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.1

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.

2015: Another Bad Year for Blasphemers

Popehat is pleased to offer a second guest post by Sarah McLaughlin. Sarah works for the Foundation for Individual Rights in Education (though the opinions expressed here are her own) and is interested in free speech and civil liberties. You can follow her on Twitter at @sarahemclaugh.

At the conclusion of 2012 and 2013, Ken undertook annual surveys of the state of blasphemy laws, and their enforcement, around the world. I did the same for this year, while paying close attention to the way that individuals have also played a significant role in punishing people accused of blasphemy. From the horrific January 7 Charlie Hebdo attack and Saudi Arabia’s first flogging on January 9 of blogger Raif Badawi (who was found guilty of insulting Islam in 2014 and sentenced to 1,000 lashes and 10 years in prison), there were early signs that 2015 would be another year where blasphemy would be punished harshly by governments and vigilantes alike[1].

How Blasphemy Was Punished This Year

Of the many dark entries in this year’s review, at the forefront stands ISIS. It is perhaps unsurprising that ISIS’ penal code, published in late December of last year, promises a death sentence to anyone found guilty of blaspheming Islam, Allah, or Muhammad. Who knows how many people have been executed under it this year[2]?

Saudi Arabia—which threatened to sue Twitter users who compared its justice system to ISIS'[3]—dispenses harsh punishments to those accused of blaspheming Islam in a manner fairly similar to that of a certain militant jihadist group that shall remain nameless, demonstrating the conduct that can apparently be expected from countries on the UN Human Rights Council. While Raif Badawi’s flogging punishments were halted over the course of the year, his wife claims they will soon resume and he remains imprisoned. In February, a man was sentenced to death (likely beheading, as is the Saudi Arabian way) for cursing God and Muhammad and hitting a Koran with a shoe. A month later, an Indian man was arrested (in Saudi Arabia) for liking a post with “blasphemous content,” causing it to appear on his page. That he did not intend for it to do so is apparently irrelevant. Last month, artist and poet Ashraf Fayadh was sentenced to death for apostasy, a charge apparently supported by the content of years-old poems and “the testimony of a few witnesses.” By the time Fayadh was sentenced, Saudi Arabia had already beheaded at least one hundred and fifty one people, many of whom been found guilty of nonviolent crimes including blasphemy, apostasy and, most often, drug offenses.

Like Saudi Arabia, Iran, on track to execute one thousand people this year, treats blasphemy as a serious crime—violators are usually charged with “spreading corruption on earth.” This fall, Iranian courts decided that activist Soheil Arabi will spend 7 years in prison as punishment for “insulting the Prophet” on Facebook, and must prove his faith and knowledge of Islam in monthly meetings. This is actually an improvement over his earlier sentence: death.

Saman Naseem, a 17-year-old man scheduled to be executed in February after being tortured until he admitted to being guilty of “enmity against God” and “corruption on Earth,” was missing for months in early 2015, leading his family to believe Iran had gone through with a secret execution. In July, Amnesty International learned that Naseem had been granted a retrial, so there is hope that Naseem will be found innocent, or at least given a lighter sentence. However, given that it took over two years for Iran to reach that conclusion, there’s little reason to believe that Naseem will receive fairer treatment this time from a fundamentally unfair system.

Pakistan has seen a number of convictions and killings this year as well. In March, Liaquat Ali was sentenced to death by a Pakistani court for blasphemy and a month later an assistant professor who earned his doctorate under a scholar, Muhammad Shakil Auj, who was accused of—and assassinated for—blasphemy, was shot to death in what was likely an attack inspired by his connection to Auj. In August, three men were arrested for referring to a Christian pastor as “prophet” on a poster. Then in October, Bilal Husain, a man whose father reported him to police was given the death penalty for blasphemy too. Also in October, Asia Bibi, a Christian woman[4] on death row for supposedly insulting Muhammad was moved to solitary confinement over fears that she would be killed by guards, vigilantes, or other inmates. That same month, Christian faith healer Naveed John was arrested for the apparently blasphemous act of “having Islamic script on a sword he used to treat his clients.” Pakistan has received well-earned criticism over the past few months because of the ease with which its blasphemy laws can be used as a weapon “to settle petty disputes against Christians.”

Like Saudi Arabia, Nigeria is all too willing to execute supposed blasphemers. In June, a Nigerian court sentenced Muslim cleric Aminu Abdul Nyass and eight of his followers to death for statements about Muhammad. The sentencing was held in secret because crowds at the previous trial attempted to burn down the court—their second target after burning down Nyass’ home. A Nigerian governor seemingly attempted to justify the death sentence, saying: "The concern is mobs would take extrajudicial action if these convicts are for whatever reason released because they would certainly kill them when they see them on the streets."

Though he’s wrong that the government should give out the punishments the mob wants, but in a more orderly fashion, he’s right that mobs will often act against people who they believe have insulted their gods. In a particularly horrifying example from March, a crowd in Afghanistan attacked Farkhunda Malikzada, a 27-year-old woman they believed had burned the Koran. Specifically, they beat her, ran over her body with a car and dragged her down the street, stoned her, and then lit her on fire. She received essentially no help from the police during the attack. Only days after her death was it discovered that Malikzada had never even burned the Koran in the first place—she had insulted men selling amulets by calling them un-Islamic, and they retaliated by yelling to the crowd that she had burned the Koran.

Bangladesh, meanwhile, shows how common murders like Malikzada’s were this year. In February, Al Qaeda members “taught a lesson to blasphemers” by hacking atheist Bangladeshi blogger Avijit Roy to death with machetes. A little over a month later, Oyasiqur Rhaman, a satirical blogger who mocked fundamental Islam and had mourned Roy’s death by changing his Facebook picture to an image reading “I am Avijit,” met the same fate. He was hacked to death by three men who heard that Rhaman had “made some comments against Islam,” which they had never actually even seen. Then in May, a third atheist blogger, Ananta Bijoy Das, was also murdered by men with machetes. Al Qaeda claimed responsibility for Das’ death as well. He had advocated for secularism on a blog called Free Mind, which had been moderated by Avijit Roy before his death. In August, Niloy Neel was the fourth Bangladeshi man to be hacked to death for his role as a secular blogger.

Roy, Rhaman, Das, and Neel were all on a widely-known list of secular bloggers created by groups pressuring Bangladesh to prosecute blasphemers more harshly. Bangladesh’s government was not content to let the machete-wielding murderers be the only villains in this story—after Neel’s murder the Inspector General of Police, while admitting that murder is wrong, actually asked that people report to the police secular blogs, whose contributors could face up to 14 years in prison, for “hurting religious sentiments.” What Bangladesh should do is eradicate its blasphemy laws and acknowledge that its treatment of blasphemy as a crime worthy of imprisonment encourages murderers targeting those who offend them. Instead, the Bangladeshi police have reaffirmed the notion that authority figures should violently censor speech that insults their constituents’ gods. I can hardly think of anything less safe for Bangladeshi bloggers than a public record of police investigations into their criticism of religion.

Threats and violence against blasphemers were not contained to the countries listed above. Three men were convicted under Myanmar’s blasphemy law and sentenced to 2 and a half years in prison in March for insulting Buddhism by publishing a flyer showing Buddha wearing headphones to promote their bar. Amos Yee Pang Sang, a 16-year-old blogger in Singapore was sentenced to a 4 week prison term in July for insulting Christianity, and he “admitted to his guilt and promised not to reoffend, as he realised his actions were against the law and could disrupt social harmony” after he was required to go to counseling. An executive at a Four Seasons hotel in Indonesia is facing blasphemy charges and up to five years in prison because she allowed a gay couple to hold a Hindu ceremony at her hotel. And an Indonesian footwear company is being sued solely because the word “Allah” is printed on sandals they produced, which they’ve promised to destroy. In October, a five year prison sentence against TV personality Islam El-Behery for “contempt of religion” was upheld by Egypt. In August, two men in India murdered professor M.M. Kalburgi, who was likely targeted for his criticism of idol worship. A few weeks ago, Indian director Pan Nalin received death threats because of the blasphemous content in his newest film, and took calls warning him: “We will make sure you go Charlie Hebdo way.” Last month Kuwaiti blogger and teacher Sara Al-Drees was arrested for “Insulting the Prophet” on Twitter, and could face up to ten years in prison doing hard labor. Events of a blasphemous nature faced threats and violence as well—in February three people were wounded and one man was killed when a gunman[5] targeted Lars Vilks’ event in Denmark and a Muhammad cartoon contest with keynote speaker Geert Wilders in Texas was unsuccessfully attacked in May by two gunmen (one of the gunmen had claimed allegiance to ISIS.)

More Blasphemy Laws, More Problems

In addition to the many acts of violence committed against blasphemers this year, a few countries introduced or passed bills that will likely perpetuate that violence, or at least frighten dissidents into silence. Kuwait is considering an amendment to its 1959 Alien Residence Law, which would ban “any person convicted of contempt of religions or penalised for derision of Islam, Islamic beliefs or the Prophet’s (PBUH) companions or family members” in another country from entering Kuwait. In July, the United Arab Emirates President His Highness Shaikh Khalifa Bin Zayed Al Nahyan[6] decreed a law that could easily be used to target blasphemous speech. Some of the “anti-hate” law’s provisions:

  1. Criminalises any acts that stoke religious hatred
  2. Criminalises any act that insults religion through any form of expression, be it speech or the written word, books, pamphlets or online
  3. Punishes anyone for terming other religious groups or individuals as infidels, or unbelievers
  4. Provides a sound foundation for the environment of tolerance, broad-mindedness and acceptance in the UAE
  5. Aims to safeguard people regardless of their origin, beliefs or race, against acts that promote religious hate and intolerance
  6. Includes jail terms of six months to more than 10 years for those who break the law

Not to be outdone, Bahrain began drafting a bill in August that would ban “any hate or sectarian discourse that undermines national unity, differentiates between individuals or groups on the bases of religion, creed or sect and triggers conflict between individuals or groups.” New Zealand’s new Harmful Digital Communications Act says digital communications "should not denigrate an individual by reason of his or her colour, race, ethnic or national origins, religion, gender, sexual orientation, or disability.” Humanist groups have raised concerns about the law’s ability to target blasphemous speech, but New Zealand’s Justice Minister Amy Adams claimed "a person would have to do much more than simply post blasphemy to fall foul of the criminal offence in the Harmful Digital Communications Act." There’s plenty of evidence from this year alone that many people consider blasphemous statements to be “denigrations” of their religion, so Adams’ comments are poorly thought out at best[7].

Poland and Denmark both took incredibly disappointing stances this year by reaffirming the legality of their blasphemy laws. The International Humanist and Ethical Union reports that Denmark’s Ministry of Foreign Affairs Vanessa Vega Saenz spoke at a UN Human Rights Council meeting in March and acknowledged that Denmark’s blasphemy law is rarely used but claimed it’s “‘legally important’ in that it gives the state the possibility to stop people burning bibles and Korans, and to punish those who do[8].” In October, a Constitutional Tribunal upheld Poland's blasphemy law that states “whoever offends religious feelings of other people by publicly insulting an object of religious cult or a place for public holding of religious ceremonies, is subject to a fine, restriction of liberty or loss of liberty for up to 2 years.” In the ruling, one of the justices said “religious criticism is acceptable, only if it’s devoid of abusive, insulting or degrading opinions” and the tribunal asserted the importance of “punish[ing] such offenses, because the public debate about religion must be conducted in a cultured and civilized manner.”

Some Rare Good News

There were a few brights spots this year, though. In March, Jordan withdrew its proposed Inter-Parliamentary Union resolution that sought to restrict speech that failed to show “respect for religions and religious symbols.” In response to the Charlie Hebdo attacks, two Norway politicians pushed through a proposal in May that finally achieved the long-planned end of the country’s blasphemy law, arguing that its existence “underpins a perception that religious expressions and symbols are entitled to a special protection.” Two months later, Malta announced that it was in the process of weakening its blasphemy laws[9]. Iceland’s parliament, also motivated by Charlie Hebdo, repealed its 75 year old provision against blasphemy in July. And in October, Pakistan’s Supreme Court decided that suggesting revisions to Pakistan’s blasphemy law is not, in fact, a violation of the blasphemy law. Alarming as it is that this needed to be said, it’s still progress worth noting. It’s a minor, but important, step forward for free speech advocates demanding reform.

That Norway’s and Iceland’s blasphemy laws (like Denmark’s) were rarely, if ever, used is irrelevant—laws that could be used to punish expression often do a very good job of chilling the speech they’re intended to suppress even if they’re never exercised. And sometimes, as evidenced by the tragedies in Bangladesh and Afghanistan, blasphemy laws do worse than chill speech—their existence reinforces the idea that blasphemous speech is something that should be physically punished. It shouldn’t be, and we should be genuinely concerned about the prevalence of the desire, from governments and mobs, to inflict pain on people whose beliefs deviate from what their neighbors or leaders deem acceptable.

[1] This list probably does not contain every newsmaking blasphemy incident of 2015, but it illustrates the hostility with which religious dissent was met in the past year. I used essentially the same methodology as Ken did when he blogged about blasphemy in 2012, but I grouped the incidents differently (as you can see).

[2] These are just a few examples of ISIS’ brutality. You can easily find many more if you’re so inclined.

[3] But who among us wouldn’t threaten to sue someone willing to criticize us for doing very rational things like beheading people for not imaginary crimes like sorcery? Who are we to judge?

[4] And the only woman.

[5] His motives were not known but Vilks is a well known target for his cartoon depictions of Muhammad.

[6] A rule to live by: anyone that demands to be called “his highness” can probably be expected to “decree” terrible laws.

[7] For more poorly thought out comments, check out Keith Vaz’s “lol idk maybe” ideas on blasphemy laws in the UK.

[8] This is a fairly blunt way of saying that they like being able to chill speech.

[9] But the Justice and Culture Minister said that “the new amendments will also aim to safeguard social and racial minorities, since the law will not allow for the vilification of any minority work,” so this is still worth watching.

 

 

 

Who Will Be Popehat's Censorious Asshat of 2015?

It's time for Popehat's annual-when-I-get-around-to-it Censorious Asshat of the Year contest!

As always, only asshats we have written about are eligible. Candidates have been narrowed down through a process involving caprice, short attention spans, and alcohol.

It's a strong field this year, ladies and gentlemen. Here are the candidates:

The New York Times: An institution that won't print satirical cartoons at the heart of worldwide murders and death threats because they might hurt feelings. In aggravation: A complete abdication of support for free speech, badly supported by a appeal to feels that is not consistently applied across potentially offended groups. In mitigation: This is only self-censorship, which isn't really censorship at all, properly. The Times has a right to be craven and unserious if it wants.

Ohio Judge Tim Grendell: An overpromoted, thin-skinned thug who abuses the contempt power to harass critics and offers bad excuses for it. In aggravation: Proudly and wantonly abusing judicial office out of personal spite. In mitigation: Deserves the obscurity that his mediocrity had previously earned him.

Dr. Mario J. Saad: Saad was sad about the part of peer review where someone questions his work, and unsuccessfully sued to suppress scientific dialogue on breathtakingly frivolous grounds. In aggravation: Actually interfered with the peer review process that helps promote human scientific knowledge. In mitigation: As a doctor, probably completely unfamiliar with anyone telling him no.

Michigan Judge Lisa Gorcyca: This evil, vicious brute reviled and threatened children who didn't want to meet with their estranged father. In aggravation: “You want to have your birthdays in Children’s Village? Do you like going to the bathroom in front of people?" In mitigation: Really more of a regulation of conduct than speech.

The U.S. Attorney's Office for the Southern District of New York, U.S. Attorney Preet Bharara, Assistant U.S. Attorney Niketh Velamoor: Issued a grand jury subpoena to Reason Magazine to determine the identity of commenters making patently hyperbolic political comments on the pretext that they were threats, and sought and obtained a gag order preventing Reason Magazine from reporting on the fact that it was being subpoenaed and gagged on no rational grounds whatsoever. In aggravation: The part where they silenced a magazine that writes about government abuse of power from talking about their government abuse of power. Seriously. In mitigation: Total failure of substantive judicial oversight was akin to bad parenting. It's sort of like affluenza, except with unchecked prosecutorial power instead of weath and shrugging judges instead of awful parents.

Donald Trump: Prone to issuing frivolous defamation threats and filing bogus defamation suits to soothe his chafe over being criticized. In aggravation: Career abuser of the judicial system. In mitigation: Surrounded by sycophants who encourage his misunderstanding of free speech.

City of Inglewood, California: Filed an abusive and unsuccessful copyright infringement suit to attack someone who put city council proceedings on YouTube. In aggravation: In addition to harassing a critic, wasted a vast amount of taxpayer dollars in a predominantly impoverished city. In mitigation: Low expectations of local government has cultivated lawless atmosphere.

Eric Posner: Long-time dedicated foe of the First Amendment continued his unprincipled assault on it. In aggravation: America's most prominent academic champion of censorship. In mitigation: Has never actually persuaded anyone to censor anything.

Turkish President Recep Tayyip Erdoğan: Tirelessly employs the mechanism of his brutal government to harass and oppress even the most mild and lighthearted of critics. In aggravation: Actual tyrant who actually has people imprisoned for speech. In mitigation: Check your Western privilege. He's not from a culture with a tradition of freedom of expression.

Mecosta County District Court Judge Peter Jaklevic: Ordered clearly unconstitutional arrest of jury nullification advocate in a fit of pique. In aggravation: Abuse of judicial office. In mitigation: As a recent former prosecutor, never taught to view rule of law as a set of mutually agreed-upon limitations on power, as opposed to an obstacle.

Goddamn college students on my lawn: Doing their best to push the idea that universities should punish and silence people who say things they don't like, think that hurty words are "silencing" but closing student newspapers or forcing students into reeducation classes isn't. In aggravation: Insufferably fanatical; fanatically insufferable. In mitigation: Never taught any better.

Chuck C. Johnson: Bumbling his way through a frivolous lawsuit against Gawker, and others, for making fun of him. In aggravation: Incessantly wraps himself in the First Amendment while simultaneously making frivolous defamation threats. In mitigation: Gawker is awful. Also, he's pretty good comic relief.

Who is Popehat's Censorious Asshat of 2015?

Jessica Valenti Calls For Jailing of Critics Of War And The Draft

Jessica Valenti of The Guardian thinks that, just as we jailed people who protested and criticized the draft during World War I, we should be able to jail people who release unflattering videos about Planned Parenthood. Both, she believes, are justifiable.

Well, she doesn't say that explicitly. But that's the necessary implication of column today in The Guardian, in which she says that releasing undercover videos about Planned Parenthood should not be protected as free speech.

Freedom of speech is one of America’s most cherished rights, but we’ve always had limits on what’s acceptable: in 1919, the US supreme court ruled that the right doesn’t apply to speech that incites action that would harm other people.

At the time, the example presented by the court was that falsely yelling “Fire!” in a crowded theater doesn’t count as protected speech.

Like many people who favor censorship but have a cookie-sheet-shallow grasp of its history, Valenti is misquoting Oliver Wendell Holmes dropping a rhetorical aside in Schenck v. United States. Holmes invoked that image to justify the prosecution and imprisonment of a man who criticized and questioned the draft during World War I. Of course, in the century since, American courts have abandoned Holmes' sloppy and unprincipled stand, narrowing the "incitement" exception to intended to and likely to cause imminent lawless action. But Valenti speaks approvingly of the original ruling because, in her mind, it justifies censoring speech she doesn't like.

Just as she misleads her readers about history, Valenti misrepresents the present. She suggests that a federal judge in the Northern District of California prohibited the distribution of the Planned Parenthood videos because they posed a risk of danger to clinics. "Now, in the wake of the release of secretly taped and deceptively edited videos of abortion providers, a judge has issued a temporary restraining order because of the very real threat of violence that the videos pose." Valenti either doesn't understand the legal issues or is lying about them. In the Northern District case, the National Abortion Federation learned from the mistakes of Stem Express and explicitly couched their lawsuit and injunction request against the defendants in terms of breach of confidentiality agreements and fraud, not wrongful content. As Eugene Volokh explained, such content-neutral grounds may support prior restraint on speech, because they aren't about the content of your speech, they're about enforcing your promise not to reveal the information you're revealing.

To secure an injunction, a plaintiff must show — among other things — that they are likely to prevail on the merits of the suit and that the "balance of hardships" weighs in their favor. The NAF did not invoke the threat of violence as evidence that they would prevail. Instead, they argued that they would prevail because the defendants fraudulently obtained access to NAF events and violated confidentiality agreements. Only then did they argue that the balance of hardships was in their favor because of the atmosphere of threats and violence against abortion providers. The judge's temporary restraining order did not say that NAF was entitled to prior restraint because the risk of violence allows prior restraint. Rather, the court said that NAF had shown it would prevail on its substantive claims of fraud and breach of confidentiality agreements, and that the threats of violence went to the balance of hardships. Valenti is misleading her readers.

Valenti asserts that the Planned Parenthood undercover videos have caused violence against Planned Parenthood clinics. The only evidence she cites are the statements of the crazed and evil Colorado shooter. Valenti asserts that the videos are "secret" and "deceptively edited," but she does not explain how we know that the "deceptive" parts are what (allegedly) incited threats and violence, as opposed to the parts of the videos that are admittedly true.

Valenti's goal is clear: a broad, unprincipled rule that would punish rhetoric she doesn't like:

The frenzied language surrounding the video’s release – including out-and-out lies on national television by Republican presidential hopeful Carly Fiorina – has stoked harassment and violence. And though preventing the release of more footage may not stop lies and violent speech, it could help curb it and would send the message that anti-choice activists will not be allowed to spread lies without consequence.

Some social controversies do lead to death threats and violence. Both are utterly unacceptable; I wish that more political death threats were investigated and punished. But note that Valenti's eager advocacy for censorship is not tethered to illegally recorded videos or misleading videos or even videos with explicit lies: it's an explicit call to censor political speech that makes people mad, whether or not it's intended or likely to cause imminent violence. It's an vague call for someone in the government — perhaps people who agree with Valenti? — to decide what bits of political rhetoric and hyperbole are "lies" and suppress political speech accordingly.

Everyone who reads Jessica Valenti's column and believes it is now stupider about First Amendment law. Remember: free speech has enemies. Fight them.

Eric Posner: The First Amendment's Nemesis

Every hero needs a villain.

Not only that, ever hero needs a suitable villain, a villain that somehow complements the hero's attributes. If your hero is a very large collection of Dalmatians, you need a villain who craves a Dalmatian-skin suit. If your hero is Aquaman, you need either a seafood-themed villain or perhaps a desert-themed villain, depending on your mood. If your hero is The Flash, you need a gigantic gorilla, because — well, okay. There are exceptions.

The First Amendment is not an exception. The First Amendment is a hero, of a sort: a tireless defender of expression from angry mobs and fickle tastes, a sentinel against the sort of annoy-me-and-I-kill-you rule that has prevailed for most of humanity's history. So of course it has a villain, a foe, cackling and scheming and plotting to tie it up and lower it into a bubbling vat of stinking, unprincipled lit-crit twaddle.

That villain is Eric Posner, professor at the University of Chicago. I would not go as far as to call him super-, but he is certainly the First Amendment's archvillain.

Professor Posner is in the news again with his latest call to restrict free speech. But you can't just leap in and read that cold. No! That would be like jumping into late-season Daredevil and not understanding why that nice gentleman from Law & Order seems so morose. You have to know the backstory: before you watch this week's battle, you have to see at least some of the battles that have gone before.

In that spirit, I offer you a sort of episode guide. Careful — there are spoilers!

Episode One: Wrath of the Blasphemed. In this episode, Posner plots to overturn the First Amendment in favor of international anti-blasphemy norms, and allow government punishment of speech he believes has "no value whatsoever." Little do his victims know the real nature of the international anti-blasphemy norms he touts: they are tools for religious majorities to oppress minorities, cruel whips that the powerful use to lash the powerless. Is that end this fiend's aim, or is he merely indifferent to it in his quest for the power to control speech? Tune in to find out.

Episode Two: Eric's Army of Darkness. In this episode, temporarily thwarted in America by the First Amendment, Posner seeks to overthrow free speech in Europe through clever reliance on violent terrorists. Faced with the Charlie Hebdo massacre, Posner sees fear and violence as the path to power over what people can say: he proposes that speech should be limited based upon what his motley league terms "low value," and based on the threat that if he is not given free reign to censor, fanatics will shed blood:

Me: if hate-speech laws had been enforced against Charlie Hebdo, then this attack would not have happened. So at a minimum, there is some evidence that they reduce violence. Rauch is right that hate-speech laws cannot be applied “neutrally.” But they can be enforced sensibly, to censor low-value speech that offends groups to the extent that violence may result.

Will the Europeans realize that this theory cedes control over speech to the subjective reactions of (1) foes of speech like Posner, and (2) the sort of fanatics who kill over cartoons? Find out next week! (Spoiler: no.)

Episode Three: Attack of the Zombie Children.> In this episode, Posner realizes that college students have underdeveloped brains ripe for control, control that can be exercised through more muscular speech codes and expression limitations. In what will become an ongoing theme this season, Posner harkens wistfully harkens back to an era will less freedom:

Yet college students have not always enjoyed so much autonomy. The modern freedoms of college students date back only to the 1960s, when a wave of anti-authoritarianism, inspired by the Vietnam War and the civil rights movement, swept away strict campus codes in an era of single-sex dorms.

Episode Four: The Listener. The First Amendment is on vacation so a disconsolate Eric Posner skulks around throwing rocks at the Fourth Amendment's windows.

Episode Five: In Which Posner Seeks To Sell Our Birthright Of Liberty for a mess of pottage that is security theater. You're caught up to the current episode! This time, Eric Posner proposes a law that "makes it a crime to access websites that glorify, express support for, or provide encouragement for ISIS or support recruitment by ISIS; to distribute links to those websites or videos, images, or text taken from those websites; or to encourage people to access such websites by supplying them with links or instructions." This will help prevent ISIS from recruiting American teenagers, just as laws against copyright infringement have effectively held them back from music and video piracy. Posner wants to invent a sinister time machine to take us back to the early 20th century, before modern speech protections:

However, these rules go back only to the 1960s. Before then, in the United States, people could be punished for engaging in dangerous speech. The U.S. government prosecuted Nazi sympathizers during World War II, draft protesters during World War I, and Southern sympathizers in the Union during the Civil War. It’s common sense that when a country is embroiled in a war, it should counter propaganda that could populate a fifth column with recruits.* The pattern in American history—and, in the other democracies as well, even today—is that during times of national emergency, certain limits on speech will be tolerated.

In other words, Posner is enthusiastically encouraging a return to the time when you could be jailed for questioning whether a war was just or expressing opposition to the draft.

Eric Posner is well-cast as the First Amendment's nemesis: he represents everything it stands against. He represents obeisance to passing tastes about what is couth, clenched fists of power disguised as helping hands, suppression dressed up as order. He is the Foe.

A villain has to be a little scary — there has to be at least some possibility that he'll prevail and overthrow the hero.

But the First Amendment has a lot of friends. I like its chances in this fight.