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."1
Actual Ethos: Jumbled, as you would expect from a wiki inspired by a nerve-stapled easily excitable white nationalist. Some entries offer proof that the named person actually called for some sort of firing or disinviting. Others don't. Take, for instance, the entry for artist and author Alison Bechdel:

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.

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

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

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

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

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

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

So do I shout #FreeStacy?

Sort of.

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

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

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

They're wrong.

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

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

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

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

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

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

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

Popehat Signal: Urologist Threatens Penis-Enhancement Forum

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

Popehat Signal courtesy of Nigel Lew. Thanks, Nigel!

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

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

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

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

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

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

Mr. Benjamin demands the usual suspects:

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

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

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

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

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

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

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

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

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

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

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

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

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

This is the rotten core of it:

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

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

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

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

That our client is unfit to be a litigant

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

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

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

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

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

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

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

You are not protected by the Speech Act.

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

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

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

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

Ken
What are you doing writing for this trashsite

And so forth.2

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

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

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

A Response To Marc: Institutions, Agendas, and the "Culture War"

Earlier this week Marc asserted that Twitter is "taking a side in the culture war" wars by removing the identity-confirming blue check from the account of Milo Yiannopoulos, who is what we refer to these days as a personality, like an unusually literate Kardashian. I think Marc is blurring the difference between individual and institutional action.

But let's get this out of the way at the start: Twitter is a private company. Conservative extremist that I am, I believe that private companies have free speech rights. They use those rights to create their brand. Conservatives normally approve of this. They question, for instance, why the government should be able to force a bakery to bake a cake for a same-sex marriage when that contradicts the business' beliefs and brand. Many progressives, on the other hand, applaud such government intervention. Cases like this have an odd way of flipping that dynamic: conservatives cast about for legal theories that might let the government regulate how private businesses deal with speech they don't like, and progressives suddenly applaud private autonomy.

We feel that places like Twitter are a public place, and ought to be run like a public forum. But it's self-indulgent to mistake our feelings for reality or law. Twitter is free to us. It makes money (if it makes money) by serving our eyeballs to advertisers. Our feelings and desires are relevant to Twitter only to the extent it wants to brand itself or wants to retain sufficient eyeballs to sell. Otherwise it's irrational to expect Twitter to care what we want. In deciding how the Kylo Ren action figure ought to be posed on the box art, Disney does not consider the sentiments of the Kylo Ren action figure. Nobody's entitled to a free corporate platform run the way they like: this, too, is supposed to be a conservative ideal. You get what you pay for, and we aren't paying. Can we threaten to vote with our feet and go be somebody else's eyeball supply if we don't like how Twitter is run? Of course we can, just like we can refuse to eat at Chik-Fil-A if we don't like the owners' politics. But if we couch it as a right, we look silly.

But on to Twitter's side-taking. I think Marc probably overstates Twitter's focus and degree of deliberation. Big companies, even when run by ideologues, tend to make decisions like big companies, not like individuals. The decision-making looks less cinematic and more cynical. The focus tends to be on branding, but mostly on money-making, avoidance of unpleasantness, reduction of cost, and ease of use. Twitter's line employees are almost certainly disproportionately liberal, and by assigning command-and-control of individual account decisions to them, the impact is probably that evaluations of abuse complaints will have a liberal bias. Similarly, if you make a corporate decision to police harassment (or at least pretend to), and the people doing the policing have a bias, then the results will have a bias. But that's not the same as a deliberate decision to take sides; it's a cost-driven, practicality-driven decision. Consistency in such decision-making is expensive and troublesome. Running decisions up the chain to ensure consistency on inherently subjective calls costs time and money. Moreover, Twitter's lack of clear articulated standards about exactly what speech will get you in trouble is a feature, not a bug. If you have clear articulated standards, then there will be endless rules-lawyering about why this cases fell under the definition but that case didn't, and you will be more vulnerable to legal attacks (for instance, from people saying that you ban folks of one ethnicity for conduct but folks of another ethnicity get a pass, which could even create a viable claim). Again: the fact that Twitter kinda looks like a public forum if you squint doesn't stop it from being a big business.

In short, I think Marc substantially overstates the coherence and intentionality of Twitter's side-taking.

If Twitter is taking sides, then it's being uncharacteristically incompetent.

Look: Milo's a troll. There's nothing inherently wrong with being a troll. Some trolls are amusing. But de gustibus non est disputandum. I prefer somewhat more subtle trolls. Milo's a troll in the tradition of Ann Coulter, saying outrageous things and benefiting from both the fist-pumping of the like-minded and the profitable outrage of people who think it's sensible to feed trolls. Milo's no Ann Coulter, of course, but it seems he aspires to be number two, and number two tries harder. To my taste Milo's trolling is too loud, too precious, too busy, too edgelord-twee. Plus, he strikes me as a rather blatant huckster. Only fickle fate has led to him trying to sell me anti-feminist tropes rather than extended warranties. He says some phenomenally nasty things, and sends chortling heaps of clumsily animated body soil to threaten and curse at people he calls out. He does so to an extent that I believe Marc significantly understates. Does he genuinely hate the people he reviles? Does he actually believe the more shocking lines he delivers in self-conscious and belabored fashion, like a dull eighth-grader attempting Macbeth? I rather doubt it. He's probably indifferent to them, and to the impact of his words. But he likes the attention — the clicks and the credulous adulation and the money. Whomever Milo hates, Milo loves Milo.

Given that, Twitter's action is like throwing Milo into the brier patch and throwing hundred-dollar-bills in after him. The removal of the silly blue check is utterly insubstantial, but promotes Milo's conservatives-are-persecuted-and-liberals-are-evil narrative. It's free publicity. To his audience suggesting that he harasses ideological opponents is a promotion, not a rebuke. It's like banning a hot dog stand from one side of the park on the explicit grounds that the hot dogs are too delicious. He should be sending them some sort of fruit basket. It is, in short, more like fumbling decentralized decision-making and less like a centralized agenda.

I'd be interested in seeing Marc's evidence of systemic bias in Twitter's approach to what is harassment and what isn't. I have noticed anecdotal differences. But then I've also noticed plenty of bad conduct from "the right" that hasn't been punished. My strong suspicion is that the difference is not the result of a corporate agenda, but of a routine corporate decision to decentralize decision-making.

I'll probably stay on Twitter, knowing that I could get kicked off at any time by some low-level decision maker who doesn't like me. When I don't want to take that risk, I'll pay for my platform — like here.

[Sometime soon, I want to say more about how blurring the line between First Amendment violations and "spirit of free speech" violations leads to all sorts of bad attitudes, like thinking that your speech can suppress mine.]

Lawsplainer: Was FAU Prof. James Tracy Fired in Violation of His First Amendment Rights?

I have a question.

Of course you do.

You know that dude James Tracy?

The Florida Atlantic University professor who's a crazy conspiracy theorist? The dude who thinks that mass shootings like Sandy Hook were faked by the government? The dude who sent a certified letter to the parents of a murdered child demanding proof that the child had ever existed? Yeah. I know of him.

So I see that FAU fired him.

Yes. In December they sent him a notice of intent to fire him, with a ten-day window to respond. They claim he didn't respond. So on January 5 they sent him a letter firing him.

Can they do that?

Can who do what?

Stop being so obtuse. Can FAU fire James Tracy?

The question's way too vague. Can they fire him for what, under what?

Why are you so damned pedantic? Can they fire him for being a sicko grieving-parent-abusing whacko-conspiracy-theorist? Or is that some sort of First Amendment violation?

Okay. That's easier. I was worried you were asking me whether the termination violated FAU's collective bargaining agreement with its professors.

Oh! Good point. Did it? Can you read the CBA and tell me?

I would rather stick needles in my eyes. But, since CBAs for educators and law enforcement are generally designed to insulate them from any consequences for their actions, I would not be the least bit surprised if Professor Tracy has a decent argument that he was wrongfully terminated under the CBA. But I'm not going to research it for you.

Ok. But what about the First Amendment? Um . . . I have an embarrassing question.

Imagine my shock. What?

This dude on Twitter was saying that the First Amendment is irrelevant because it says "Congress shall make no law" and FAU isn't Congress.

Yes, that's the "let's pretend the last 100 years don't exist" argument. He's wrong.

The First Amendment by its plain language only restricted Congress. Section 1 of the Fourteenth Amendment, ratified after the Civil War, says "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." Beginning in the 1920s, the Supreme Court held that the Fourteenth Amendment necessarily applied the strictures of most of the Bill of Rights to the states, because those rights were necessary among the "liberties" protected by the due process clause of Section 1 of the Fourteenth Amendment. That process is called incorporation, and the rule that applies it is the incorporation doctrine. The Supreme Court "incorporated" the First Amendment in 1925, finding that free speech was one of the fundamental liberties protected from state infringement by the due process clause of the Fourteenth Amendment. Now most (but not all) of the rights in the Bill of Rights have been applied to the states under the doctrine.

So, Twitter dude's argument lost 90 years ago.

So, does James Tracy have a First Amendment right not to be fired from Florida Atlantic University for his speech?

Sort of.

That's not helpful.

It's a complicated doctrine, because FAU is wearing two hats: the hat of a state actor (fully restrained by the First Amendment), and the hat of an employer (not fully restrained by the First Amendment). The government has much more freedom to fire people for speech while wearing its employer hat than it has to punish people while wearing its government hat.

I discussed the issue at length in 2013, if you want cites and quotes.

In brief: when the government fires an employee for speech, courts go through a multi-step doctrine. First, they ask whether the speech was on a matter of public concern. If it wasn't — if the speech was about some petty internal squabble not of interest to the public — the First Amendment doesn't prevent the firing at all. If the speech in question is on a matter of public concern, courts engage in an alarmingly touchy-feely balancing test, weighing the government employer's interest in an orderly and efficient workplace against the speech rights of the employee. Courts take into account things like whether the speech restriction is content-based (that is, whether it censors some viewpoints but not others), the circumstances of the speech, the strength of the employee's interest in the speech, whether the speech genuinely disrupts discipline and order and interferes with workplace relationships, and so forth.

Wow. How can a government employee tell how that balancing act is going to come out?

Excellent question. They can't. But the cases allow some broad generalizations. Courts will give very substantial weight to a government employee's speech outside of work on outside public issues (as opposed to, say, speech attacking coworkers or supervisors), and will require a very substantial showing of resulting workplace disruption to allow discipline based on it. Courts will give public employers much more freedom to regulate workplace speech (by, for instance, banning pornography in the workplace) and more freedom to punish speech that threatens workplace harmony by attacking supervisors, coworkers, or "customers" (like, for instance, a teacher's blog insulting her students.)

And that ain't all. It gets more complicated.

How?

Well, there's a doctrine under which a government employer can fire you for your speech, without using the balancing test, if your speech was "pursuant to official duties." In other words, if the speech is part of your job, you're not protected by the First Amendment. That's called the Garcetti doctrine, after the Supreme Court case that announced it.

Wait a minute. Doesn't that mean a university could fire a professor if they didn't like what the professor taught?

Sounds like it, doesn't it? Fortunately, the Garcetti court didn't resolve whether the doctrine applies to universities, and one federal appeals court has already held that it doesn't.

But if James Tracy makes a First Amendment claim against FAU, the court may not reach any of these questions.

Why?

Well, FAU claims they didn't fire Tracy for being one of America's most prominent public lunatics. They say they fired him because he refused to turn in conflict-of-interest forms listing his outside activities (like blogging and speaking), gave inconsistent statements about whether he used FAU resources for those activities, and didn't respond to requests to remedy the problem.

So is Tracy out of luck?

No, but it makes his case harder.

First, a court isn't obligated to accept FAU's claims about the reasons Tracy was fired. Tracy could argue that FAU's offered reasons were pretextual — that the real reason was his unpopular speech. Tracy might do that, for instance, by showing that other professors weren't fired for not turning in their forms, or that FAU only became concerned about the forms once public outcry about Tracy reached a recent crescendo. Tracy doesn't have to prove that his speech was the only reason he was fired; he only has to prove that it was a "substantial" or "motivating" factor in the decision. If he can make that showing and prove that FAU was actually substantially motivated by his speech (and he's got pretty good circumstantial evidence of that, I think), then a court would have to go through the balancing test described above.

(Of course, since FAU has fully committed to the we're-not-firing-him-for-speech argument, it would be much harder for them to argue that Tracy's speech was also so disruptive of the university that it justified his termination.)

Second, I suppose that Tracy could argue that FAU's conflict-of-interest-form requirement itself violates the First Amendment — that it's a violation of his free speech rights to require him to disclose and describe his outside speech about matters of public interest. In his favor, he's got the fact that courts will probably protect speech of instructors in a university environment more vigorously than any other public employee speech. But the conflict-of-interest form requirement is content-neutral (that is, it doesn't say anything like "disclose all Republican affiliations" or "explain all psychotic blogs you write") and directed towards something in which FAU has a legitimate interest. I'd be interested to see how someone fleshes that argument out.

Don't you think it's good that they fired him?

My heart says yes, but my head says no.

He seems to be a truly awful human being, or a truly disturbed one. It's hard for me to comprehend how anyone can rely on his instruction on any topic when he holds such bizarre conspiracy-theory views.

But American state universities will suppress viewpoints they don't like in a hot second if you let them. I believe in very strong barriers against them doing so, which necessary protects some evil people, just as the First Amendment protects evil speech by people who aren't professors. Also, I think that you can generally count on schools to find a pretext to fire professors for unpopular speech if you let them. That doesn't mean that professors should be able to insulate genuine misconduct by uttering unpopular speech, but it does mean that we should scrutinize academic firings very carefully when they occur in the context of public outcries about disfavored speech.

Ohio Judge Tim Grendell Is Popehat's Censorious Asshat of 2015

The votes are in. With a commanding lead of 10.2% over the nearest challenger, Ohio Judge Tim Grendell is Popehat's Censorious Asshat of 2015.

2015CensoriousAsshatWinner

Congrats, Judge Grendell.

Honestly Grendell wasn't my choice. But I can see how he won: he's emblematic of the vapid pettiness of power. Grendell abused his contempt power in a fit of pique at insignificant criticism and offered smug Youtube-commenter-level justifications when challenged. Like many censors, he wraps himself in the First Amendment when it suits him. Electing Tim Grendell isn't about just Tim Grendell; it's about how many censorship stories are the result of authority conferred upon mediocre minds and small spirits. Never stop fighting them.