Search Results for: "eugene volokh"

Patterico Prevails: Vexatious Legal Attack on Speech Fails

For the last few years I've had the privilege of acting as pro bono counsel for Patrick Frey, who blogs as Patterico, in defense of a thoroughly frivolous federal case filed to censor his speech. That's given me the invaluable opportunity of working with the redoubtable Ron Coleman as co-counsel both in the district court and the Ninth Circuit. You can catch up on the legal issues in the case here and here.

Now, after years of litigation, I'm pleased that the case has ended successfully for Patrick. As Patrick announced yesterday, he and plaintiff Nadia Naffe have settled the matter for a walk-away. Patrick retracted nothing and paid nothing, and only waived his fees and costs, and Naffe dismissed the case with prejudice — meaning it can't be refiled.

It's both a good thing and a bad thing. It's a good thing because it's the right result: the case was a blatant politically motivated attack on protected speech. It's bad because it took so much time and work. The flaws in the system it exposed are too extensive for one post, but one thing stands out: the case highlighted the need for a federal anti-SLAPP statute that makes it harder for vexatious litigants to abuse the federal court system. You can track the progress of various proposed anti-SLAPP statutes here. If you want to help make this sort of abuse harder, consider becoming a vocal supporter of state and federal anti-SLAPP statutes. Write your representatives.

Thanks are due to Ron, for leadership and exceptional skill, to Eugene Volokh, for a very strong amicus brief before the Ninth Circuit, and to Patrick, for perseverance and principle.

Next.

California's City of Inglewood Can't Copyright City Council Meetings, Case Against YouTube Critic Tossed

A brief update on a case I'd written about on my old pitiful blog, where you can read more if you're interested, about the City of Inglewood, California and its ill-fated attempt to sue a YouTube critic on the basis that videos of its City Council meetings were protected by copyright.  It didn't go well, and will probably get worse for Inglewood's taxpayers.

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Center for Medical Progress May Win Abortion-Related Prior Restraint Fight In Los Angeles

A couple of weeks ago I discussed a lawsuit filed by StemExpress — a broker of fetal tissue — against the Center for Medical Progress, the group at the heart of the ongoing video-based criticism of Planned Parenthood. I noted that a judge of the L.A. County Superior Court had issues a temporary restraining order preventing CMP from releasing a video of a meeting it had with StemExpress executives, and expressed some concern about the reasoning and how the ruling was constitutional under the prior restraint doctrine. Eugene Volokh's take was clearer and less prone to outbursts of profanity.

StemExpress' initial success now appears unlikely to continue. CMP has filed a well-drafted anti-SLAPP motion attacking the StemExpress complaint. I've explained how anti-SLAPP motions work before. If you're being sued for speech, and you believe the speech is protected, you can file the motion, lay the factual framework for the speech being protected, and force the plaintiff to come forward with admissible evidence showing it could plausibly succeed on its claims. Moreover, an anti-SLAPP motion halts discovery absent a special order of the court.

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Lawsplainer: So Are Those Christian Cake-Bakers In Oregon Unconstitutionally Gagged, Or Not?

tldr: yes with an if, or no with a but.

By now you've heard about how an Oregon Labor Commissioner ordered the former owners of a bakery to pay $135,000 for refusing to bake a wedding cake for a same-sex couple. That order was widely reported as "gagging" the bakers and preventing them from expressing their opposition to same-sex marriage. My initial conclusion was that this spin was clearly wrong. People I respect — including my co-blogger Patrick — suggested that I should take a more careful look, and I have. My modified conclusion is that the Oregon Labor Commissioner's order is very troubling in light of the facts of the case because it's not clear what it bans. Based on the evidence before the Commissioner, the order may or may not purport to ban the Kleins from saying that they intend to continue to litigate the issue or that they believe that the order is unconstitutional.

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Do Judges Have Inherent Dignity?

According to Justice Anthony Kennedy, the Constitution provides all Americans a right to "equal dignity in the eyes of the law."1 That's nice in theory I suppose, but in the America where I grew up dignity had to be earned, and maintained, by correct behavior and continued demonstration of good character. Dignity built up over many years could be thrown away in seconds by one rash or foolish act.

That's just what Judge Mark Mahon, Chief Judge of Florida's Fourth Circuit Court in Jacksonville, is doing to his own dignity. Over the course of a lazy three day weekend, Judge Mahon beclowned himself and disgraced his office. He did so by subverting the United States Constitution, which he is sworn to uphold and protect, in a vain attempt to protect that now vanished dignity.

Here's the story.

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Did The Department of Justice Get A Gag Order Silencing Reason About The Grand Jury Subpoena?

On June 8 — ably assisted, as I am now, by my co-blogger Patrick — I reported on a federal grand jury subpoena issued to Reason.com in an effort to unmask commenters who used obnoxious hyperbole about Judge Katherine Forrest, who sentenced Ross "Dread Pirate Roberts" Ulbricht to life imprisonment in the Silk Road case.

In that post, I reported that Assistant U.S. Attorney Niketh Velamoor indicated that he "believed" that there was a gag order prohibiting Reason.com from disclosing the existence of the subpoena. I expressed skepticism about that claim because Mr. Velamoor had just two days before signed a letter telling Reason.com that the Department of Justice asked, but did not require, that the subpoena be kept secret.

Since then, additional factors lead me to believe that there is, in fact, an under-seal gag order purporting to prohibit Reason.com from disclosing or discussing the grand jury subpoena.

This post discusses why I think that, and why such a gag order would be an abuse of the law and a grave abuse of power.

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Partial Victory In Patterico's Free Speech Case Before Ninth Circuit

Long-time readers may recall that, together with Ron Coleman, I'm pro bono counsel to Patrick Frey, who blogs as Patterico.

Patrick was targeted with a thoroughly vexatious lawsuit attacking his blogging. Ron and I won the case in the trial court, securing the dismissal of plaintiff Nadia Naffe's federal and state claims.

Today the Ninth Circuit upheld the result in part and reversed it in part. The opinion is here.

You may recall that the trial court dismissed the entire case based on two points. First, the court agreed with us that Ms. Naffe did not state any facts showing that Mr. Frey blogged in his official capacity as a Deputy District Attorney, and therefore her Title 28 U.S.C. section 1983 claim for civil rights violations "under color of law" could not survive, because Section 1983 only applies to state actors. Second, the trial court — on its own — questioned whether Ms. Naffe could prove the $75,000 in damages necessary for diversity jurisdiction2, and eventually found that she had failed to make a showing of sufficient damages.

The Ninth Circuit agreed on the first part and disagreed on the second.

In a published decision that will be significant for public employees who blog, the Ninth Circuit agreed that Mr. Frey didn't blog as a "state actor" for purposes of Section 1983 just because he's a county employee. The Court agreed that Naffe had not stated any facts giving rise to a reasonable inference that Patrick was blogging as part of his official responsibilities. "Frey is a county prosecutor whose official responsibilities do not include publicly commenting about conservative politics and current events." The Court also rejected Naffe's argument that Patrick's blogging was related to his work as a county prosecutor because he discussed criminal law issues. Finally, the Court noted that Patrick frequently reminded readers that he blogged and Tweeted in his private capacity, not his official capacity.

Crucially, the Ninth Circuit confirmed that a state employee can talk about the nature of their work without transforming their speech into state action. That's key for the free speech rights of all public employees. The Court noted "if we were to consider every comment by a state employee to be state action, the constitutional rights of public officers to speak their minds as private citizens would be substantially chilled to the detriment of the 'marketplace of ideas.'" That's what we argued on appeal, and Eugene Volokh ably argued in his amicus brief on behalf of the Digital Media Law Project: Naffe's proposed interpretation of the law would mean that a teacher couldn't blog about teaching, or a police officer about police work, without transforming their writing into official "state action" subject to civil rights lawsuits. That portion of the Ninth Circuit's opinion will be useful whenever a state employee is sued under the theory that their private speech should be treated as official action.

However, the Ninth Circuit reversed the trial court's dismissal of the state claims. At issue was the standard the trial court applied. Having questioned whether Ms. Naffe could prove $75,000 in damages, as required for diversity jurisdiction, the trial court found that she had not proven such damages by a preponderance of the evidence. The Ninth Circuit found that was the wrong standard. Instead, it found, a trial court should only dismiss a case for lack of diversity jurisdiction when it appears to a "legal certainty" that the plaintiff cannot recover at least $75,000. That's an extremely low standard for Naffe to satisfy, and the court found she satisfied it.

So: the case goes back to the trial court. When it does, we'll have the opportunity to ask the trial court to address our motions that were mooted by its prior ruling. Specifically, we filed an anti-SLAPP motion attacking Ms. Naffe's claims as meritless attempts to chill speech, and a motion under California Code of Civil Procedure section 1030 seeking to compel her to post a bond to cover the costs of the case. We're confident those motions are correct and look forward to pursuing them.

Meanwhile, as before, it remains a privilege to work with Ron Coleman and to defend Patrick Frey's free speech. Thanks to Eugene Volokh, whose excellent brief on the free speech implications was instrumental.

Minnesota Court Rules That Criminal Libel Statute Is Unconstitutional

A few states retain archaic statutes making some types of libel a crime. They're rarely used. They show up fairly regularly in stupid legal threats, and very occasionally in politically motivated harassment prosecutions.

Yesterday the Minnesota Court of Appeals struck down that state's criminal libel statute.

Minnesota's statute criminalizes statements that "expose[] a person or a group, class or association to hatred, contempt, ridicule, degradation or disgrace in society, or injury to business or occupation." It offers a defense of justification for a few exceptions:

Violation of subdivision 2 is justified if:

(1) the defamatory matter is true and is communicated with good motives and for justifiable ends; or

(2) the communication is absolutely privileged; or

(3) the communication consists of fair comment made in good faith with respect to persons participating in matters of public concern; or

(4) the communication consists of a fair and true report or a fair summary of any judicial, legislative or other public or official proceedings; or

(5) the communication is between persons each having an interest or duty with respect to the subject matter of the communication and is made with intent to further such interest or duty.

Isanti County prosecuted Timothy Robert Turner for violation of this statute when he posted malicious ads on Craigslist in the name of his ex-girlfriend and her daughter soliciting strangers for sex. He added their cell phone numbers. Timothy Robert Turner is scum.

The Minnesota Court of Appeals agreed that Turner's actions were contemptible and defamatory. But they found that the statute violates the First Amendment. First, it doesn't recognize that truth is an absolute defense to defamation — under the statute, you could be criminally prosecuted for making a true statement without "good motives." Second, it criminally punishes false statements about public figures or matters of public concern without requiring the government to show that the statements were made with actual malice — the long-standing standard protecting such speech.

Notice that the loathsome Timothy Robert Turner's speech was unquestionably false, and wasn't uttered about public figures or matters of public concern. But the Court overturned the statute in his case and reversed his conviction anyway. Why? In First Amendment cases, when a statute is so defective that it prohibits a substantial amount of constitutionally protected speech, courts will allow a litigant to challenge the entire statute even if the particular litigant's speech could constitutionally be punished. That's sometimes called the overbreadth doctrine. Here, the state conceded that the statute was overbroad (and possibly even conceded that it's substantially overbroad — it's hard to tell). The state asked the court to employ a remedy in this situation — to construe the statute narrowly to make it constitutional, that is, to say "Minnesota can only use this statute in cases involving false statements, and only by proving actual malice in cases involving public figures or matters of public interest." Courts are supposed to do that when they reasonably can rather than strike down an entire statute. Here, the court not unreasonably found that they'd have to fundamentally rewrite the statute to save it, and refused to do so. The line between narrowly construing a statute to save it and "rewriting" a statute is not perfectly clear.

The bottom line: the Minnesota court recognized that an archaic criminal libel statute was invalid when it didn't include the free speech protections afforded modern civil defamation defendants.

Eugene Volokh submitted a clearly effective amicus brief. Timothy Robert Turner escapes conviction, but hopefully never gets a job or relationship again thanks to Google.

How To Spot And Critique Censorship Tropes In The Media's Coverage Of Free Speech Controversies

American journalists and pundits rely upon vigorous free speech, but are not reliable supporters of it. They both instruct and reflect their fickle audience.

It's easy to spot overt calls for censorship from the commentariat. Those have become more common in the wake of both tumultuous events (like the violence questionably attributed to the "Innocence of Muslims" video, or Pamela Geller's "Draw Muhammad" contest) and mundane ones (like fraternity brothers recorded indulging in racist chants).

But it's harder to detect the subtle pro-censorship assumptions and rhetorical devices that permeate media coverage of free speech controversies. In discussing our First Amendment rights, the media routinely begs the question — it adopts stock phrases and concepts that presume that censorship is desirable or constitutional, and then tries to pass the result off as neutral analysis. This promotes civic ignorance and empowers deliberate censors.

Fortunately, this ain't rocket science. Americans can train themselves to detect and question the media's pro-censorship tropes. I've collected some of the most pervasive and familiar ones. This post is designed as a resource, and I'll add to it as people point out more examples and more tropes.

When you see the media using these tropes, ask yourself: what normative message is the author advancing, and does it have any basis in law?

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Is Rapper Brandon "Tiny Doo" Duncan Being Prosecuted For Rapping About Gangs?

Two things are clear: Brandon Duncan raps under the name "Tiny Doo," and he's being prosecuted for participation in the Lincoln Park street gang in San Diego.

After that, things get a little cloudy. But it appears that the San Diego County District Attorney's Office is prosecuting Duncan on the theory that a gang's activity made his rap music more popular, and that he therefore benefitted from gang activity. That poses some First Amendment problems.

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