Popehat

159

New Theme: Comments

We're customizing a new theme. Feel free to add your constructive feedback, positive or negative, to the comments below!

In case you're interested, the theme I'm tweaking is Hueman by Alexander Agnarson, and he has released it (in exchange for acts of kindness) under the commendable WTF Public License.

Old:

New:

In the coming days, we'll be revisiting our venerable logo to make it larger and jauntier in the new theme. We'll also be making minor refinements and major changes as we discover things not to our liking. Feel free to add your thoughts by commenting!

47

"Crisis Manager" Xavier Hermosillo Shrewdly Defuses Immigration Tumult By Threatening Cartoonist

Murrieta, California is a town recently known for angry crowds screaming at Immigration & Customs Enforcement buses full of kids. Apparently Murrieta thinks that sort of coverage is not a selling point for the town, because they hired Xavier Hermosillo, a "Crisis Manager." This is a typical and prudent move. Across America, if you ask public officials "how can we recapture the media narrative, calm hostility and anger, and promote sensible dialogue," they will inevitably reply "hire an internet talk show host."

Hermosillo set to work. What could he do to calm the troubled waters, improve the town's reputation, and capture the sympathy of the media?

Of course! He could make moronic defamation threats against Lalo Alcaraz, a political cartoonist who writes the strip La Cucaracha! I can see no way that could go badly.

Hermosillo was apparently agitated over a La Cucaracha cartoon that suggested the bus-screamers were racist. A political cartoonist commenting on politics and public behavior? THIS WILL NOT STAND!

IFORGOTHOWTOCRISIS

For the picture-impaired: Mr. Hermosillo said "Lalo, There IS a fine line between your Constitutional right to draw cartoons and expressed [sic] your opinions, and falsely, deliberately, and maliciously labeling and attacking an entire community as racist or as 'Hate City.' You are working overtime to damage Murrieta and such a false premise is actionable. There's a fine line between humor and stupidity. You may have crossed that line at your own peril."

This is, of course, utter bollocks. An "entire community" can't file a defamation suit. Even if they could, political cartoons are at the very core of what the First Amendment protects. Like it or hate it, Lalo's cartoon is a classic example of a political opinion, stated cartoonishly, in reaction to public facts. You may disagree with Lalo's suggestion that the bus-screamers were racists, or that their behavior is fairly attributable to the community of Murrieta, but nobody with the most minimal grasp of defamation law or the First Amendment would think it's an actionable false statement of fact.

Under the familiar Streisand Effect, this buffoonish threat will probably draw far more attention to the comic, draw more negative attention to city leadership ("we paid tax dollars to hire this cretin?"), and make the media substantially more hostile, if that is possible. One thing is for certain: it will not promote any intelligent debate on immigration whatsover.

You would think that a "Crisis Manager" would understand the Streisand Effect, wouldn't you?

27

Gleeful Troll Todd Kincannon Files First Amendment Suit Against South Carolina Attorney Authorities

Todd Kincannon is a performance artist working in the medium of outrage — his own, and that of easily gulled critics. Surely you've heard of him. Perhaps you noticed him the time he got Salon in a tizzy over his obnoxious tweets about Wendy Davis, or the time he agitated the Huffington Post with his grotesque tweets about Trayvon Martin, or the time he enraged Daily Kos (and, for that matter, nearly everyone else) by saying transgendered people should be put in camps. Todd Kincannon would like to be Ann Coulter if he grows up, but lacks the subtle charm. Like Coulter — or like a dilatory burglar who only robs the homes of people who leave their doors unlocked — Kincannon relies on people agreeing to be outraged by someone whose purpose is outraging them for lulz, political advantage, and profit.

Now Kincannon, an attorney, claims he is being censored by South Carolina attorney discipline authorities. He's filed what I will very generously describe as a federal lawsuit over it.

(more…)

22

Monday Schadenfreupdates (Now Updated!)

Why do bad things happen to good people? I can't tell you that. But I can tell you that bad things happen eventually to bad people.

For instance:

1. Perhaps you remember David Bell, chief fraudster of the U.S. Telecom fraud ring discussed in my "Anatomy of a Scam" series. He's had criminal charges pending in San Bernardino County since 2011. Recently he entered a no contest plea to two counts of grand theft auto, plus enhancements for priors, thus not admitting guilt but admitting that the government could prove those particular counts against him. He'll be sentenced in September. And what about the feds? Be patient . . . .

2. You probably also remember Dennis Toeppen, the oddly truculent head of bus company Suburban Express, who liked to threaten online critics with lawsuits and heap them with abuse. Ars Technical reports that Toeppen was arrested on two misdemeanor counts of electronic harassment. I'd reserve judgment until seeing the basis for the case; many cyberbullying and cyberstalking statutes are ridiculously overbroad and a violation of the sacred First Amendment right to be a turd. Ars Technica points out a recent Yelp thread in which Toeppen, true to form, lashes out at bad reviewers; it's bad business, but almost certainly protected speech.

3. The Prenda Law gang, about whom I've written a word or two, suffered another setback last week in the United States Court of Appeals for the D.C. Circuit. On May 27th, the D.C. Circuit overturned a trial court order permitting AF Holdings — a Prenda shell — to take early discovery from Cox Communications of the accounts associated with various IP addresses. The decision did not go well for Team Prenda. The D.C. Circuit recognized the various tactics criticized by other courts across the country, savaged AF Holdings' theories of why they would have personal jurisdiction over nationwide downloaders in D.C., and undermined Prenda's arguments about why they could combine multiple defendants in the same case. The court sent the case back to the trial court to see whether sanctions were appropriate for AF Holdings' notorious use of an allegedly forged signature on a copyright assignment. Protip — if a United States Court of Appeals refers to you as "law firm," with scare quotes thus, you're gonna have a bad time.

The wheel turns slowly, but it turns.

Update: Now With More Schadenfreude!

4. In Oregon Troy Sexton — who responded to the Popehat Signal and won an anti-SLAPP motion on behalf of an anti-telemarketing blogger sued for defamationThatLeftAMark has been awarded around $41,000 in fees and costs against the plaintiff, attorney F. Atone Accuardi. Keep those fee awards against censors rolling in, people.

48

Poseur Pastor Pouts, Pursues Preposterous Proceeding, Procures Painful Penalty

Ergun Caner was angry.

There he was, a successful man of God: a published author, Dean and President of the Liberty Baptist Theological Seminary and Graduate School, a sought-after inspirational speaker. Suddenly, crass miscreants laid him low. Critics pointed out he told puzzlingly inconsistent stories about his background. Though public records and his own book suggested that he emigrated from Sweden to Ohio at the age of four, in his inspirational speeches he claimed he had been raised in Turkey, learned of America only through television, and trained as an Islamic jihadist.

Perhaps the story of a foreign jihadist converting to Christianity was more inspiring than the story of an Ohioan converting.

Liberty University conducted an investigation and removed him. But though he found new employment, Egun Caner did not view the matter as resolved. He hungered.

In 2013, he filed a federal complaint in Texas against Jason Smathers and Jonathan Autry, men who posted to YouTube two videos of Caner's . . . shall we say imaginative public presentations. Caner claimed violation of a purported copyright in the videos. He sought damages, attorney fees, and an injunction against posting of the videos.

In other words, Caner sued someone for posting proof that he had been telling inconsistent stories about his background — that he is a fabulist.

Jonathan Autry agreed to take the videos down — no doubt because of the ridiculous expense of a lawsuit. That wasn't good enough for Caner, who continued to demand more concessions. That, as it turned out, was a very poor decision. Autry and Smathers, very ably represented pro bono by Josh Autry and Kel McClanahan, filed a strong motion to dismiss, arguing that (1) Caner could not demonstrate that he had a copyright in the videos, and (2) the posting of them to prove Caner's mendacity was classic fair use.

Caner and his attorney did not take this motion very seriously, I think. I would call their opposition brief nasty, brutish, and short, but it's not substantive enough to be nasty or brutish. It's a feeble two-page gesture that ignores most of the motion's arguments.

United States District Judge Norman K. Moon was unimpressed. He granted the motion and dismissed Caner's case in an extremely thorough (and no doubt very embarrassing to Caner) written opinion.1 First the court noted that Caner had conceded that he never filed a copyright application for one of the videos; that's a prerequisite to maintaining a copyright suit. Second, the judge agreed that the posting of the video was classic fair use, because it was a critical non-commercial use designed to impact discussion of Caner's dishonesty. The court made short work of Caner's thoroughly ridiculous arguments: that the defendants were not protected by fair use because it was the work of a "vindictive" "cyber terrorist", that the defendants were "not qualified" to offer criticism of Caner, and that fair use only protects "appropriate criticism from people that are qualified to render those opinions i[n] the market place and exchange of ideas in academia and elsewhere.” This is too much whaarbaargl.

But we haven't even gotten to the good part yet.

Autry, as the prevailing party in a copyright litigation, filed for attorney fees. Last week, in a devastating opinion, Judge Moon granted $34,262.50 in attorney’s fees and $127.09 in costs to Autry's attorneys, agreeing that Caner's litigation conduct warranted it. The review of Caner's conduct is brutal. The court ruled that Caner (1) pursued the case after Autry took the videos down, (2) demanded, as a condition of settlement, that Autry's young children sign a non-disparagement agreement, (3) delayed the case, (4) failed to seek discovery, opposed the motion to dismiss on the grounds that he needed to take discovery, but could not articulate what discovery he needed, (5) contradicted himself, (6) made unreasonable legal arguments without any support (like the "you must be qualified to criticize" argument), and most importantly (7) filed the case to silence criticism:

In this case, Plaintiff filed a copyright infringement suit to stifle criticism, not to protect any legitimate interest in his work. He and his counsel prolonged this litigation, costing Defendant and his attorney valuable time and money. Defendant’s counsel has set aside other
profitable matters to attend to this meritless litigation, and deserves compensation for doing so. Likewise, Plaintiff should be deterred from seeking to use the Copyright Act to stifle criticism in
the future.

A-W-E-S-O-M-E, that spells Judge Moon.

Caner has failed utterly, has been exposed for his censoriousness, and has had his dishonestly much more thoroughly documented and widely publicized than it would have been if he had not been such a vindictive jackass.

This should happen more often. As I suggested yesterday, intellectual property claims are increasingly abused to silence criticism. Judges ought to avoid their normal squeamishness about attorney fee awards and hammer the plaintiffs in meritless and censorious cases.

Please join me in congratulating the victorious pro bono team.

23

Popehat Signal Update: Dream Team Victory In Texas

I bring good news: top-notch work by generous and dedicated lawyers has produced a free speech victory in Texas.

Last year I lit the Popehat Signal seeking help for J. Todd DeShong, a blogger and AIDS activist. DeShong, a longtime critic of the nutty and conspiratorial junk science occasionally directed at AIDS issues, ran afoul of Clark Baker, an ex-cop and full-blown AIDS denialist who offers "expert" "witness" services. You may recall my description of Baker's phone call to DeShong's mother:

I interviewed Mr. DeShong's mother, a sweet lady with a spine of Texas steel. She told me about how Mr. Baker called her out of the blue and ranted at her. Mr. Baker angrily denounced her son, and told her that, as a police officer, he knew about dangerous people, and that Ms. DeShong should fear that her son would kill her in her sleep. He also threatened that he was arranging for doctors Mr. DeShong had criticized to sue him for defamation. Ms. Deshong pointed out that such a suit would bring no joy; Todd DeShong is not a rich man. "But you have money, right? You have a house, right?" responded Mr. Baker, implying that he might put her assets at risk. "He thought he could intimidate me. He didn't know who he was dealing with," said Ms. DeShong, who sounds like a good person to have at your back.

Baker sued DeShong in federal court in Texas over DeShong's criticism of Baker's AIDS-denialist rhetoric and his "expert" "witness" service the HIV Innocence Group. Baker claimed that DeShong's criticism was not only defamation, but violation of the HIV Innocence Group's trademark rights in its name. Baker's motive may have been mixed: he may have wanted to silence DeShong, but he may also have wanted to use the federal suit to pursue his conspiracy theories about AIDS researchers. I cannot say what his lawyer was thinking, if he was.

Such federal litigation is ruinously expensive to defend; DeShong couldn't afford a defense and Baker might have succeeded in silencing critics through abuse of the legal system. Fortunately, lawyers who care about free speech rode into the breach: D. Gill Sperlein, Paul Alan Levy of Public Citizen, Gary P. Krupkin, and Neal A. Hoffman filed motions to dismiss (attacking the thoroughly specious trademark claims) and a strong motion under Texas' relatively new anti-SLAPP statute.

Last week the dream team won. United States District Judge Sam R. Cummings granted DeShong's motion to dismiss the trademark claims, and then refused to hear the state law claims and dismissed them. The court's ruling held the line on a key free speech concept: using a company's name to criticize it does not violate the company's trademark in the name. Baker had claimed that sites like "HIV Innocence Group Truth" violated trademark rights and were part of an effort to destroy him by discrediting him. But Judge Cummings pointed out "[n]o reasonable person would take one look at DeShong's website and believe that Baker authorized its content." Moreover, the court explained, trademark law doesn't protect a company from criticism. The Lanham Act protects a competitor from profiting from the misuse of another company's trademark; it does not protect a company from vigorous and even ruinous criticism employing its name. Judge Cummings also rejected Baker's argument that DeShong violated trademark rights by using a URL likely to dominate search results for "HIV Innocence Group." That theory, too, would have allowed the Bakers of the world to abuse the Lanham Act to prevent criticism.

I suspect Paul Alan Levy, who has done a lot of important work protecting "gripe sites" and critics from bogus trademark claims, had a strong hand in winning this issue.

Having dismissed the federal trademark claim, Judge Cummings declined to exercise supplemental jurisdiction over the state claims like defamation, finding that state issues (like application of Texas' anti-SLAPP statute) would predominate over federal issues. Therefore he didn't reach the anti-SLAPP motion. That's an increasingly common approach by federal judges in such cases; it's what the judge did in the censorious Naffe case in which I was co-counsel.

Baker has appealed, and could conceivably re-file his censorious screed in Texas state court. If he does, the dream team's work on the anti-SLAPP motion is already done, and I suspect Baker will find no joy before a Texas state judge. I'd lay very good odds that Baker will lose his appeal. Meanwhile, I hope that DeShong's legal team seeks and recovers legal fees from Baker based on winning the Lanham Act claim. The suit was contemptible and represents exactly the sort of case in which federal courts should use their statutory power to award attorney fees to deter such abuse of the system.

Please join me in expressing admiration and thanks to Gil, Paul, Neal, and Gary. Their generosity with their time and talents didn't just help DeShong's free speech: it helped yours. Contributions like theirs are essential to defending free speech principles in a broken system that allows unscrupulous clients and lawyers to silence dissent by inflicting ruinous defense costs. They are heroes.

94

Long Time, No See

I've been away from the blog for a while.

There will come a time when I'll write about the circumstances of my absence, which were unpleasant. But not today. For now, I'd like to express my gratitude for the support of my family, my co-bloggers here, and the friends who have written and offered good cheer. I'm very fortunate.

I'm back. Send in those story tips, requests for free speech help, abusive and confusingly scatological emails, and thus-and-such.

101

Nazism

So, if you're a grammar Nazi, then feats of form and usage that strike you as "wrong" (or inferior, or jarring) fairly leap off the page or screen at you in just the same way that my use of "so" at the start of this sentence irks all who are by now fed up with hearing that word abused that way.

The French have an expression for obvious things and especially for things obviously wrong: ça saute aux yeux! That leaps out at the eyes! Like an eye-attacking deathfrog of death. Or blindness. Or blinding obviousness.

Many folks notice deviations from canonical grammar and usage; the Nazi is the one who sees most or all, all the time, until she's fed up. She feels welling up within her an urgent, primal cry in behalf of the norms she has embraced, the quirky irrationales of the tongues to which she's wedded. The Nazi is the one for whom, involuntarily, cela saute aux yeux. Finally, with eggshell sensitivity to the descriptivists and positivists, she pipes up: "perhaps you should reconsider using 'begs the question' in that way." Then she ducks.

Have you been watching the newish BBC series Sherlock? I enjoyed the Holmes stories as a child but wasn't passionate about them. I enjoyed them again as an adult with the same result, but with an admixture of pity and contempt for the racism, sexism, inconsistency, and lack of complexity. I enjoyed them (despite these and other flaws) because they project a world and an ill-fitting inhabitant of that world, and they spark the imagination to consider how that combination might play out– a worthwhile exercise (especially for the logically inclined).

I grew up in a time when Basil Rathbone was the archetypal realization of Sherlock. And his bumbling Watson, who had so little to do with the character described in Doyle, was the archetypal moronic foil. I watched the fading films, but I wasn't married to that realization. Years later, I tried to watch Jeremy Brett's Sherlock– many consider it definitive– but couldn't stomach his interpretation. I didn't reject it because Rathbone; I rejected it because reading. That Sherlockian series aimed within a reasonable margin to be faithful to the canon, so Brett's Holmes is one reader's way of expressing what he found there. What he found, however legitimately derived, isn't what I had found.

The Sherlock of Robert Downey, Jr? Uhm… nice Wing Chun. And I haven't seen Elementary. And I skipped House. (See? Hardly a passionate Irregular.)

The BBC's Sherlock, now entering its fourth season, doesn't aim to stay faithful to the canonical stories; it aims to stay aware of them, and to show this, while re-envisioning the series in a contemporary setting. In this respect, its fidelity is like that of the more recent Battlestar Galactica vis-à-vis the less recent one. And it's brilliant. Often contrived, but then so were the Doyle tales. Sometimes hilarious, always well acted, often clever. Fragmented for the postmodernists, ironic for the Xers, savvy for the millennials. It's a lot of fun.

The show is, among other things, a fabric of in-jokes and allusions, some of them reaching forward within the reimagined world and some reaching out and back toward its Victorian antecedent. That the "Sign of Four" becomes the "Sign of Three" is reaching back; how it does so is reaching forward. That extra layer of literary texture provides a lot of the pleasure.

A recurring motif in Sherlock is that facts and inferences from them jump out nearly involuntarily at Sherlock. Cela saute aux yeux! And the show makes this clear in a medieval way, by literally overlaying text on the screen near the things he's observing. (Sometimes, the overlaid text is used for other purposes, such as making clear to the viewer what has just been texted to someone's device regardless of whether Sherlock knows that. This dual use of superimposed content would be interesting to study more systematically if you're looking for a dissertation topic….)

One respect in which this new Sherlock is enjoyable is that he's clearly superhuman; no mnemonist, no prodigy, no abductive reasoner would or could infer and calculate at the pace and in the ways that he does. He's a freak, and he's presented as a freak. ("Do your research! A high-functioning sociopath!"). And this offers another pleasure: in those moments when we, viewers entangled in the quotidian, draw a little inference from a telling detail in real life, we not only feel like Sherspock but participate in his condescension. We rise above our mundane capacity and attain a height from which to criticize (on eggshells). Having tested the tapir, we fling the femur. We enjoy, however briefly, the subtle pleasures of superiority, enforcement, and reproof. (Oxfordian in commas; Stratfordian in dramas.)

For example, we may read the clickbait article How to Fix Open Offices at Fast Company because we have an innocent interest in rolling back the horror. But as soon as we reach the second paragraphette, ça saute aux yeux: "Ferrigan's team ­creates 'enclaves' for collaborative working…" (emphasis added).

We try to proceed, but the solecism will not allow it– not until we've at least privately acknowledged the nature of the blunder, gauged its importance, and decided whether to intervene. Involuntarily, we recognize inferences about the writer that may be drawn with high probability: Didn't study Latin. Doesn't know roots. Mixes Latinate and Germanic irrespective of stylistic effect. Is insensitive to redundancy. Missed the 19th century. Was proofed, if at all, by someone with similar deficits. Doesn't care.

One after another, the phrases float up like on-screen annotations in Sherlock, and they hesitate near the eyes before dissipating. Id and Superego enraged, we begin to start to commence formulating a plan for intervention. Then the ego reels us in, and (wistfully waving farewell to the condescendible moment) we decide that the game that would then be afoot ne vaut pas la chandelle. It wouldn't be received well. Why waste illumination where it's not wanted? Pearls before Quine, but squirrels prefer pine.

Fine. Annihilate all stylistic norms. Wallow in your positivism. At this point, what difference does it make? I will diminish and go into the west.

That's one example, but if you're a grammar or usage Nazi, you don't need me to tell you that the occasions proliferate, especially among members of generation whippersnapper.

Correction offers a brief high, but a potent one. It's too engaging, too consuming, to allow oneself to be carried away with every noted blunder. Too indulgent. Here's my advice: offer a solution only seven percent of the time. And that's final.

63

Significant Developments In D.C. Anti-SLAPP Law.

UPDATE: Mr. Steyn advises me through Twitter that he has declined appeal of the Anti-Slapp motion to dismiss, because he wishes to conduct discovery against Dr. Mann. That makes the video below something of a wretched abortion, but as the other defendants in the case (Rand Simberg, National Review, and the Competitive Enterprise Institute) are moving forward with the appeal, I leave the video unaltered and unedited. My apologies to Mr. Steyn.

_____________________________________

Doe v. Burke is an important decision, handed down last week, on the District of Columbia's Anti-SLAPP statute. The D.C. Circuit Court of Appeals held that an anonymous "John Doe" defendant, sued for libel over internet comments concerning an attorney in a high-profile lawsuit, could immediately appeal the District Court's denial of a motion to quash a subpoena aimed at discovering his identity. The Court went further, and dismissed the suit against Doe entirely.  You may read the Burke decision here:

Doe v. Burke D.C. Anti-Slapp Opinion

This is a significant case. Defamation plaintiffs thinking of using D.C. as a venue for strategic lawsuits against public participation should think twice.  We've previously covered D.C.'s Anti-SLAPP law, extensively, in the lawsuit filed by climate scientist Michael Mann against journalists Mark Steyn and Rand Simberg. You may find our coverage here, and here.  As Steyn, Simberg, and their co-defendants are appealing the denial of their Anti-SLAPP motion to dismiss against Mann, we've invited a guest who is expert in the law of defamation to comment on the case:

68

Texas v. Johnson … v. Berg

1989:

wikipedia.org

Texas v. Johnson, 491 U.S. 397 (1989), was a decision by the Supreme Court of the United States that invalidated prohibitions on desecrating the American flag enforced in 48 of the 50 states. Justice William Brennan wrote for a five-justice majority in holding that the defendant Gregory Lee Johnson's act of flag burning was protected speech under the First Amendment to the United States Constitution.

2014:

wpxi.com

BLAIR COUNTY, Pa. — A Blair County man said he was standing up for this American Indian heritage and expressing his beliefs when he hung an American flag upside down and spray painted it earlier this week…

“I was offended by it…” said Allegheny Township police Assistant Chief L.J. Berg. Berg said he took the flag down and charged Joshua Brubaker with desecration and insults to the American flag. “I removed it from the building, folded it properly and seized it as evidence,” said Berg…

In Chief Berg's defense, intelligent people are barred by law from becoming police in many jurisdictions, and so we should perhaps not hold the chief to the same standards that we would use for a decent member of productive society.