Hello! You've Been Referred Here Because You're Wrong About The First Amendment.

Welcome! Someone has referred you to this post because you've said something quite wrong about the First Amendment.

I apologize for this impersonal approach to your mistake. I would prefer to offer you an artisanal response to your wrongness, something that would respect and celebrate the unique ways that you've taken one of the most fundamental aspects of our mutual civic heritage as Americans and shat your ignorance upon it. Unfortunately, there are quite a few of you and only one of me, and I'm busy, and lazy. Also, quite frankly I feel that if I have to explain these things to just one more person, I may go quite mad. I don't mean mad in the vaguely amusing, sympathetic, relatable ways that people expect from me. I mean mad in an uncouth and alarming sense that will likely result in my calamitous misuse of some implement residing in the dark marchlands between tool and weapon, such as an adze.

So. Constrained as we are by this impersonal medium, let's discuss why you are completely wrong.

If you said something like "The First Amendment says 'Congress shall make no law,' and Congress isn't involved here, so it's not a First Amendment issue."

Congratulations! You've read the First Amendment. Even if you've ignored the last century of discourse about it, this raises you above most of the populace, particularly on the Internet.

You're right that the plain language of the First Amendment only limits Congressional power. But you've ignored some American history. Don't worry: you've only ignored a century and a half of it. The Bill of Rights was originally understood to limit the power of the federal government without limiting the states. But in 1868, after some recent unpleasantness, we amended the Constitution to add the Fourteenth Amendment, which includes this language: "No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws." By its own terms, the Fourteenth Amendment forbids the states from infringing certain rights.

But which rights? Well, in the early 20th Century, the United States Supreme Court decided that certain fundamental rights enumerated in the Bill of Rights are included in the concept of liberty identified in the Fourteenth Amendment and therefore protected from infringement by "due process of law." This process — under which the court decided that the Fourteenth Amendment incorporated by reference rights from the Bill of Rights and made them enforceable against the states — is called incorporation, and the notion is called the incorporation doctrine. The Supreme Court has decided that most, but not all, rights from the Bill of Rights are incorporated by the Fourteenth Amendment and therefore protected from infringement by states. The Supreme Court decided — or, to be more accurate, assumed — in a 1925 decision that freedom of speech under the First Amendment is one of the rights enumerated in the Bill of Rights that the states may not infringe because it is incorporated by the due process clause of the Fourteenth Amendment.

Therefore, the First Amendment does apply to actions by states and their political subdivisions (cities, counties, state agencies, etc.), and has for more than ninety years. You're wrong. Please stop being wrong and asking other people to be wrong with you.

If you said something like "the First Amendment only stops the government from censoring you so it doesn't apply to this civil case, which is one individual suing another."

Welcome back! You're still wrong. The First Amendment limits your ability to sue people.

Civil lawsuits employ government power in two ways. First, they are premised on laws passed by legislatures. A defamation lawsuit is a lawsuit based upon a defamation law enacted by a state, which is an action by the state. On occasion, they're based on a nebulous collection of non-statutory precedents called common law, which are nonetheless recognized and enforced by the government through the courts. Second, civil lawsuits employ government power to force you to come to court and force you to pay any resulting judgment against you.

So in 1964, faced with an Alabama defamation judgment against the New York Times for running an advertisement about abuse of civil rights protesters by local officials, the Supreme Court noted that the First Amendment obviously applies to private civil actions that employ state power. "The test is not the form in which state power has been applied but, whatever the form, whether such power has, in fact, been exercised." Because civil lawsuits aimed at speech invoke state power to attack speech, they are limited by the First Amendment. That doesn't mean that all civil lawsuits attacking speech are absolutely barred. It means that First Amendment analysis applies to them, and may or may not provide a defense to them.

If you think about it even a little, this is the only sensible interpretation. Under a contrary interpretation, a state could pass a law saying that private parties could sue you for offending them, or annoying them, or for expressing certain political views the state disfavors. People could then use the coercive power of the courts to sue you based on those laws. Although I admit there is a certain appeal to a regime under which I may ask a judge to compel you to pay my bar tab if you say stupid and ignorant things about the First Amendment, I recognize that it is not consistent with ordered liberty.

So: you're wrong, stop trying to spread wrong like gonorrhea in the Theater Department, try to be right, etc etc etc.

Fault: It's Yours, But Not ONLY Yours

You are at fault for not educating yourself about how our most fundamental American rights operate. However, you are not the only one at fault. Wrongness is not a zero-sum game. I also blame your teachers, although I sympathize with them. Also, America's press could not do a worse job informing you about the First Amendment if it tried, which frequently I believe it does. If you would like to know more about some of the ways that the American media shares blame for you being wrong, consider these classic media free speech tropes. If you would like to observe some of the ways that the educational system has failed us, attempt conversation with a college student.

I bid you good day.

Popehat Signal Update: Awesome Team Gets Great Appellate Result in Frivolous Case By AIDS Denier

Way back in 2013 I lit the Popehat Signal to get pro bono help for J. Todd Deshong, a blogger and HIV-positive AIDS activist. Woo merchant and AIDS denialist Clark Barker filed a frivolous lawsuit against Deshong, claiming that Deshong's critical web sites defamed him and infringed his trademark. A legal Dream Team assembled swiftly and formidably, and in 2014 that Dream Team got the frivolous complaint dismissed.

So far so good. But you can't fight vexatious litigants just by winning motions; you have to inflict upon them the costs of their actions. The Dream Team sought attorney fees under the Lanham Act, which allows a prevailing party to get fees in an "exceptional" case. The federal district court denied the request, saying that there wasn't enough evidence that the plaintiff acted in bad faith.

But that's not the right question, the Dream Team asserted. Today, the United States Court of Appeals for the Fifth Circuit agreed. They reversed the refusal to award fees and sent it back for the trial court to decide under the right standard:

We merge Octane Fitness’s definition of “exceptional” into our interpretation of § 1117(a) and construe its meaning as follows: an exceptional case is one where (1) in considering both governing law and the facts of the case, the case stands out from others with respect to the substantive strength of a party’s litigating position; or (2) the unsuccessful party has litigated the case in an “unreasonable manner.” See Octane Fitness, 134 S. Ct. at 1756. The district court must address this issue “in the case-by-case exercise of their discretion, considering the totality of the circumstances.” See id.

This standard is much friendlier to the targets of frivolous lawsuits. It doesn't require an inquiry into subjective bad faith (which judges are often loath to find) and allows consideration of both the objectively meritless nature of the claims and the methods used to litigate. That will make it easier for other Dream Teams to get attorney fees when censorious plaintiffs abuse the legal system to suppress speech.

Congrats to Paul Alan Levy and Gill Sperlein for this appellate win.

Satire Is Satire Even When People Fall For It, Mr. Jarvis

For years I've been trying to figure out who made this point: all satire is a shared joke between the writer and the reader at the expense of a hypothetical third person — the dupe — who takes it literally. The existence of that third person is a specifically contemplated feature, not a bug.

This is so both as a matter of law and as a matter of art.

Yesterday Esquire ran a satirical column in the voice of Jeff Jarvis. It's not up at Esquire any more, but you can see it here. The satire — penned by Rurik Bradbury, long-time Twitter satirist of Jarvis — mocked the pretense and vapidity of modern internet-changes-everything blather. To my taste, the satirical nature is quite clear:

The Innovation Party will be phablet-first, and communicate only via push notifications to smartphones. The only deals it cuts will be with Apple and Google, not with special interests. We will integrate natively with iOS and Android, and spread the message using emojis and GIFs, rather than the earth-killing longform print mailers of yesteryear. This will give us direct access to netizens, so we can be more responsive than any political party in history.

But tastes differ. Jeff Jarvis thought it was not clear and not permissible:

WhereCanIOrderPopcorninBulk

Esquire subsequently altered the piece to make the satire more explain-the-joke-to-you explicit, then axed it completely without explanation. Both Esquire and Jarvis have their supporters and detractors, and Jarvis wrote an angry post expressing outrage that he continues to be the object of satire.

There are many pieces of this. One is legal. That piece is very easy.

Bradbury's Esquire satire is very clearly protected by the First Amendment. I wrote about a case frighteningly on point. Esquire previously did a satirical article with mock quotes from Joseph Farah of WorldNet Daily and author Jerome Corsi. They sued, claiming defamation. The United States Court of Appeal for the D.C. Circuit crushed their arguments. Remember: only things that could reasonably be understood as provably false statements of fact can be defamatory. Satire is not a statement of fact. In deciding whether something could reasonably be taken as an assertion of fact rather than satire, courts look to what an audience familiar with the publication and players would understand. Said the Court:

The article’s primary intended audience — that is, readers of “The Politics Blog” — would have been familiar with Esquire’s history of publishing
satirical stories, with recent topics ranging from Osama Bin Laden’s television-watching habits to “Sex Tips from Donald Rumsfeld.” See Findikyan Decl. Exs. 35–42. At the same time, followers of “The Politics Blog” were politically informed readers.

. . . .

With that baseline of knowledge, reasonable readers of “The Politics Blog” would recognize the prominent indicia of satire in the Warren article.

In other words, the notion that Jarvis is silly and his views mockable may be inside baseball, but the relevant question is whether readers familiar with that inside baseball would recognize it.1

The fact that some people — inattentive people or people unfamiliar with the subject matter — may take the satire literally does not stop it from being satire. It's expected, the Court explained:

But it is the nature of satire that not everyone “gets it” immediately. For example, when Daniel Defoe first published The Shortest Way with the Dissenters, an anonymous satirical pamphlet against religious persecution, it was initially welcomed by the church establishment Defoe sought to ridicule. See JAMES SUTHERLAND,ENGLISH SATIRE 83–84 (1958). Similarly, Benjamin Franklin’s “Speech of Miss Polly Baker,” a fictitious news story mocking New England’s harsh treatment of unwed mothers, was widely republished in both England and the United States as actual news. See MAX HALL, BENJAMIN FRANKLIN & POLLY BAKER:THE HISTORY OF A LITERARY DECEPTION 33–35, 87–88 (1960).

Again, the joke is not only at the expense of Jeff Jarvis. The joke is, in part, at the expense of people who read carelessly. The joke is "Jeff Jarvis is silly, and by God, so is our society." The root of all comedy is human fallibility, and this article is funny in part because even though it's on a site known for satire by a frequent writer of satire in the voice of a frequent target of satire using exaggerated satirical arguments some people will still be inattentive, uninformed, or simply dumb enough to fall for it. That's why Jarvis's defenders are flat-out wrong when they say silly things like "It's the knowledge that something is satire that makes it satire in the first place."

Legally, this is not a close call.

What about morally? Jarvis and his supporters suggest that it's unethical for journalists to run satirical pieces written in somebody's name. It's not a new argument. Meghan McCain freaked out over apt satire of her writing voice. Visitors here occasionally become indignant over satire. People may get upset because satire written in the target's own voice is so effective against both of its targets. It illuminates the silliness of the person it is aping, and the more people fall for it the more powerful the argument that the mockery is on target. It strikes at the heart of the pretense of internet denizens – that they are well-informed and understand what the hell is going on.

Could there be satire that is unethical because it is genuinely deceptive? I suppose so. (Hopefully not here.) But I think it would have to be a genuine attempt to deceive by a publication not known for satire — something where the publication should expect that even reasonable inquiry and thought would not reveal it. This is not such a case. Esquire is known for satire. Bradbury is know for satirizing Jarvis and Jarvis is known for being satirized. The text of the satire was, well, overtly satirical. And as Bradbury told me, "[T]he bio stated specifically that this person was "not @Jeffjarvis", and the author photo was wearing both a beer helmet and a Santa hat, in late April.""

I don't think ethics prohibit a magazine known for satire from engaging in satire. I don't think ethics prohibit magazines from ridicule, even if that ridicule is part of a pattern. I don't think ethics require satirists to pitch to the lowest possible common denominator, to make their satire ABC-at-8:00-PM obvious. Ethics doesn't require catering to carelessness or foolishness or ignorance. If anything, it's unethical for the media to encourage those bad traits by dumbing down the ancient, deadly, and noble art of satire. One of the Bad Things about the internet is that people foolishly fail to exercise critical thinking about things they find on it. I don't share an ethical viewpoint that indulges and even encourages that trend.

Satire is a matter of taste. If Esquire decided this wasn't to their taste after all, that's their right, although the sequence of events makes them look foolish. But if Esquire caved to explicit or implicit legal threats, or to feckless arguments about journalistic ethics that undermine the very notion of satire, then shame on them.

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!

SJWList.com

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."2
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:

DontSilenceMeBro

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.

ggAutoblocker

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.

OFFICIAL CITY OF PARMA POLICE DEPARTMENT PRESS RELEASE

PROTECTANDSERVEANDSHUTYOURMOUTH

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.