Lawsplainer: How The Sixth Circuit Stood Up To Hecklers (And Cops)

Aren't you going to blog about that Sixth Circuit case?

You mean Merrick v. Diageo Americas Supply, Inc., clarifying whether the Federal Clean Air Act preempts common law claims against an emitter, and whether that question is susceptible to interlocutory review?

You know that's not what I mean.

It's a fascinating case. It uses the term "whiskey fungus." If you could grow whiskey like a fungus that would be awesome. I could go for some whiskey fungus right now.

Stop it. You know I'm talking about the big free speech case.

The case about the heckler's veto? Why should I write about it? Eugene Volokh already 'splained it. He's occupied the field. Don't you understand preemption?

You know you want to write about it anyway.

You're not the boss of me.

I'll just wait.

Goddammit.

There. Doesn't it feel better when you surrender? Anyway, what's the case and what's it about?

The case is Bible Believers v. Wayne County. It's about a 2012 incident in which a group called the Bible Believers showed up at the Arab International Festival in Dearborn, Michigan, preached against Islam, and left when they were threatened with arrest for "disorderly conduct" in the face of an angry crowd.

What does that have to do with veto power? What is a heckler's veto, anyway?

"Heckler's veto" is a term used to describe situations where authorities limit or punish speech because of angry, threatening, or violent responses to the speech. For instance, it's been used to describe a school banning students from wearing the American flag on Cinco de Mayo because other students were reacting violently, or removing public transit advertisements when they generate threats. The concept is this: if you allow a "heckler's veto," that means people who don't like speech can suppress it by reacting to it violently or aggressively.

So why was this heckler's veto in court?

The Bible Believers and some members sued the county, the sheriff, and several officers for violations of constitutional rights. They argued that when the cops reacted to an angry crowd by telling the Bible Believers to leave, they violated their rights.

Why was the crowd angry?

The Bible Believers are assholes. They were carrying a severed pigs head "to keep Muslims at bay" and carrying signs that say "Islam Is A Religion of Blood And Murder" and yelling about Mohammed being a pedophile and telling the Muslims at the festival that they were going to hell and so forth.

So basically Breitbart.com: The Live Show.

I don't think they were Trump-fluffing. But otherwise yes.

Did the crowd get violent?

Sort of. Some people threw plastic bottles and debris. The crowd size ebbed and flowed. One guy got hit in the face. At one point the crowd chased them around and threw bottles and garbage. It wasn't a gang brawl, but it was a bad scene.

So what did the cops do?

They told the kids throwing things to cut it out a few times. They rode through on horses and quieted the crowd once. But eventually they pushed through the crowd and told the Bible Believers that they had to leave or be cited for disorderly conduct because they were "creating danger" and impacting public safety by riling up the crowd. So the Bible Believers left.

So what did the Bible Believers do?

This is America! So they sued. But the federal trial court decided that the cops acted permissibly in the face of danger, and that they were protected by qualified immunity anyway. A three-judge panel of the Sixth Circuit agreed. But then the Sixth Circuit agreed to rehear the case "en banc," meaning "with all or at least a whole bunch of the judges on the circuit participating and deciding."

Is it a good decision or a bad decision?

It's a very good decision for free speech advocates. The majority went out of its way to lay out the relevant First Amendment issues in a clear manner and address them, and wound up vigorously supporting the right to say things that crowds hate, and the obligation of police to protect unpopular speech rather than yield to a heckler's veto.

Here's how the majority described what it set out to do:

In this opinion we reaffirm the comprehensive boundaries of the First Amendment’s free speech protection, which envelopes all manner of speech, even when that speech is loathsome in its intolerance, designed to cause offense, and, as a result of such offense, arouses violent retaliation. We also delineate the obligations and duties of law enforcement personnel or public officials who, in the exercise of the state’s police power, seek to extinguish any breaches of the peace that may arise when constitutionally protected speech has stirred people to anger, and even to violence.

In other words, this isn't a "let's rule as narrowly as possible to resolve this case" decision. It's a "let's try to clarify this entire area of law" decision.

So what's the legal issue? Is a heckler's veto unconstitutional?

Not exactly. Courts have referred to the heckler's veto in various different contexts, but it's hard to draw from those diverse situations a clear methodology. Here's what this court said to start it off:

Free-speech claims require a three-step inquiry: first, we determine whether the speech at issue is afforded constitutional protection; second, we examine the nature of the forum where the
speech was made; and third, we assess whether the government’s action in shutting off the speech was legitimate, in light of the applicable standard of review.

That's nicely organized. Free speech cases aren't always clear on the order of analysis.

So the first question is whether the heckled speech is protected in the first place?

Exactly. Here the Sixth Circuit said it was, and that's one of the most important parts of the decision. The cops argued that the Bible Believers were inciting a riot because they were saying incendiary things likely to cause violent reaction. Not so fast, says the Sixth Circuit. It's only unprotected incitement if you try to, and intend to, cause violence:

The Brandenburg test precludes speech from being sanctioned as incitement to riot unless (1) the speech explicitly or implicitly encouraged the use of violence or lawless action, (2) the speaker intends that his speech will result in the use of violence or lawless action, and (3) the imminent use of violence or lawless action is the likely result of his speech. 395 U.S. at 477. The Bible Believers’ speech was not incitement to riot simply because they did not utter a single word that can be perceived as encouraging violence or lawlessness. Moreover, there is absolutely no indication of the Bible Believers’ subjective intent to spur their audience to violence. The hostile reaction of a crowd does not transform protected speech into incitement.

So: that's a no on the "saying things that make people really mad is incitement" theory. That's huge. It's rarely been articulated so clearly.

What about fighting words? I hear about fighting words a lot. Isn't it fighting words?

OK. I'm not saying that it's never fighting words. But it's never fighting words.

Yeah, the cops argued the fighting words doctrine. But the Sixth Circuit noted how narrow that doctrine is.

A second type of speech that is categorically excluded from First Amendment protection is known as “fighting words.” This category of unprotected speech encompasses words that when spoken aloud instantly “inflict injury or tend to incite an immediate breach of the peace.” Chaplinsky v. New Hampshire, 315 U.S. 568, 572 (1942); see also Sandul v. Larion, 119 F.3d 1250, 1255 (6th Cir. 1997). We rely on an objective standard to draw the boundaries of this category—no advocacy can constitute fighting words unless it is “likely to provoke the average person to retaliation.” Street v. New York, 394 U.S. 576, 592 (1969) (citation and internal quotation marks omitted) (emphasis added). Offensive statements made generally to a crowd are not excluded from First Amendment protection; the insult or offense must be directed specifically at an individual. R.A.V. v. City of St. Paul, 505 U.S. 377, 432 (1992) (Stevens, J., concurring); accord Cohen, 403 U.S. at 20 (defining fighting words as a “direct personal insult”). The Bible Believers’ speech cannot be construed as fighting words because it was not directed at any individual. Furthermore, the average individual attending the Festival did not react with violence, and of the group made up of mostly adolescents, only a certain percentage engaged in
bottle throwing when they heard the proselytizing.

As I have mentioned before, just about every court decision in the last half-century has rejected using the fighting words doctrine to justify censorship. The Sixth Circuit could have pointed that out, but didn't — it just pointed out that the doctrine, if it survives, is limited to face to face, direct to one individual words that would provoke an average person to immediate violence. That's narrow.

So the speech was protected. But the crowd was getting violent, right? Can't the police take steps to de-escalate a violent situation?

Absolutely. But what the court said here is that the evidence showed that the police didn't even try methods other than shutting the Bible Believers down. First, the Sixth Circuit articulated the core idea behind a prohibition on hecker's vetoes:

In a balance between two important interests—free speech on one hand, and the state’s power to maintain the peace on the other—the scale is heavily weighted in favor of the First Amendment. See, e.g., Terminiello, 337 U.S. at 4. Maintenance of the peace should not be achieved at the expense of the free speech. The freedom to espouse sincerely held religious, political, or philosophical beliefs, especially in the face of hostile opposition, is too important to our democratic institution for it to be abridged simply due to the hostility of reactionary listeners who may be offended by a speaker’s message. If the mere possibility of violence were allowed to dictate whether our views, when spoken aloud, are safeguarded by the Constitution, surely the myriad views that animate our discourse would be reduced to the “standardization of ideas . . . by . . . [the] dominant political or community groups.” Id. at 4–5. Democracy cannot survive such a deplorable result.

Next, the court seemed to articulate a law enforcement duty not merely to refrain from silencing the controversial speaker, but an affirmative duty to protect them:

Nor can an officer sit idly on the sidelines—watching as the crowd imposes, through violence, a tyrannical majoritarian rule—only later to claim that the speaker’s removal was necessary for his or her own protection. “[U]ncontrolled official suppression of the privilege [of free speech] cannot be made a substitute for the duty to maintain order in connection with the exercise of th[at] right.” Hague v. Comm. for Indus. Org., 307 U.S. 496, 516 (1939).

That's very unusual, because the courts generally don't impose affirmative duties on cops to protect people, only duties to refrain from doing things.

Ultimately the court didn't say that cops can never silence a speaker in order to keep the peace. Rather, they said that such a decision is going to get the most exacting type of scrutiny — second-guessing — that the court can offer:

The rule to be followed is that when the police seek to enforce law and order, they must do so in a way that does not unnecessarily infringe upon the constitutional rights of law-abiding citizens. See Gregory, 394 U.S. at 120 (“[A] police officer[’s] . . . duty is to enforce laws already enacted and to make arrests . . . for conduct already made criminal.”) (Black, J., concurring). The police may go against the hecklers, cordon off the speakers, or attempt to disperse the entire crowd if that becomes necessary. Moreover, they may take any appropriate action to maintain law and order that does not destroy the right to free speech by indefinitely silencing the speaker. Fundamentally, no police action that hinders the speaker’s freedom of speech should be deemed legitimate in the eyes of the Constitution unless it satisfies strict scrutiny, which requires the police to achieve their ends by using only those means that are the least restrictive with respect to the speaker’s First Amendment rights.

That's huge because of the lack of typical credulous deference to law enforcement decision-making. The normal stance of courts is "cops have to do what they think is right for law and order and we're not going to second-guess their call in the heat of the moment." The Sixth Circuit is saying "no, if a cop shuts someone up to keep the peace, we're going to look very carefully to see if there is anything else the cop could have done instead."

The Sixth Circuit found that the evidence showed that the cops here made no serious effort to control the crowd, and instead went straight for the shut-up-the-speaker remedy.

So the court found that threatening the Bible Believers with citation was a free speech violation?

Yes. And based on the same analysis the court said it was also a violation of their right to free exercise of religion, and a violation of their equal protection rights, because the cops preferred the mob over the speaker.

But wait. When cops violate people's rights, don't they usually get off because they have immunity?

Yes. Cops have qualified immunity, meaning that their actions are protected unless their behavior violates "clearly established constitutional or statutory rights" that "a reasonable person would have known."

When there's a contentious argument about whether a cop's action was a violation of rights in the first place, courts usually say that the right in question wasn't clear enough to remove the cop's immunity. Not here. The court said the right in question was clear:

The Deputy Chiefs’ position is untenable and unsupported by the record. As is evident from the Supreme Court opinions detailed above, and as explicitly stated in Glasson, “[a] police officer has the duty not to ratify and effectuate a heckler’s veto . . . . Instead, he must take reasonable action to protect from violence persons exercising their constitutional rights.” 518 F.2d at 906.

The court ended with a flourish:

But the answer to disagreeable speech is not violent retaliation by offended listeners or ratification of the heckler’s veto through threat of arrest by the police. The adults who did not join in the assault on the Bible Believers knew that violence was not the answer; the parents who pulled their children away likewise recognized that the Bible Believers could simply be ignored; and a few adolescents, instead of hurling bottles, engaged in debate regarding the validity of the Bible Believers’ message. Wayne County, however, through its Deputy Chiefs and Corporation Counsel, effectuated a constitutionally impermissible heckler’s veto by allowing an angry mob of riotous adolescents to dictate what religious beliefs and opinions could and could not be expressed. This, the Constitution simply does not allow.

So, this is just a circuit case, not a Supreme Court case. How important is it?

Very important. Across the country, people in heckler's veto situations will be citing this, and it will draw other courts to agree or disagree. It may even reach the Supreme Court.

Thanks. There. Was that so hard?

I will destroy everything you love.

White People Are Good With Cows, Brown University People Are Bad With Free Speech

Last month I picked on students at Wesleyan. Today, it's the turn of students at Brown.

A few weeks ago the Brown Daily Herald published a rather odd and meandering column by M. Dzali Maier '17 entitled "The White Privilege of Cows" that pondered whether some cultures thrived more than others because of circumstance or because of biological differences. For example:

Thus, whenever I see a white college student, reeking of privilege, I recall the coincidence (or causal relationship) between white physical features and animal agriculture. It is still a question whether or not evolution endowed Eurasians with skills utilized to capitalize on the good luck of livestock animals, or whether Eurasian features just happen to be a poor man’s clue to agricultural history.

Um. Okay. "White People: Naturally Good With Livestock?" I see a series of awkward meetings with a thesis adviser in Maier's future.

I'm generally uninterested in investing much time or effort into exploring whether human ethnic groups have innate biological differences that contribute to "success." I start out very skeptical, since it's a field that is historically so driven by junk science and bigotry. Now? Well, to paraphrase the Simpsons, even though the subject may not be inherently racist, it's #1 with racists. Ultimately I don't see it changing how I treat people, or how the law should treat them, whatever the outcome of the inquiry.

But it's a concept that the marketplace of ideas can deal with very handily. College juniors asserting in student newspapers that white folks may be naturally good with cows does not strike me as an event requiring official intervention.

I'm not sure that's the prevailing sentiment of modern students, or of faculty.

To the extent that anything at Brown is notable, the angry reaction to Maier's column was. The paper added a cringing apology at the start of the column.

We initially made the decision to publish the column, as we generally edit opinions columns for style and clarity alone, giving our columnists great leeway in making their argument as part of our commitment to freedom of expression. We regret that decision and believe it’s clear that this column crossed the line from an opinion we merely disagree with to one that has no place in our paper. The Herald is committed to an accurate and thoughtful opinions section, and we are taking steps to prevent similar issues in the future.

Students and recent graduates called openly for censorship of speech like Maier's. Students demanded that the paper apologize and commit to ill-defined ideological boundaries. An English professor opined that speech can cause physical and emotional harm. Notably, students attacked not only the column, but the sentiment that the paper ought to be free to publish it. Take Alex Seoh '14:

When you defend harmful speech, you are not just a bystander. You are a barrier to social change. Whether you ultimately delay the realization of civil rights and gender equity by weeks, months or years, you are delaying our progress, and you will be on the wrong side of history. Freedom of speech should be valued but not when it infringes upon the freedom of others. It is clear how “The white privilege of cows” infringed upon the rights of people of color here at Brown.

Students Liam Dean-Johnson '16, Aidan Dunbar '16, Anastasiya Gorodilova '16, Nico Sedivy '17, and Madison Shiver '17 resorted to the familiar argument that free speech for some inhibits the rights of others whose feelings are hurt. Though they tried to frame their argument as being about the paper's editorial standards, ultimately their point is that the concept of free speech should serve a particular ideological point of view:

Censorship has a particular meaning that has been lost in these debates. Censorship is the exercise of power to suppress challenges to the status quo. People of color calling attention to racism does not constitute an overbearing power structure that will limit free speech. The oppressed by definition cannot censor their oppressor.

It probably doesn't occur to those students to question what constitutes the status quo, and what constitutes power, on a particular college campus. Fish don't know they're swimming.

Some faculty in the Brown community pushed back and supported Maier's right to write the column and the paper's right to run it. So did some students. But like the Wesleyan incident, Brown's tumult reflects that an appetite for censorship is common and mainstream, not an outlier.

Should student newspapers exercise some editorial control in deciding which opinion columns to run? Sure. Most papers aren't going to run an editorial arguing that the moon landing was faked or that the sun revolves around the Earth. Could a student paper have declined to run Maier's column on the grounds that, scientifically, it's gibberish? Maybe. But would that paper be subjecting every opinion column to intellectual rigor, or just the opinion columns that fell outside a range of popular viewpoints? Public clamor for censorship — and demands that papers apologize for publishing offensive viewpoints — do not create an environment where student journalists can make such decisions.

Bill Cosby's "Self Defense" Defamation Argument Fails

Back in June I wrote about a lawsuit three women filed against Bill Cosby asserting that he and his agents had defamed them by announcing that their allegations of sexual assault were lies. One of the most interesting issues Cosby raised was whether he was entitled to protection under the "self-defense" doctrine — the idea that simply denying an accusation against you can't be defamatory. After an unusually lengthy delay, a federal judge in Massachusetts has denied Cosby's motions to dismiss, letting the defamation claims move towards trial.

The judge's order is lengthy, but well-written and an excellent example of a judge thoughtfully addressing a complex multi-factor issue. The order touches on numerous defamation-related doctrines and makes some points worth noting if you're interested in free speech litigation.

Choice of Law

The defamation suit against Cosby is premised on diversity jurisdiction. That is, it does not assert federal claims, but is between residents of different states and has an amount in controversy of at least $75,000. Federal law applies to federal claims, state law (generally) applies to state claims. But which state law? Usually it's the state in which the federal court sits. But this case raises one of the exceptions. Here the court applied a rule that in a defamation case, a federal court will apply the law of the state where the plaintiff lived, if the defamatory statement was published there. That adds strategic complexity to defamation suits filed in federal court under diversity jurisdiction. Different states have different laws applying to defamation (for instance, different statutes of limitations), and a plaintiff's attempt to choose a forum might be thwarted under this doctrine.

Single Publication Rule

One of the plaintiffs in this case sued Cosby based on statements his lawyers made in 2005 that the Washington Post reported in 2014. The 2005 statements would be outside the relevant statute of limitations; the 2014 article would be within it. Cosby sought to apply the "single publication rule" — the doctrine that a single publication of a statement yields only one defamation claim. Put another way, a defamatory book that sells 10,000 copies represents one defamation claim, not 10,000. Cosby argued that under this rule the 2014 statement should be treated as merely another iteration of the 2005 statement, and thus outside the statute of limitations. The court disagreed, finding that the plaintiff had stated facts sufficiently to assert that Cosby's agent caused the statement to be repeated in 2014, and that such a repetition was actionable. This demonstrates the limits of the single publication rule; it may not protect republications caused by a defendant.

Analysis of Fact vs. Opinion

Next the court analyzed whether the plaintiffs had pled facts showing potentially defamatory statements — that is, whether they had cited provably false statements of fact rather than opinion.

First, applying the law of California — where the plaintiff in question lived at the the court found that the statement "this is a 10-year-old, discredited accusation that proved to be nothing at the time, and is still nothing" is potentially defamatory because it suggests (incorrectly) that the plaintiff's allegation had been disproved in some legal proceeding. In doing so the court rejected Cosby's attempted application of the so-called "predictable opinion" doctrine, under which California courts have found that certain statements should be taken as opinion because they are made in the context of responding to litigation-related allegations. The idea is that everyone expects, and reasonably understands, that people embroiled in litigation will utter opinions that they are right and the other side is wrong. The court declined to apply that doctrine outside the context of pending litigation. In doing so, the court noted that the statement was not couched in figurative language or hyperbole, which could have undercut the impression that it was meant to be factual.

Next, the court applied Florida law to analyze the statements about the Florida plaintiffs. The court found that the phrases “fabricated or unsubstantiated stories,” “ridiculous claims,” "unsubstantiated, fantastical stories" and "an absurd fabrication" could, in context, be potentially provable statements of fact.

The issue here is really the power of context. Cosby argued that a mouthpiece's statements in response to a public accusation are understood to be opinion, and the court disagreed. I think that the court's view of "fact" is too expansive and its view of "opinion" is too narrow. In context, I think these statements are clearly an advocate's opinion about contested claims, and would be normally understood as such. The exception may be the "proved to be nothing" comment, which could, I suppose, falsely suggest that the claims were legally tested and failed. But other than that aside, this isn't a case where the denial included some gratuitous and potentially false statement about the accuser. Rather, the statements amounted to "everything that person said is bullshit."

Self-Defense Privilege

The court also rejected Cosby's invocation of the so-called "self-defense privilege," which is an embodiment of the context argument discussed above. The privilege, where it's recognized, allows someone accused of wrongdoing to say that the accuser is a liar. The court, noting that California and Florida law applied, found that neither state recognized the privilege. Moreover, the court noted that where it's applied the privilege is conditional — that is to say, it only makes statements immune to defamation when they are uttered in good faith. As a practical matter that makes the privilege almost useless in litigation — a plaintiff need only assert that a defendant's utterance was in bad faith — knowingly wrong — to make the privilege irrelevant.

The bottom line: lawyers, be wary of your public statements denying accusations against your client.

Serious Questions Raised By My FIRE Interview

So FIRE — the Foundation for Individual Rights in Education — interviewed me about free speech and anonymity and stuff.

The video raises question.

1. Why has no one ever taught me to shave properly? What the fuck, Dad?

2. Is the distracting way my wattles shake when I talk the reason that I have difficulty interacting with animals and young people?

3. I look more credible in black and white. Is there a way to screen for only color-blind jurors?

4. Do I really talk like that?

5. No really. How am I not punched in the face more often?

6. I think the grey hair at the temples works for me. Is there an appropriate way to approach people sideways? Or would I look like a crab? A huge, bewattled crab?

This Royal Throne of Feels, This Sheltered Isle, This England

When I talk about how completely appalling the United Kingdom's approach to even mildly upsetting speech has become, I am aware of the mote in my own eye. The United States has all sorts of speech problems too, many of them related to a broken legal system that favors cash over justice, and a populace with an increasing appetite to go as full-on censorious as the UK.

But the UK's just so openly and obviously awful about speech.

Case in point: Bahar Mustafa, a "welfare and diversity officer" for a student union at University of London, is being charged with a crime for mean tweeting.

Mustafa rose to attention when she suggested that men and white people shouldn't come to a protest event. This, combined with her use of the ironic hashtag #killallwhitemen on her personal Twitter account, made her a target of right-wing pearl-clutching and hand-wringing. But she didn't engage in that fatuity in America, where she might have just been the talking point of the week. She foolishly did it in England, where trespass unto feels, particularly online, subjects you to actual criminal charges. As a result, she's been charged with two crimes: "sending a threatening letter or communication or sending by public communication network an offensive, indecent, obscene or menacing message."

Seriously.

The hashtag "#killallwhitemen" is an in-joke, an example of somewhat belabored signalling and irony with a dash of trolling. It's meant in part to ridicule overblown rhetoric directed at people like Mustafa. It's not a true threat (no men are specified, no time or place is specified, no means are specified, and it's obviously not meant to be taken literally) nor a genuine exhortation to violence (ditto). In a sensible legal system it shouldn't generate anything more than an eye-roll. But in a feels-based legal system, it's actionable.

And it teaches a few lessons.

First, you censorious Guardians of Feels on the Left: if you thought that the norms you created wouldn't be used against your "own side," you're fools. It is apparently your theory that the law is sexist, racist, and every other -ist, driven by privilege and wealth, and that free speech norms serve to protect rich white guys — yet somehow exceptions to free speech norm will be imposed in an egalitarian, progressive way. That is almost indescribably moronic. Go sit in the corner and think about what you have done.

Second, purveyors of speech-scandals of every sort: you think it can't happen to you? Mustafa complained:

She also accused the media of embarking on a 'witch hunt and shameful character assassination'.

Gosh, really? You mean a joking, satirical, off-the-cuff in-joke can be twisted into a media shitstorm? Do tell. You mean that people will pretend not to understand humor or irony in order to whip up outrage about a reference or in-joke? Imagine. So — will you participate in the next orgy of outrage against someone you don't like?

Finally,

She said: "There have been charges laid against me that I am racist and sexist towards white men.

"I, an ethnic minority woman, cannot be racist or sexist towards white men, because racism and sexism describe structures of privilege based on race and gender.

"Therefore, women of colour and minority genders cannot be racist or sexist, since we do not stand to benefit from such a system.”

Cool story bro. But nobody outside of academia is obligated to pretend to take it seriously. If you become indignant when someone calls you a racist or sexist because dogma says you can't be, you are (1) not a serious person and (2) playing into the hands of your most bad-faith critics and (3) missing the point, which is that accusations of racism and sexism untethered from reality can be pointed at anyone.

Live by the sword, die by the sword.

Updated to add: A few people have asked whether Mustafa may actually be facing charges over these tweet suggesting that violence against Tories at rallies is justifiable:

IRVERYTHOUGHTFULPRSN

For those of you who can't see the image, those tweets show Mustafa telling a Guardian columnist that "any violence that happens to tories at an anti #tori #demo ain't violence. Its self defence."

I won't speculate on how U.K. law would treat that. It's somewhat closer to the line of either incitement or threat under American law, but not a whole lot closer. It suggests a somewhat more specific context for violence — anti-Tory rallies — but still isn't "directed to inciting or producing imminent lawless action and is likely to incite or produce such action" under the Brandenburg test. It's much closer to arguing the moral or theoretical justification of violence (albeit badly), which is protected speech. Nor is it a true threat, because objectively it cannot be taken as a serious expression of intent to do harm.

Of course, it's utterly contemptible. Would Mustafa support the statement if we turned it around to say "any violence that happens to foreigners at a UKIP rally is self-defence?" I doubt it. But then Mustafa is not a personally, intellectually, or morally serious or decent person. She's a wad of cretinous, self-serious juvenile dogma.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

FTC Sues Weight Loss Company Roca Labs Over Gagging Customers

You may recall Roca Labs, the "no surgery" weight-loss food supplement company that really hates being criticized — so much so that they entice their consumers1 to agree to a clause that prohibits them from saying anything negative about the company.  Roca Labs is serious about this clause, using it as a basis to sue (or threaten to sue) a number of critics.

Well, for Roca Labs, things just went from bad to the FTC is suing us in the middle of Florida bad.

[Read more…]

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

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

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

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

Any Report From Any UN Body About Speech Warrants Scrutiny

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

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

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

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

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

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

Scrutiny Means Actual Scrutiny, Please

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

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

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

General Concerns About How The Commission Views Free Speech

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

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

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

Concerns About the Broadband Commission's Specific Policies

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

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

Here's the parts that are worrying.

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

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

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

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

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

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

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

Be Skeptical

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

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

Let's Applaud Wesleyan's Student Censors For Honesty

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

I find that unpersuasive.