by unrepentant domestic terrorists and their lickspittles. That's the deal in America, or is supposed to be. We defend the rights of people we hate. We defend the First Amendment from frivolous, censorious litigation — even in favor of unserious hypocrites who advocate frivolous censorious litigation themselves. My only regret about arguing for Robert Stacy McCain's free speech rights is if I passed up any opportunity to say that I feel for him a transport of uncordiality.

Over the last 24 hours the rightward side of Twitter has been in an uproar — captured by the #FreeStacy hashtag — about Twitter's suspension of McCain's main account, @rsmccain. Many see it as a trend in Twitter disproportionately and arbitrarily disciplining conservative voices, as Marc argued last month. Though I've questioned that proposition, it's grown considerably more persuasive since Twitter appointed a "Trust and Safety Council" that appears calculated to have a narrow view of legitimate speech and a broad view of "harassment" (at least insofar as it is uttered by the wrong people.)

I don't know what McCain did (or is alleged to have done) to be suspended, and as far as I can tell nobody else does either. I've seen him say some pretty despicable things, either sincerely or mastubatorilly, so I'm not presuming that the suspension was based on nothing. Nor do I presume that any report of his conduct was honest, nor that any analysis of his actions was rational or principled.

So do I shout #FreeStacy?

Sort of.

When I say #FreeStacy, I mean "Twitter, you've providing an increasingly shitty product, I'm expecting to be banned from it arbitrarily soon, and I've been thinking for some time about where to focus social media attention instead." Or "Twitter, before I thought this was mostly about low-level employees acting on their own biases. But I'm increasingly convinced by the argument that you've decided to offer a product aimed at a specific political group." Or "Twitter, you sell yourself as separating harassment from free speech, but you don't deliver."

In other words, rather than indulging in cries that Twitter is engaged in fascism, or book-burning, or Nazism, or totalitarianism (all of which I've seen said today), I'm saying that Twitter is engaging in a mix of private speech and product development that I don't like, and demonstrating that its marketing patter about free expression has traveled beyond the realm of acceptable sales puffery into the noisome Kingdom of Bullshit.

Some people say this is pedantic. Some currently popular ideas are premised on blurring the distinction between state action and private action against speech: "cultural libertarianism," "thick liberty," "free speech values."

They're wrong.

The right to free speech is America's most important right because it's how we identify and defend all rights. But you can't defend a right you don't understand or can't define. Distorting or blurring the definition of a right undermines it. In short: free speech legalism matters.

You think that Twitter has a civic or moral obligation to uphold "values of free speech"? Fine. How do you distinguish that from people arguing that Twitter has a moral and civic obligation to defend people from offense? If you say that Twitter ought to uphold "American values" of diversity of views and the freedom to utter unpopular views, how do you respond to the argument that Twitter ought to uphold "American values" of equality and "decency"?

To quote a noted food critic quoting a Roman emperor, of each particular thing ask: what is it in itself? What is its nature? What does a private business do? It makes money and advances the agendas of its owners and/or leaders. They act according to two conservative principles: caveat emptor and there ain't no such thing as a free lunch.

Blurring the classification of things leads to exactly the sort of nonsense that Robert Stacy McCain normally rails against. Take a university. Is it a thing that teaches students? Or is it a place that empowers social justice? Is it a place for young adults, or is it a place for children in need of protection from mean ideas? Or take it up a few levels: do governments exist to impose their will upon us, or do they exist for us to impose our will upon them?

I classify Twitter's action as bad customer service and as private speech I don't like because of my conservative views. Those views include the following: private companies (which are individuals organized to do things as efficiently and safely as possible) have a right to free speech and free association. Corporations are people! They don't lose those rights because they get too big or because someone thinks they look like public entities if you squint. It's okay for corporations to sell products, or engage in speech, that people hate. People and corporations don't owe you anything: not a free lunch, not a free platform. You're responsible for reading the contracts you sign, physically or digitally. Whether or not you support anti-discrimination laws governing private entities, they can't be reconciled completely with free speech and free association rights. Or, put in law-professor-speech, anti-discrimination values and free speech values are in tension.

At least I thought those were conservative views. I mean, how can you argue that a bakery shouldn't have to make a gay marriage cake, but Twitter should have to offer a platform to someone they think (not unreasonably) is a total douche?

So, will I say #FreeStacy? Absolutely! For every hour McCain is gone, some feminist remains unfrothed-at. For every absent moment, there's a dead black kid whose Facebook page hasn't been thoroughly vetted. So #FreeStacy. By which I mean: free him from your foolish marketing decision to adopt a suspension system that predictably leads to arbitrary suspensions, because it's bad business and I'm a customer who doesn't like it. Free him by repenting your ill-considered and destructive expression in the form of a "Trust and Safety Council" that looks like a bad SNL skit. Free him from a system that — whether it's a marketing tool or a sincere gesture of opposition to harassment — will lead inevitably to button-mashing abuse of your report systems and endless (and unprofitable) internecine warfare amongst your very worst customers (or products, whatever). While you're at it, if you can, free him and his supporters from the Bernie-Sanderseque delusion implied by their rhetoric: that they have a right to speak on your platform that supersedes your right to run it the way you want. If you convince enough of them, maybe one will invent a good alternative I can seek out the day you suspend me.

Popehat Signal: Urologist Threatens Penis-Enhancement Forum

New Popehat Signal courtesy of Nigel Lew.  Thanks, Nigel!

Popehat Signal courtesy of Nigel Lew. Thanks, Nigel!

It's time for the Popehat Signal, the feature in which we seek pro bono help for an online writer threatened with frivolous and censorious litigation.

Thundersplace.org is a forum devoted to discussing penis enhancement of various sorts. There's a forum for everything on the internet, you know.

Last April a user wrote a post describing a harrowing experience with surgical penis enhancement. How harrowing? I read it and I cringed so much my cringer broke. I am completely without cringe now. I can watch primary debates without any change to my affect.

The anonymous user claimed to be a patient of Dr. James Elist, a Beverly Hills urologist. Suffice it to say that this was not a positive consumer review.

This, my friends, is America. So Dr. Elist hired an attorney, Elliott Benjamin of Parker Mills LLP in Los Angeles. Mr. Benjamin sent a legal threat to both thundersplace.org and, incredibly, Cloudflare. Mr. Benjamin asserts that thunderspace.org has an obligation to verify the accuracy of statements by forum users:

You have permitted these inaccurate and negative postings to appear on the Website without seeking to verify the veracity of their contents.

Mr. Benjamin demands the usual suspects:

Consequently, on behalf of our client, we hereby demand that (1) you immediately remove the negative content posted by your member "txhog", together with all related threads and postings, from the Website, (2) thundersplace.org immediately cease and desist from any further derogatory postings of any kind about Dr. Elist, (3) you immediately provide us with the name and contact information of the user posting such disparaging comments, and (4) you post an announcement in a conspicuous place on the Website acknowledging that the defamatory statements have been removed due to your inability to verify their accuracy. Failure to comply with the foregoing demands will leave our client with no alternative but to take action and seek all legal remedies available to him.

Mr. Benjamin's letter on behalf of Dr. Elist bears several prominent signs of aggressive bogosity. First, the letter utterly fails to specify what statements of fact in the forum post are false. You know my mantra: vagueness in defamation threats is a hallmark of meritless thuggery.

Second, and even more importantly, Mr. Benjamin's bumptious threat ignores the law governing the situation. His premise — that the forum is obligated to police user comments and verify their accuracy — is absolutely wrong as a matter of law. Under Section 230 of the Communications Decency Act of 1996, thundersplace.org is absolutely not liable for defamation for things that its forum users write; its owners are only liable for things they write themselves. This is not a close call. Nor is it an obscure or difficult point of law; it is the single most relevant, obvious, and dispositive legal issue concerning Mr. Benjamin's threat.

As always, such a threat raises questions. Did Mr. Benjamin send a legal threat whilst completely ignorant of the law governing it? Or did he know the law and just hope that he could dishonestly bully someone who didn't? For that matter, did Mr. Benjamin advise his client Dr. Elist of the Streisand Effect — the principle of internet culture under which his threat (all the more so because of its transparently feckless nature) would naturally draw several orders of magnitude more eyes to the anonymous complaint on the forum? I wrote Mr. Benjamin to ask, but received no response.

Regrettably, our broken legal system allows litigants and lawyers to inflict massive expense, stress, and violations of rights upon people whether they act from ignorance or mere thuggery or both. California has a strong anti-SLAPP statute, and thundersplace.org stands an excellent chance of prevailing on an anti-SLAPP motion and recovering attorney fees if Dr. Elist and Mr. Benjamin proceed on their meritless theory. But thundersplace.org — which does not make its owners much money — can't afford to hire a California attorney.

Can you help? Can you look past the somewhat snigger-worthy circumstances and assist an American in vindicating their constitutional and statutory rights? Our system is broken, and our rights are therefore too often merely hypothetical. But every time someone like you stands up for someone who can't afford legal assistance, our rights become a little less hypothetical and a little more actual. Every time a lawyer agrees to stand up against a patently frivolous claim like this one, it becomes a little harder to bully people through feckless threats. Every time a lawyer steps in and a threatener slinks away, a few more threats are deterred. The robustness of our freedom doesn't just depend on the big cases, the Cohen v. California or Brandenburg v. Ohio. It depends upon lawyers willing to contribute a few hours to making rights a reality. Will you help? Please consider it.

Updated With Awesomeness: A response already! David Casey is a repeat signal-responder — a few years ago he was instrumental to the resolution of a bogus dental threat. Now David Casey and his partner Brian Lynch have stepped up to offer assistance to the forum targeted here. They deserve thanks. You may not be the target of this threat, but when lawyers like David and Brian work pro bono, they are defending everyone's rights. Thanks!

Milroad Trkulja Is Not A Gangster; Stuart Gibson Is, I Suppose, A Lawyer

These days it's not easy for a legal threat to distinguish itself. There are so many of them, and it's common from them to be bumptious and ignorant.

That's why I have to tip my hat to Stuart Gibson, an attorney at the Australian firm Mills Oakley. He has risen above the pack.

Mr. Gibson charges heedlessly into a crowded subgenre: threatening people for merely talking about you. The genesis of his bluster is a 2012 post at Techdirt discussing an Australian court victory against Google by one Milroad Trkluja, who was displeased that Google searches of his name brought up pictures of an underworld figure. That's not so bad; Googling my name brings up pictures of Jabba the Hutt cosplay. Anyway, Techdirt's article criticized the decision but made it perfectly clear that Mr. Trkulja was not, in fact, a gangster, and that his image only got connected with a gangster because he had the misfortune to be an innocent bystander in a shooting.

More than three years later, Trkulja sent Techdirt and Google a bizarrely entertaining legal threat complaining about a comment on the 2012 story that suggested that he was the sort of "gangster" who uses courts rather than guns. Trkulja demanded money, the deletion of the offending comment and anything ever written about him, and to block Techdirt. This was amusing and noteworthy; it's exactly the sort of flailing threat Techdirt writes about all the time.

Enter Mills Oakley attorney Stuart Gibson. He sent Techdirt a threat that, while much shorter and less floridly pro-se nutty than Trukulja's, was in its own way just as ridiculous.

This is the rotten core of it:

The matter that you have published conveys false and defamatory meanings including (but not limited to) the following:
Our client is a gangster;

That our client by virtue of his legal claims is incompetent and unfit to be a litigant;

That our client by virtue of his legal claims is a ridiculous litigant;

That our client is a criminal and a participant in organised crime;

That our client is unfit to be a litigant

None of these meanings is defensible. Our client is not a criminal and has never been a gangster nor associated with such persons. Accordingly there is no factual basis for the imputations published.

This is entertainingly preposterous. Techdirt never suggested Trkulja is a gangster; a commenter jokingly suggested he is a litigation gangster. Techdirt's suggestion that Trkulja's legal threat is ridiculous (which Gibson spins as "unfit to be a litigant") is a classic case of opinion based on disclosed facts — the fact in this case being Trkulja's nutty legal threat.

Gibson finishes with bluster about how his firm has enforced Australian judgments against other companies, about how American law will not protect Techdirt, about how Techdirt's free speech defense is "absolute nonsense," and so forth.

Gibson is, of course, utterly full of shit. This is exactly the sort of bullying threat that the SPEECH Act, 28 U.S.C. section 41202, is designed to render impotent. Australia is beautiful and its people are lovely and its laws have many things to recommend them but, with respect to protection of free speech, it is a jurisprudential shithole. Congress passed the SPEECH Act to ensure that law-thugs like Mr. Gibson could not silence speech by obtaining defamation judgments under legal regimes that lack adequate protections for free speech. Mr. Gibson is free to get an Australian judgment against Techdirt — indeed, Australian courts are popular with libel tourists and folks with ambitions to control speech worldwide. But unless Techdirt has assets in Australia, that judgment will be worthless.

Under the SPEECH Act, American courts won't recognize and enforce foreign defamation judgments unless the party seeking to enforce them carries the burden of proving that (1) the foreign court's exercise of personal jurisdiction over the defendant satisfied American concepts of due process; (2) the foreign court's ruling complied with Section 230 of the Communications Decency Act of 1996, which says that web sites can't be held liable for defamation for comments left by third parties; and (3) either the foreign court offers as much free speech protection as American courts, or American courts would have reached the same result on the defamation claim. Stuart Gibson's threats on behalf of Mr. Trkulja fail all three of those tests. Australia has no plausible personal jurisdiction claim over Techdirt; Gibson and Trkulja are trying to hold Techdirt responsible for a comment left by a third party; and Trkulja's and Gibson's silly claims would never stand up to First Amendment scrutiny. Among other things, Australia apparently treats truth as a defense, requiring defamation defendants to prove that their statements were true, rather than requiring the plaintiff to prove that they were false. That, standing alone, is enough to fail the SPEECH Act test. Trout Point Lodge, Ltd. v. Handshoe, 729 F.3d 481, 489 (5th Cir. 2013) (Canadian judgment was not enforceable under SPEECH Act because, among other things, it placed burden of proving truth on defendant). Moreover, Mr. Gibson's suggestion that Techdirt can't make fun of Trkulja for writing a very silly threat is sheer idiocy, and I suspect would be even under Australian law.

One can imagine why Mr. Trkulja would act this way — he's an angry litigant, not an attorney. But why would Stuart Gibson, who appears to be a real-life lawyer at a reputable law firm, act this way?

There are several possibilities. One is that Stuart Gibson is willfully ignorant of relevant American law. This theory has some appeal, especially when you consider that this is the entirety of his analysis of the SPEECH Act in his threat to Techdirt:

You are not protected by the Speech Act.

Another possibility is that Stuart Gibson knows the relevant law but is hoping that Techdirt doesn't — that he hopes that Techdirt is ignorant or easily intimidated enough to yield to legally meritless demands. This merely demonstrates another form of willful ignorance; the briefest investigation of Techdirt's history would reveal that it stands up to stupid legal threats all the time, and in fact publicly mocks them. If this is the case, then Gibson has failed to follow one of the core rules of writing an effective and non-own-foot-shooty takedown letter: he didn't investigate his target.

A third possibility is that Stuart Gibson is a hotheaded buffoon incapable — whatever he knows or doesn't know — of maintaining communications discipline. This explanation, too, has a certain appeal. I wrote Mr. Gibson seeking comment and some of his responses suggested a failure of self-control:

What you can say is that I have challenged Mike to accept Service of Proceedings and to espouse his theories in Court here.I have been trying to effect Service on him.

We are at this time trying to serve him/it.
I do not think it understands Australian Defamation Law.
We have no Free Speech law in this country.

What are you doing writing for this trashsite

And so forth.2

There is a type of gormless lawyer who becomes incensed when his or her idiotic demands are not met with immediate compliance; Mr. Gibson appears to be such a buffoon.

Finally, it's possible that Mr. Gibson is actually very clever and is just setting this matter up for Mr. Trkulja for another Australian lawsuit against Google seeking damages for the existence of websites that do not fluff him. Lord knows such train wrecks are possible there.

Mr. Gibson and Mr. Trkulja perform useful service: they illustrate exactly why Congress was right to pass the SPEECH Act, and exactly why we should be thankful for America's unusually broad and robust defense of free speech. Do you want people like Stuart Gibson dictating what you can say and whom you may ridicule? After all, Mr. Gibson is the sort of lawyer who says "we have no Free Speech law in this country" — and is happy about it, because it allows him to act like . . . well, like a gangster.