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

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

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

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

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


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

And it teaches a few lessons.

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

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

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

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


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

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

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

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

Live by the sword, die by the sword.

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


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

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

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

With Apologies To Baron Macaulay


Then out spake prim Horatius,
The Censor of the Gate:
"To every persyn upon this earth
Butthurt cometh soon or late.
And how can we do better
When facing fearful speech,
Than shut down all discussion,
And stop the crimethink's reach?


"As for the tender mother
Who knits a woolen toy,
Best send the cops to brace her
Although it gives her joy
It matters not what we think,
We privileged with some sense,
Call the cops if anyone
May somehow take offense.


"Haul down the books, Oh Councils,
With all the speed ye may;
I, with the state to help me,
Will halt bad speech in play.
If the people won't obey us
And alter all their norms,
Then force of law we'll bring to bear,
and stop extremism in all its forms.

Cathy Gellis Wins Second Victory Against U.K. Subpoena Seeking To Pierce Blogger Anonymity

Back in October I described how attorney and blogger Cathy Gellis won a significant pro bono victory, quashing Oliver Gobat's subpoena to unmask the blogger behind the St. Lucia Free Press. Gobat, who was suing over blog posts from and about St. Lucia, sued in the United Kingdom, which is to defamation plaintiffs what Walt Disney World is to sticky and demanding children: a fantasy tourism destination. Cathy convinced a California court to quash a subpoena issued here based on the U.K. proceeding; that subpoena to the St. Lucia Free Press's California-based ISP sought the identity of the anonymous blogger. The court quashed the subpoena on the grounds, among others, that the United Kingdom proceedings that generated the subpoena were insufficient and did not comply with domestic free speech or due process requirements. The court even granted Cathy very modest fees and costs — though surely nothing compared to the hours she devoted to the important issues at hand.

But Mr. Gobat and his U.S. attorneys are persistent. They engaged in some rather desultory additional proceedings in the United Kingdom and re-issued the subpoena. Cathy Gellis filed a motion to suppress the subpoena again, and the result is nothing less than an utter rout of Gobat and his attorneys. The California court quashed the subpoena, issued an injunction forbidding Gobat from trying to subpoena the ISP again, and awarded $15,000 in attorney fees to Cathy Gellis, owed jointly by Gobat and his California lawyers.

But why did the court quash the subpoena originating in the U.K.? The court followed California law requiring defamation plaintiffs to make a "prima facie showing" of defamation in order to pierce a defendant's anonymity through discovery. That's not a particularly robust test — unlike the more protective Dendrite test favored in some jurisdictions, it only requires the plaintiff to offer some evidence which, if accepted, would satisfy the elements of defamation. Here, the court found that the statements Gobat complained of appeared to be opinion and hyperbole under American law, not actionable false statements of fact, and that American law controlled in evaluating whether a British subpoena could pierce anonymity in America. In his recommendation to the court, the Judge Pro Tem said this:

Applying the balancing test endorsed by Krinsky v. DOE 6 (2008) 159 Cal.App.4th 1154, 1165, and considering whether a prima facie case of defamation has been stated, the Court finds that the anonymous comments complained of appear to be opinion mixed with sarcasm and hyperbole, rather than objective statements of fact. See discussion in Krinsky v. DOE 6 (2008) 159 Cal.App.4th 1154 at 1175-1178. The Court rules that the 1st Amendment of the U.S. Constitution trumps English law in deciding whether a prima facie case for defamation has been made. Krinsky at 1173, citing Gertz v. Robert Welch, Inc. (1974) 418 U.S. 323, 347 [states may define their own law of liability for defamation, but must remain within Constitutional limits].

In his recommendation to the court, the Judge Pro Tem highlighted why it would be perilous for American courts to pierce the anonymity of speakers just because a foreign court decided that their speech was defamatory:

My view is that the language in this case is not that far removed from that in the leading case of Krinsky — it is aggressively critical, but so over the top that the typical reader, reading in context, would recognize it as a rant—an opinion, possibly from a disgruntled consumer of the real estate, or simply from a gadly.

Under Krinsky, another issue is whether English law should be applied to determine if there is a prima facie case of defamation. Krinsky involved Florida law, so we may be dealing with a case of first impression in California. The cases cited above say “no” if English law has a looser definition of defamation than the U.S. Constitution. I posed a hypothetical to Gobat counsel: if a foreign country had a law stating that any woman who criticizes a man is liable for defamation, would a U.S. court use that law in deciding if there was a prima facie case of defamation for purposes of ruling on a subpoena just like the one in this case?

It's fairly unusual, by the way, for a court to make an attorney fee order jointly and severally payable by a party and the party's lawyer. Why would the court do that here? It might be because the second subpoena still suffered so clearly from the defects of the first. Or perhaps it was because Gobat's counsel implied, in a footnote, that Cathy Gellis might have to start legal proceedings in the U.K. to collect on the modest fees awarded in the prior motion:

Petitioner's apparent suggestion that Gobat's California counsel should be sanctioned so that Petitioner need not "chase down [Gobat] all over the world to recover fees and costs" (Pet.'s Mot. to Quash 9), is an improper one. There is no legal basis for levying expenses against a party's counsel as a proxy for levying those expenses against the party himself. Petitioner cites no statute or case law allowing such a practice. Additionally, Petitioner fails to show how he or she would need to "chase down" Gobat. In the event that Petitioner needs to collect a judgment from Gobat, he or she could easily do so by instituting an appropriate action in the U.K.

That was a tactical error. The right answer was "there is no need to sanction counsel because the party, which is taking advantage of this court's processes, will comply with its orders and pay what it is ordered to pay." This line was a red flag to the judge.

This is a tremendous victory for Cathy, and an important recognition of the state of the law protecting anonymity in California courts. Join me in congratulating her.

Her motion is here, and Gobat's opposition is here, and her reply is here.

British "News" Program Censors Mohammad Cartoon While Covering It

Last week I talked about the British controversy over Maajid Nawaz, a Liberal Democrat parliamentary candidate who tweeted a link to the satirical cartoon Jesus and Mo, which depicts conversations between a cartoon Jesus and a cartoon Mohammad to explore religious beliefs and attitudes.

The United Kingdom's Channel 4 News decided to run a story about the controversy. Naturally they showed a picture of the cartoon so that viewers could make an intelligent assessment of the claims of offense.

Well, sort of.

In Channel 4 News' story, at about :25, the reporter says:

This is the cartoon that is causing outrage. We have taken the decision to cover up the depiction of Mohammed so we don't cause offense to some viewers.

This resulted:


Channel 4 News has begged the question in classic form: it has censored a cartoon right at the start of its coverage of a debate about whether the cartoon should be censored. It has blacked out a depiction of Mohammed right at the start of putatively covering a debate over whether the few should be able to demand that the many not depict Mohammed. It has yielded to claims of offense right at the start of a discussion of whether society should yield to those claims of offense.

Even though Channel 4 is owned by a public body, this is not exactly state censorship: it is an exercise of terrible journalistic judgment rather than an act compelled by the state. But it is troublesome nonetheless. Channel 4 has pretended to cover a debate, but has actually presumed the validity of the arguments by one side of that debate. It has assumed, in a discussion of whether a cartoon is so offensive that it ought not be shown, that the cartoon is so offensive that it not be shown. It has decided to yield to a religious minority's demands about what can and cannot be depicted.

I have some questions for the alleged journalists at Channel 4 News.

1. Do you censor artistic depictions based on claims of offense even-handedly? If, for instance, you were covering a local council's decision to prevent a performance of the Reduced Shakespeare Company's show The Bible: The Complete Word of God, would you yield to demands of a few that you not show any clips or screenshots of the play, because it is offensive? Would you, like the Guardian, depict Serrano's "piss Christ" in covering the controversy over it?

2. At what point is a group big enough, or its claim of violence loud enough, for you to censor content based upon it? The United Kingdom has a significant American expat community. If I get enough of them to say that depictions of burning the American flag are offensive, will you avoid showing that on the news?

3. Does the safety of your employees, or of bystanders, play any role in your decision? Are claims of offense by some groups more likely to be accompanied by death threats and even violence?

4. If the answer to 3 is "yes," isn't that news?

5. For two years — here and here — I have done an annual review of how "blasphemy" like depicting Mohammed is treated both by states and, occasionally, by mobs. I submit that evidence shows that the notion of blasphemy — primarily, though not exclusively, as defined by Islam — has been used as a justification for abuse of minorities and the powerless. Have you considered whether your decision to yield to blasphemy norms and censor content makes you a party to that norm, and an implicit supporter of that abuse?

Some of those questions may be offensive to some of your viewers. I can show you how to black them out if you like.

The Self-Perpetuating Logic Of Censorship

When I oppose things like European prohibitions on denying the Holocaust, or "hate speech" laws, people tell me that I Don't Get It, that these laws address unique situations and unique historical dilemmas, and that they do not represent a wholesale abandonment of the value of freedom of expression.

The problem is that censorship is legally and culturally self-perpetuating. Once you accept that it is legitimate to ban speech because it is offensive, or ban ideas as historically dangerous, that decision is used both as a legal precedent and — invoking the values of fairness and equality — as an argument for banning other offensive speech.

This week's case in point: the United Kingdom. Maajid Nawaz, a Liberal Democrat parliamentary candidate, tweeted a link to the cartoon Jesus and Mo. That cartoon depicts Jesus and Mohammed having conversations, often in a way that subverts religious doctrine and attitudes. I have previously written about how it has led to calls for censorship over in the U.K. This time, Nawaz' tweet — which said quite reasonably "This is not offensive & I'm sure God is greater than to feel threatened by it" — has led to death threats and abuse.

There's a petition on the ever-optimistic that illustrates my point. Demanding that Nawaz be removed as a candidate, the petitioners ask this:

2. Is it right that questioning the official 6 million figure in favour of e.g. 4 million, is tantamount to Holocaust Denial which is a criminal offence in Europe?

3. Was is right that the play Behzti was cancelled due to the sensitivities in the Sikh community?

4. Or that the poem "Education for Leisure" was removed from the AQA's (Assessment and Qualifications Alliance – an Awarding Body for GCSEs and A-Levels) Anthology, after complaints were received?

Though the argument requests action from a party, not from a government, it mirrors the argument we see put to the government all the time. Muslims demanding official censorship have have asserted this justification for censorship before. Why shouldn't they? It's an appeal to the Western value of equality and fairness. How can we be solicitous of offense to one group, but not offense to another? We're not racists or something, are we? Are we only protecting the people we like?

We can't control how other people will feel, or what they will find offensive. We can only govern what we do about it. We can only condition people to expect from us defense or free expression, on the one hand, or official and punitive solicitude to hurt feelings, on the other. Once we start using the force of the state to punish people for being offensive, we should expect everyone who has ever been offended to come knocking on our door, asking "What about me? Don't I have feelings?"

Kudos, at least, to the extent these protesters are only demanding party action — which is a form of party politics and freedom of association — and not state punitive action. But the Liberal Democrats might want to consider what they'll be asked to punish next.

If You Go Far Enough Right OR Left, You'll Wind Up At Segregation Again

Now and then I write about a conflict between "multiculturalism" — as that term is understood by some — and certain core values. Those values include the rule of law, and the equality of all humans before it, and freedom of expression, and freedom of worship.

"Multiculturalism" and "core values" need not conflict. Rationally understood, multiculturalism is simply an openness to ideas and contributions from cultures other than our own, and an interest in the history, artistic expression, and philosophy of other cultures. Multiculturalism encourages us not to be hostile to or afraid of something because it originates from somewhere else. Multiculturalism is not having a shitfit because salsa is more popular than ketchup now, and not assuming that a culture is doomed based on ethnic demographic shifts..

Improperly understood by some, multiculturalism encourages abandoning core values at the demand of another culture that doesn't share them. Demanding that a book be destroyed because it teaches girls how to play didgeridoos and girls aren't supposed to play digeridoos in Aboriginal culture is an example. Demanding that Western countries respect non-Western values and enact laws criminalizing blasphemy is an example. People who oppose our core values everywhere are perfectly capable of exploiting this unprincipled view of multiculturalism:

So, please respect our religions, cultures and traditions by keeping your homosexuality out of our country.

This month brings the latest example: universities segregating public meetings based on the culture-based demands of the speakers.

For some time there as been controversy about universities in the United Kingdom allowing Islamic speakers to require gender segregation of public events using university facilities. Recently Universities UK — an advocacy group for UK universities — published a policy that encouraged accommodation of speakers who wished to demand gender segregation of events on university campuses. Bear in mind we are not talking about meetings of a student group — which might be governed by values of freedom of association — but outside groups using university facilities for public events. I quote at length, because the mushy and unprincipled discussion is lengthy:

Aside from freedom of speech and the s.43 duty, the paramount issue is to consider how equality obligations apply, and how those interact.

• For example, under the Equality Act 2010, the first question is whether the segregation is discriminatory on the grounds of a protected characteristic within the definition of the Act. Segregation in the context of the facts outlined above would only be discriminatory on the grounds of sex if it amounts to ‘less favourable treatment’ of either female or male attendees.

• It will therefore, for example, be necessary to consider the seating plan for any segregation. For example, if the segregation is to be ‘front to back’, then that may well make it harder for the participants at the back to ask questions or participate in debate, and therefore is potentially discriminatory against those attendees. This issue could be overcome assuming the room can be segregated left and right, rather than front and back (and also ensuring that appropriate arrangements are made for those with disabilities).

• Consideration will also need to be given to whether imposing segregation on everyone attending the event is required (see below). If it is required, this may amount to less favourable treatment of other attendees because of a protected characteristic. On the face of the case study, assuming the side-by-side segregated seating arrangement is adopted, there does not appear to be any discrimination on gender grounds merely by imposing segregated seating. Both men and women are being treated equally, as they are both being segregated in the same way. However, one cannot rule out the possibility that discrimination claims will be made on other grounds. For example, it is arguable that ‘feminism’ (bearing in mind the views of the feminist society referred to in the case study), or some forms of belief in freedom of choice or freedom of association, could fall within the definition of ‘belief’ under the Equality Act. This would in turn mean that applying a segregated seating policy without offering alternatives (eg a nonsegregated seating area, again on a ‘side by side’ basis with the gender segregated areas) might be discriminatory against those (men or women) who hold such beliefs. However, the question of whether such beliefs are protected under the Act is unclear without a court ruling. Further, an act of indirect discrimination can be ‘objectively justified’ if it is a proportionate means of achieving a legitimate aim, meaning the institution should also have regard to its other obligations under the Equality Act and the s.43 duty to secure freedom of speech, for example.

It should therefore be borne in mind – taking account of the s.43 duty, as well as equality duties and Human Rights Act obligations – that in these circumstances, concerns to accommodate the wishes or beliefs of those opposed to segregation should not result in a religious group being prevented from having a debate in accordance with its belief system. Ultimately, if imposing an unsegregated seating area in addition to the segregated areas contravenes the genuinely held religious beliefs of the group hosting the event, or those of the speaker, the institution should be mindful to ensure that the freedom of speech of the religious group or speaker is not curtailed unlawfully. Those opposed to segregation are entitled to engage in lawful protest against segregation, and could be encouraged to hold a separate debate of the issues, but their views do not require an institution to stifle a religious society’s segregated debate where the segregation accords with a genuinely-held religious belief. The s.43 duty requires an institution to secure freedom of speech within the law.

Notice a few things about this. First, see how utterly useless it is as a guideline to any actual human being making a real decision about a real-world event. Second, see how academicians can simultaneously kowtow to and insult identity groups — for instance, the scare quotes around feminism. Third, note how the ethos of Universities UK create a ill-defined protected right to segregate at public events at a university, a right that must be "balanced" in some obscure way against values like equality of access. Note also how the Universities UK approach results in an unprincipled and self-parodying jumble of interests groups, in which yielding to a gender segregation demand is objectionable not because universities shouldn't be gender-segregating public events in 2013, but because gender-segregating might lead to impaired access for the disabled.

Universities UK has reacted to criticism by claiming that it doesn't promote gender segregation That's right: it doesn't promote it, it simply advocates accommodating it on the premise that a group's culture-based desire to segregate a public meeting on a university campus is of equal value as the university's core value of equality of access. Or at least, Universities UK wishes to accommodate some cultures. Let's be clear: this is not about equal respect for all viewpoints. There is precisely zero chance that Universities UK would have drafted this policy to support the beliefs of Christian or nativist groups. Universities UK is not going to write feckless hand-wringing policies about accommodating the BNP in excluding non-whites from speeches, nor should they. Universities UK is not going to write drivel explaining how to balance the desire of some fringe Christian group to exclude gays from speeches, nor should they. [Edit: as a commenter points out, a fairer analogy would be the BNP or religious groups insisting that non-whites or gays sit separated from others at the speech.] Universities UK and other groups of its ilk are proceeding from foolish and wrong view of multiculturalism: that the requisite respect for other cultures includes accommodating demands that violate core values, whether that means segregating public events on university campuses or pursuing deeply embarrassing and ridiculous anti-offense policies.1

University UK's input is quite controversial and has been roundly condemned. This brings predictable and unserious smears from the sort of people who think that multiculturalism requires uncritical deference to practices that violate core values:

In allowing its website to be used to petition against the right of Islamic Societies to determine the running of their own meetings, Avaaz is endorsing cultural imperialism and side-lining of an entire culture within our Universities. The petition represents an attempt to force Western culture into the meetings and events of women and men who subscribe to another culture. This is not tolerance, freedom or any other form of positive. Never underestimate the ability of White Men to use Women of Colour as a means to espouse racism and cultural superiority.

Look: if you want to have a private group that segregates, have a private group that segregates. If you want to determine the determine the leadership of your own group, determine the leadership of your own group. But if you want to hold an event open to the public on a university campus, and you want to demand that the university cooperate with and enforce your segregation requirements, then fuck off. If that's cultural imperialism, then hand me a pith hat and quote me some Kipling. The same goes for demands for censorship. My respect for your culture ends when you use it to demand that my nation censor speech to meet your tastes and join a system of brutal and minority-oppressing anti-blasphemy laws.

The post-9/11 world has triggered a lot of anti-Muslim dipshittery, from the increased prominence of anti-Muslim lunatics to paroxysms of idiocy over things like turning a Burlington Coat Factory into a mosque. It's good to call out and criticize that, and generally to resist the siren call to demonize The Other. But on the other hand, open-mindedness and charity towards other cultures doesn't require us to abandon the values that ought to be at our core. Should we look at the censorious and prejudiced motes in our own eye before picking at the eyes of others? Certainly. That's only honest. But we need not adopt censorship or segregation ourselves just because someone else says that's their cultural value. That view of multiculturalism is entitled to no respect.

Hat tip to Ophelia Benson for her coverage of the issue.

Good News From The United Kingdom: Lesley Kemp Prevails Against Censorious Thuggery

Back in April I wrote about Lesley Kemp, a transcriber who was sued for defamation in England when she complained on Twitter about delays in being paid by Resolution Productions and its principal Kirby Kearns. When I wrote Resolution Productions seeking comment, I received a threatening-to-the-best-of-his-limited-abilities email from Barjinder Sahota of Sahota Solicitors who demanded that I "resist and desist" writing bad things about his clients. I responded like me.

Good news today: Ms. Kemp has won and the plaintiff Kirby Kearns has abandoned the field. Kemp was tremendously fortunate to secure pro bono help from Robert Dougans of Bryan Cave and no-win-no-fee help from Jonathan Price of Ely Place Chambers, with support from the Libel Reform Campaign and from censorious-thuggery survivor Simon Singh. Kemp reports that her team backed Kirby Kearns and Sahota off with a clever gambit: since Kirby Kearns is a resident of Qatar, they asked the English court to force him to post a bond to secure costs, which he was unwilling to do:

As Mr Kearns is resident in Qatar, my solicitors applied for an order requiring Mr Kearns to pay money into court as security for my costs of defending the claim. Despite his solicitors threatening me with indemnity costs orders for making this application and saying it was unfounded (although never explaining why), Mr Kearns on 18 November 2013 decided to 'discontinue the claim' 2 weeks from when my application was going to be heard. Mr Kearns explains this decision as being based on being unwilling to pay security for my costs.

Ms. Kemp was unfortunate to be menaced by a such a lawsuit, and unfortunate to be subjected to it in England (which, despite the best efforts of reformers, is still a haven for libel tourism thanks to its pro-plaintiff libel laws), but she's extremely lucky to get such an able team to help her without cost to her. Freedom of expression depends not just on laws and efforts to reform them, but on principled individuals like Mr. Dougans and Mr. Price donating their skills and standing up to contemptible censorship. Freedom of expression also depends upon citizens inflicting social consequences upon the plaintiffs who bring suits like this and the lawyers who represent them. People who bully should be treated like bullies.

Mr. Sahota never wrote me again after my reply to his threat to me. If anyone reading this has been threatened with a defamation suit by Mr. Sahota or his firm, I have been asked to convey that there are solicitors in England who stand ready to represent you for free or on a no-win-no-fee basis, depending on the case.

Stand up against censorship.

Edited to add: Mr. Kearns has released a public statement, which I have uploaded here for your review of his version of events.

Cathy Gellis Wins Pro Bono Victory Against U.K. Defamation Subpoena

I've previously praised Cathy Gellis, who helped provide pro bono representation to an anonymous satirical blogger menaced by Charles Carreon, and who has guest-blogged here about the Prenda Law debacle.

Time for more kudos.

Last week Cathy — again offering her valuable services pro bono — won a hard-fought free speech battle and succeeded in quashing a subpoena that sought to unmask an anonymous blogger. The blog — the St. Lucia Free Press — wrote critically about the development of a local resort and made accusations of misconduct. One executive — Oliver Gobat — asserted that the St. Lucia Free Press coverage was factually mistaken and defamatory to him. Did he sue in St. Lucia? He did not. You go to St. Lucia to vacation. To find a friendly forum for a defamation claim, you go to the United Kingdom, that haven for libel tourism and abusive defamation laws.

Mr. Gobat wanted to uncover the identity of the person running St. Lucia Free Press. The ISP is in Northern California. So Mr. Gobat sought and obtained from a court in the United Kingdom a discovery order in a rather abbreviated proceeding, then used that foreign court order to purport to subpoena the ISP here in California to discover the blogger's identity.

Cathy Gellis filed a petition and supporting papers seeking to quash the subpoena, attacking (amongst other things) the adequacy of the UK process, the validity of the UK court order in America, and the insufficiently established proposition that the St. Lucia Free Press comments were defamation. Mr. Gobat's lawyers' response was a model of blustering entitled outrage, demanding sanctions against Cathy and excoriating her. How dare she!

She dared, and she won. After Cathy's reply, and a lengthy hearing at which the judge (to quote Cathy) "took the better part of the hour expounding on all the due process problems requiring him to quash the subpoena," the judge quashed the subpoena. Far from granting Mr. Gobat's attorneys' demand for sanctions, the judge granted fees and costs to Cathy.

This is a big win, and an important one. The St. Lucia Free Press may yet have to address, in court, whether its words about Mr. Gobat were false and defamatory. There's nothing wrong with that. But the sequence of events here was very troubling. The United States has emerging legal norms protecting anonymous bloggers and requiring plaintiffs to demonstrate their case has merit before unmasking them. But what happens if a litigant can evade those norms by running to a notorious libel-tourism haven like the United Kingdom — with its increasingly problematical approach to speech and its distinctly pro-plaintiff libel laws — and get a discovery order that they can then enforce in the United States via subpoena? There must be a process to challenge foreign discovery orders so that U.S. courts do not become mere conduits for foreign censorship. Cathy succeeded in using one such process.

As I've said before, our legal system has its good points, but it is also deeply flawed. It permits censorious abuse without imposing adequate consequences on the abuser. It can be ruinously expensive to be a defendant whether or not a claim has merit. Whatever theoretical defenses our laws may provide, only one thing is practically sufficient to defend freedom of expression: the continued willingness of lawyers like Cathy Gellis to step up and offer pro bono services to people who can't afford to defend themselves. She has my thanks and admiration, and I hope she has yours. Kindly spread the word.

Four Points To Remember In Connection With The Detention of David Miranda

This weekend British authorities detained David Miranda — a Brazilian citizen and partner of journalist Glenn Greenwald — for nine hours at Heathrow Airport as he traveled from Berlin to Brazil. Miranda was detained under Schedule 7 of the U.K.'s Terrorism Act of 2000, which allows up-to-nine-hour detentions at the border when British agents wish to question travelers they believe might be "concerned in the commission, preparation or instigation of acts of terrorism." British authorities reportedly took all of Miranda's electronics and electronic storage devices.

Miranda had been visiting filmmaker Laura Poitras, who has been repeatedly detained by the United States government when traveling here, and who — like Greenwald — is associated with the revelations by former NSA contractor Edward Snowden.

Miranda's experience was undoubtedly terrifying and infuriating. On the other hand, at least he wasn't stalked and abruptly shot seven times in the head as he lay prone on a subway floor, like his countryman Jean Charles de Menezes, whose random encounter with British anti-terrorism policy was fatal.

Responses have been varied. Many view this as an abuse of anti-terrorism measures to harass journalists and pursue leak investigations. Others say that Greenwald was using Miranda to courier documents connected to illegal leaks, and should not be surprised that Miranda was detained. (I note that nobody seriously asserts that Miranda has any connection to terrorism; the people defending or minimizing his detention seem to be asserting that it is acceptable for British authorities to use Schedule 7 to investigate the Snowden leak.)

I know what I think. But I am waiting a bit to write more in detail. As I analyze the competing arguments, my view will be informed by these points:

1. Governments lie about the scope of their surveillance measures against us.

2. Governments say that what they are doing in the war on terrorism needs to be secret, but governments have an established record of lying about their need for secrecy.

3. When governments say that they are using their powers to fight terrorists, government are lying. Government actually use their expanded powers to pursue whatever they want, including copyright infringement and the War of Drugs. Therefore it would not surprise me in the least if a nominally anti-terrorist measure were stretched here to accommodate a leak investigation.

4. Governments say that they are using their power to fight terrorists, as if the identity of "terrorists" is a static and principled matter. In fact, who is or isn't a terrorist is a political question resolved in the discretion of the government based on the balance of power at any given time, as I learned to my regret.

Those four points are mostly supported by references to U.S. actions, but I see no particular reason to expect the U.K. to act differently.