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For the term ""eugene volokh"".
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Is Rapper Brandon "Tiny Doo" Duncan Being Prosecuted For Rapping About Gangs?

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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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Protecting The Free Speech of Censors: The Crystal Cox Saga

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This is how the rule of law works: we extend rights to the very people who would deny us those rights if they had the chance.

Ariel Castro imprisoned young women in his basement without anything resembling due process, but he got a lawyer and his days in court until he thoughtfully offed himself. We protected the Nazis' right to march at Skokie, and say what you want about the tenets of National Socialism, dude, but it doesn't protect the free speech or assembly rights of others. We protect the right of Fred Phelps' family to protest at funerals even though the America of Phelps' dreams is a theocratic hellhole.

So it shouldn't be any surprise that we protect the free speech rights of the disturbed and vengeful blogger Crystal Cox, even though she abuses the legal system in an effort to censor and retaliate against people for criticizing her.

That's how we roll.

Last week the United States Court of Appeals for the Ninth Circuit upheld Crystal Cox's First Amendment rights, and in doing so protected yours, and mine, in important ways. This post is about that decision, and about what Crystal Cox was doing to undercut the First Amendment while the Ninth Circuit was thinking about it. As you will see below, I am one of the people Cox has tried to silence with frivolous litigation even as courts were protecting her right to speak.

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An Existential Threat To America

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Sometimes a judicial opinion buries the lede. Other times a court will signal how the case will go from the first sentence.

Let nobody say that Judge Bruce Selya, Circuit Judge of the United States Court of Appeal for the First Circuit, buried the lede in affirming the federal conviction of Tarek Mehanna:

Terrorism is the modern-day equivalent of the bubonic plague: it is an existential threat.

The conclusion flows ineluctably from that premise: Tarek Mehanna's conviction for providing material support to Al-Qaeda must be upheld. And so it was yesterday.

But is the premise correct? And for what purpose do courts and government actors bring it to bear?

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Blawg Review 325.6

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So Long Ed

"Ed," the anonymous proprietor of the Blawg Review, passed away this week. Ed herded cats to make the internet a better place. That is, he organized lawbloggers (a prickly and unreliable lot) to write regular surveys of the legal blogosphere. Here's how he described his labor of love:

Blawg Review is the blog carnival for everyone interested in law. A peer-reviewed blog carnival, the host of each Blawg Review decides which of the submissions and recommended posts are suitable for inclusion in the presentation. And the host is encouraged to source another dozen or so interesting posts to fit with any special theme of that issue of Blawg Review. The host's personal selections usually include several that reflect the character and subject interests of the host blawg, recognizing that the regular readership of the blog should find some of the usual content, and new readers of the blog via Blawg Review ought to get some sense of the unique perspective and subject specialties of the host. Thanks to all the law bloggers who collaborate to make Blawg Review one of the very best blog carnivals of any genre.

Blawg Review did all of that and more. Through Ed's guidance, diverse law bloggers wrote about the subjects that moved them and introduced their readers to other law bloggers across the world. The result was a richer and more inclusive discussion of the law online. Patrick and I were privileged to host a Blawg Review back in 2009.

The best way to celebrate what Ed did is to keep doing it. Today lawbloggers are remembering him by writing Blawg Reviews. We're linking in a chain. Brian Tannebaum linked here, and when you're done here, go read Eric Turkewitz. If you want to read the whole chain, it starts here.

Popehat's Blawg Review entry will review — not surprisingly — recent developments in free speech law.

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The Socially Acceptable Range of Discrimination, Revisited

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Back in July, in the context of a baker investigated for refusing to provide a cake for a same-sex-marriage celebration, I posed this question:

My question is this: is there a principled reason that some people are outraged when anti-discrimination laws are applied to forbid discrimination against gays, but not to discrimination against Jews, or African-Americans, or any other group?

In other words, if people are outraged that anti-discrimination laws make merchants sell goods and services to same-sex couples, is there a good reason they aren't also outraged that the same laws require the same merchants to sell to Jews, or African-Americans, or white guys like me?

I raise the question again because the Supreme Court of the State of New Mexico has issued a decision in Elane Photography v. Willock, a well-known case in which a wedding photographer refused to photograph a same-sex ceremony and was sanctioned under New Mexico's anti-discrimination law as a result.

The New Mexico Supreme Court's decision is worth reading for several reasons. First, you will see social conservatives citing this decision as encroaching Gay Tyranny and proof that soon the government may be forcing churches at subpoena-point to conduct gay marriages. The actual facts and legal analysis of the decision show otherwise; the Court carefully explains why compelling public accommodations to obey anti-discrimination laws is different than compelling speech, and its language could not be rationally used to support compelling a church to administer a sacrament in violation of its beliefs.

Second, the Court raises the same point that I have been making: that there is no logical way to attack anti-discrimination laws when they apply to gays and lesbians without attacking them when they apply to, for instance, African-Americans. Consider how the Court replies to the photographer's hypothetical about whether an African-American photographer cold be compelled to photograph a Klan rally:

Elane Photography also suggests that enforcing the NMHRA against it would mean that an African-American photographer could not legally refuse to photograph a Ku Klux Klan rally. This hypothetical suffers from the reality that political views and political group membership, including membership in the Klan, are not protected categories under the NMHRA. See § 28-1-7(F) (prohibiting public accommodation discrimination based on “race, religion, color, national origin, ancestry, sex, sexual orientation, gender identity, spousal affiliation or physical or mental handicap”). Therefore, an African-American could decline to photograph a Ku Klux Klan rally. However, the point is well-taken when the roles in the hypothetical are reversed—a Ku Klux Klan member who operates a photography business as a public accommodation would be compelled to photograph an African-American under the NMHRA. This result is required by the NMHRA, which seeks to promote equal rights and access to public accommodations by prohibiting discrimination based on certain specified protected classifications.

However, adoption of Elane Photography’s argument would allow a photographer who was a Klan member to refuse to photograph an African-American customer’s wedding, graduation, newborn child, or other event if the photographer felt that the photographs would cast African-Americans in a positive light or be interpreted as the photographer’s endorsement of African-Americans. A holding that the First Amendment mandates an exception to public accommodations laws for commercial photographers would license commercial photographers to freely discriminate against any protected class on the basis that the photographer was only exercising his or her right not to express a viewpoint with which he or she disagrees. Such a holding would undermine all of the protections provided by antidiscrimination laws.

The Court makes my point: you can't rationally attack anti-discrimination laws only when they apply to groups particularly important to you. If people want to argue that freedom of speech, or of association, or free exercise of religion means that a business should be able to refuse to provide services to gays and lesbians, then I think they need to be prepared to make the argument that those same rights protect refusal to do business with Jews or African-Americans or any other group you can name.1

The Court also rejected what I think was the photographer's strongest argument: that photography is so inherently artistic that compelling a photographer to work at an event she opposes violates the First Amendment. That was Eugene Volokh's argument, and I think it was a very colorable one, rejected rather too easily by the Court. However, as the Court suggests, it's not an argument that can be rationally limited to sexuality-based objections to work.

Finally, I recommend you read the concurrence by Justice Bosson. It's notable because it so explicitly recognizes that anti-discrimination laws necessarily involve an intrusion into personal belief, and explains — through a history of anti-discrimination law — how we got to that point:

All of which, I assume, is little comfort to the Huguenins [the owners of the photography business], who now are compelled by law to compromise the very religious beliefs that inspire their lives. Though the rule of law requires it, the result is sobering. It will no doubt leave a tangible mark on the Huguenins and others of similar views.

{91} On a larger scale, this case provokes reflection on what this nation is all about, its promise of fairness, liberty, equality of opportunity, and justice. At its heart, this case teaches that at some point in our lives all of us must compromise, if only a little, to accommodate the contrasting values of others. A multicultural, pluralistic society, one of our nation’s strengths, demands no less. The Huguenins are free to think, to say, to believe, as they wish; they may pray to the God of their choice and follow those commandments in their personal lives wherever they lead. The Constitution protects the Huguenins in that respect and much more. But there is a price, one that we all have to pay somewhere in our civic life.

{92} In the smaller, more focused world of the marketplace, of commerce, of public accommodation, the Huguenins have to channel their conduct, not their beliefs, so as to leave space for other Americans who believe something different. That compromise is part of the glue that holds us together as a nation, the tolerance that lubricates the varied moving parts of us as a people. That sense of respect we owe others, whether or not we believe as they do, illuminates this country, setting it apart from the discord that afflicts much of the rest of the world. In short, I would say to the Huguenins, with the utmost respect: it is the price of citizenship. I therefore concur.

Whether or not you agree with Justice Bosson's conclusion, I think it's important that he is explicitly recognizing that these laws — like so many others — involve some sort of intrusion into personal liberty of which we should be aware. You may believe that the intrusion is justified, or you may not, but our discussion of the subject is incomplete and even dishonest without that recognition.

What Kind of Nutter Calls For Censorship?

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When a public official acts like a censorious asshat, and flogs one of my least-favorite stupid pro-censorship quotes, and is named "Nutter," my fundamentally suspicious and misanthropic nature leads me to look around nervously. Am I being Akbarred here? Or is this giddy warmth and pre-pounce quivering anticipation I feel further evidence of a God that loves me?

It's the giddy warmth one.

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Barbra? Barbra Streisand? Never Heard of Her. Now, Back To My Threat.

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Some time ago, one Raphael Golb got in trouble for harassing people about the Dead Sea Scrolls. Everyone, I suppose, needs a hobby. Golb was convicted for actions including sending emails maliciously impersonating Yeshiva University vice provost Lawrence H. Schiffman, creating fake identities and sock puppets to promote his father's research, and generally acting like a dick.

In January Golb's conviction was affirmed. His behavior is odd.

But the behavior of a lawyer purporting to act on his victim's behalf is even odder.

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Mo The Rutabaga Isn't Safe In The U.S., Either

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I've been pretty tough on the United Kingdom recently, what with them arresting people for burning poppies and trying to make Twitter free of offense and threatening U.S. websites and thus-and-such.

But it's only fair to point out that it's not necessarily safe to carry around my rutabaga named Mo here in the United States, either. Courtesy of commenter Trebuchet and Ed Brayton, I discovered Eugene Volokh's testimony to the U.S. Commission on Civil Rights, which offers numerous examples of embarrassing attempts by American academics to suppress speech. They don't call it blasphemy, but they might as well. Volokh's conclusion is apt:

As I said at the outset, I firmly support the free speech, religious freedom, and property rights of Muslims. My concern is simply that all speakers and religious observers be protected, whether they are Muslim or non-Muslim, or pro-Islam or anti-Islam. Nor does this need to be difficult: The government should tell Muslims (as it tells other groups), “We respect you and your rights, and we will defend you and your rights from violence and government oppression, but if you find certain kinds of speech offensive you should respond with speech of your own; we cannot respond by trying to suppress such speech.”

But the government ought not try to define political and religious speech as “discrimination” or “harassment,” and then suppress it in the name of civil rights. Nor should the government conclude that the speech is stripped of protection because it is supposedly constitutes “hate speech”; the Supreme Court’s precedents solidly reject the view that there is a “hate speech” exception to the First Amendment. Nor should it surrender to the threat of violence, a course of action that only encourages more such threats in the future. Instead, the government should protect the civil rights of all, regardless of their religion or ideology.

Some foreign countries, to be sure, do indeed seem to prohibit speech that is perceived as blasphemy or undue criticism of religion — not just Islam but also, for instance, Christianity: Consider, just over the last two years, foreign incidents involving Jesus Christ Superstar, a parody of the venerated Greek Orthodox monk Elder Paisios, mockery of the Bible, and a painting of Jesus with a Mickey Mouse head. But in America, such speech is of course fully protected against government suppression. That must remain so, whatever religion is targeted.

Quite right.

Further Sunday Thoughts On "The Innocence of Muslims" and the Arrest of Nakoula

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A few more thoughts, following up my earlier ones, on the arrest of Sam Bacile aka Nakoula Basseley Nakoula:

1. I do not know what spurred the arrest and questioning of Nakoula. But I do know, as a few news outlets have realized, that federal convicts on supervised release are supervised by probation officers, who are part of U.S. Probation, which is an arm of the United States Courts, not the United States Department of Justice:

Karen Redmond, a spokeswoman for the Administrative Office of the U.S. Courts, said Friday that Nakoula's federal probation was under review.

It is possible that someone in the Obama Administration made a call or leaned on someone in probation, either nationally or in the Central District of California? Yes, it's possible. Evidence, please. If it happened, I'd like to see a Congressional inquiry into it. But probation offices acting on their own upon a high-profile event involving a probationer is common. I suspect some offices have Google alerts set up; I've seen DUI arrests reported in the paper result in almost immediate action by federal probation officers.

2. I disagree completely with the sentiment expressed by Jack Marshall and elsewhere that the Probation Office should have refrained from action to avoid the appearance that the government is retaliating against speech. What separates us from the mob is the rule of law. We shouldn't ignore the rule of law by violating First Amendment principles in what Eugene Volokh correctly points out would be an utterly vain attempt to appease a mob. On the other hand, we shouldn't hinder the rule of law to avoid the appearance of appeasement, either. That's still letting the mob dictate our actions and our adherence to our own laws. "We would normally do X, but we musn't because it might enrage the mob" is just the flip side of "We would normally do X, but we musn't because it might embolden the mob." Both are a sucker's game. The mob's actions are going to be driven by its own culture and by the people manipulating the mob for their own political gain. Jack, and others, seem to be saying that the mob will misunderstand the orderly administration of the law in this instance: but is there really any chance that the mob will ever make an honest attempt to understand, or will care, or that the forces manipulating them will react honestly? Respect the rule of law and fuck 'em if they don't like it.

Also, it's not clear to me what people taking this point of view are suggesting. Should local probation officers make decisions about enforcement of terms of release based on foreign policy considerations? (Surely we'd be upset if the probation officer took foreign policy into account in the other direction, by saying "I have to make sure to start revocation proceedings because this defendant's words are offending mobs and causing violence.") If not, are people really suggesting that the administration should pick up the phone and intervene in the administration of probation in individual federal criminal cases to achieve foreign policy aims?

3. I see a lot of outrage about the optics of a crowd of armed law enforcement officers arresting Nakoula at his home late at night. The word "brownshirts" is being thrown around. If you live in this country and this is the first time you are being moved to say "brownshirts" over law enforcement behavior, you're blind or a partisan hack. In this country we tolerate a vast amount of rank law enforcement thuggery against citizens. We endure it, tolerate it, wink at it in the name of the War on Drugs, in the name of post-9/11 "security," in the name of thinking of our children, in the name of "law and order" and of police being the "thin blue line" between us and anarchy.

If the administration did, in fact, intervene in the supervision of an individual convict's supervised release, that should be the subject of widespread interest and condemnation. But where the hell was this outrage about law enforcement excess before?

4. This subject involves very important questions of free speech and foreign policy. Right now, thanks to the election season, it's being driven by sheer partisan rancor and opportunism by both sides. For the record, I'm voting against Obama and Romney.

Kimberlin Lawfare Update: Major Pushback By Aaron Walker [Now with court documents]

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Note: our prior coverage regarding Team Kimberlin's censorious activities is here.

In our last episode of the struggle against Team Kimberlin — and for free expression without legal harassment — blogger Aaron Walker was muzzled by a Maryland judge who told him to "forget" applicable United States Supreme Court precedent, and had been arrested based on Brett Kimberlin's latest bogus claim of breach of the "peace order" he obtained from a compliant Maryland court.

The tide has turned.

First, Maryland prosecutors declined to prosecute Aaron Walker based on Kimberlin's latest bogus assertion that he'd breached a peace order by blogging.

Second, Aaron Walker — assisted by Maryland counsel Reginald Bours and ridiculously overqualified First Amendment expert Eugene Volokh — has filed an emergency appeal of the latest unconstitutionally overbroad "peace order". I'll try to comment on it next week. I've been kind of busy with comics and Bigfoot and yarn, y'all.

Third, Aaron Walker has filed a federal lawsuit against Brett Kimberlin in United States District Court in Maryland. I've pulled the documents off PACER and hosted them. You can read the complaint here and the motion for a temporary restraining order here. No exhibits — too big, sorry. I will not be commenting on this lawsuit. On several occasions I attempted to assist Mr. Walker in securing local counsel. When I've written about the case I've used other sources and never revealed a confidential communication with him, except as specifically authorized in order to ask for help. However, I feel precluded from discussing his federal case, as opposed to the state court proceedings.

More next week.

Edited to add: changed the motion document to the points and authorities rather than the notice, and redacted addresses from both, even though it's a public document.

Edited June 25 to add: A Montgomery County Circuit Court has granted an emergency motion to permit Walker to resume blogging, at least until a hearing on July 5.

Forgetting Brandenburg And The Rule of Law: Brett Kimberlin Censorship-Through-Lawfare Update

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Last week I wrote about how blogger Aaron Walker was arrested at a hearing on one of Brett Kimberlin's "peace orders" in Maryland. Since then, there have been significant developments to the matter:

1. What happened to Aaron Walker: The day of the arrest, it wasn't clear why Aaron had been arrested — there was speculation that he was arrested on the original peace order, that he was arrested for contempt, that he was arrested on some new peace order, and that he was arrested on Kimberlin's false and manufactured assault allegations. Now it's clearer. It appears that Brett Kimberlin sought a new peace order after Everyone Blog About Brett Kimberlin day and contrived to have Aaron arrested on that when he came to court on May 29th. The order — provided and analyzed by David Hogberg — is shockingly conclusory and vague. Yet even with that vagueness, it's clear that Kimberlin is explicitly seeking to have Aaron prohibited from discussing Kimberlin, and equally clear that a unprincipled and limp judiciary uncritically acquiesced. Kimberlin's filing is also notable for a common theme with his crew: any threats he gets (or that he, a convicted perjurer, claims he got) may be attributed to anyone or everyone who criticized him:

Mr. Walker has tweeted on Twitter about me in alarming and annoying ways over hundreds of times in the past week and urged others to attack me. He has generated hundreds of blog posts directly and indirectly based on false allegations that I framed him for an assault.

Mr. Walker has had many people threaten me directly with death, and told me to stop talking to the police, and not show up in court or I would die.

I've actually read Aaron's blog posts and Twitter comments. None of them urge anyone to "attack" Kimberlin, unless by "attack" you mean "criticize." Moreover, as Lee Stranahan points out, easily available public information shows that Kimberlin lied when he said that Aaron arranged "Blog About Brett Kimberlin Day." A judiciary that was not asleep at the wheel — a judiciary that took its role seriously, particularly when First Amendment rights are at stake — would have demanded to see the particular blog posts and tweets Kimberlin was referencing. But that would have required effort, attention, responsibility, and a vague grasp of the technology that the judges here were ruling upon. Rubber-stamping is much easier.

[Of course, criminal defense attorneys like me will tell you that rubber-stamping is not the exception — it is the rule.]

2. What passed for a hearing: Audio tape of the Walker/Kimberlin hearing has been released, and folks are beginning to create unofficial transcriptions. Patterico has audio, transcriptions, and commentary here. The tape is both deeply familiar to anyone who practices law (especially criminal law) and deeply depressing. The "hearing" was a farce. It was governed not by the rule of law, but by the rule of Judge C.J. Vaughey, two rules that proved rather starkly incompatible. Nowhere is this as stark as when Judge Vaughey says, rather shockingly explicitly, that he doesn't care what the law is, and that Aaron is responsible for anything that anyone does (or might do) based on Aaron's criticism of Kimberlin:

THE COURT: –You’ve decided to battle, and he comes back. And see, you’re — you — you’re the kind of guy, you don’t want to get into this to settle this, mano y mano. You want to get all these friends who got nothing else to do with their time, in this judge’s opinion, because — my God, I’m a little bit older than you are, and I haven’t got enough time in the day to do all the things I want to do. And I thought by retirement, I would have less to do. I got more! Because everybody knows I’m free! So they all come to me. But you, you are starting a — a conflagration, for lack of a better word, and you’re just letting the thing go recklessly no matter where it goes. I mean, you get some — and I’m going to use word I (ph) — freak somewhere up Oklahoma, got nothing better to do with his time, so he does the nastiest things in the world he can do to this poor gentleman. What right has that guy got to do it?

WALKER: He has no right to do that, Your Honor.

THE COURT: Well, he’s — you incited him.

WALKER: But, your honor, I did not incite him within the Brandenburg standard though.

THE COURT: Forget Bradenburg [sic]. Let’s go by Vaughey right now, and common sense out in the world. But you know, where I grew up in Brooklyn, when that stuff was pulled, it was settled real quickly.

WALKER: I’m not sure what that means, your honor.

THE COURT: –Very quickly. And I’m not going to talk about those ways, but boy, it ended fast. I even can tell you, when I grew up in my community, you wanted to date an Italian girl, you had to get the Italian boy’s permission. But that was the old neighborhoods back in the city. And it was really fair. When someone did something up there to you, your sister, your girlfriend, you got some friends to take them for a ride in the back of the truck.

WALKER: Well, Your Honor, what–

THE COURT: –That ended it. You guys have got this new mechanical stuff out here, the electronic stuff, that you can just ruin somebody without doing anything. But you started it.

Brandenbug, as I mentioned in my earlier post, is the United States Supreme Court case that articulates the relevant standard: speech may only be banned on the theory that it is incitement when it is intended to create, and likely to create, a clear and present danger of imminent lawless action. But Honey Vaughey don't give a shit. In his courtroom, he is the law, and he's suspicious of all this new-fangled stuff, and he'll impose any damn standard he wants. And so he forbade an American citizen from writing about a public figure — a convicted domestic terrorist — for the next six months based on that convicted perjurer's vague and undocumented claims that he had suffered threats from unidentified people.

It appears that Judge Vaughey has had a respectable career. Moreover, I am sympathetic to the notion that everyone, including judges, makes mistakes. But I believe that Judge Vaughey's behavior — whether it is based on hostility to free expression and modern technology or merely mundane black-robe fever — is so extreme that it should be his legacy. Judge Vaughey ought to be remembered henceforth as a lawless Luddite indifferent at best, and scornful at worst, to the most fundamental rights Americans possess.

3. This will not stand: People aren't accepting Judge Vaughey's ruling meekly. It will be fought. It will be overcome. First Amendment demigod Eugene Volokh is assisting. I'm doing what modest things I can to round up more help. People are organizing, writing more, defying Kimberlin and his clan.

4. Aaron is not the only target of lawfare by the Kimberlin crew. The Examiner reports that a lawyer named Kevin Zeese — possibly the political activist of the same name — is now threatening Ali A. Akbar of the National Bloggers Club on behalf of "Velvet Underground Revolution," a charity associated with Kimberlin. Zeese's threats will sound familiar to people who follow this blog and read about legal threats calculated to chill speech:

According to Zeese, the information that has been provided by a number of conservative blogs regarding Kimberlin is false, but he would not elaborate what information, specifically, was incorrect.

He was also unwilling to state what threats had been made, and was unwilling to provide any documentation when pressed.

"Get your facts straight," he said repeatedly.

When asked what, specifically, Akbar had done to spur the alleged threats, Zeese again responded by saying people should "get their facts straight."

As I have said repeatedly in the context of many different threats, ambiguity in a legal threat is a hallmark of empty thuggery and bad-faith censorious aims.

Should Mr. Zeese escalate to filing suit — or should his bumptious threats continue — I'll offer Mr. Akbar what I've offered all sorts of bloggers of all political persuasions: I will try to find you pro bono counsel and assist you myself to the extent I can.

[I'm feeling chuffed about the potential value of my own help today; we won another SLAPP motion for a client. Booyah.]

Kimberlin allies have also posted a picture of the home of Akbar's mother, apparently on the justification that one of Mr. Akbar's organizations uses that address in one of its filings. In context, given the connection to a convicted bomber, it's rather clearly intended to terrorize Akbar and his family.

5. Akbar is not the only additional victim. I'm trying to help another blogger faced with particularly despicable lawfare, apparently by Kimberlin allies. I put up the Popehat signal here. I've gotten some responses, but I'm still looking for federal criminal practitioners in the Middle Districts of Florida and Tennessee.

6. I asked people to transcend partisanship on this issue. Some are. Some aren't. There's still a disappointing tendency on the right to frame this as "see why the Left is full of evil people." There's still on the Left either too much silence or too much "lol it's just wingnut hysteria." That's regrettable. But I'm warmed by that support that has come from both sides. Keep it up. Support someone whose views you hate.

Brett Kimberlin and Aaron Worthing: Censorship And Retaliation Through Lawfare

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Despite what you believe, you can be imprisoned in America for writing about public controversies. Aaron Walker — who until recently blogged as Aaron Worthing — found that out today.

I first wrote about Aaron when I sent out the Popehat Signal seeking pro bono help for him in Maryland in connection with his disputes with convicted bomber and perjurer Brett Kimberlin. Much more recently, I wrote about him when he revealed how Kimberlin had pursued him in retaliation for his writing, including making a demonstrably false criminal accusation against him.

After Aaron temporarily prevailed over Kimberlin and told his story, Kimberlin sought, and obtained, a new "peace order" (Maryland law-speak for a restraining order) against Aaron, trying to portray Aaron's protected expression as harassment and threats.

Today Aaron showed up in court in connection with that order, and was taken into custody for violating it — apparently on the grounds that by blogging about Kimberlin's behavior, he had violated the peace order.

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Crystal Cox: Not A Free Speech Advocate

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First of all, remember what I said before: the most important thing you need to know about "blogger" and "investigative journalist" Crystal Cox is that she is the sort of person who will retaliate against a critic by registering a domain in the name of the critic's three-year-old daughter as part of a campaign against him.

But there's something else you should know, too: Crystal Cox is not a sincere supporter of free speech. Crystal Cox is not a defender of the First Amendment. Crystal Cox supports free speech for Crystal Cox, but for her own critics, Crystal Cox is a vigorous (if mostly incoherent) advocate for broad and unprincipled censorship.

This should not surprise us. As I mentioned before, free speech cases often involve defending vile speech by repugnant people. Nearly as often, those repugnant people are no respecters of the rights of anyone else. Do you think the Nazis who marched at Skokie, if they had their way, would uphold the free speech rights of the religious and ethnic minorities who protested them? Do you imagine that Fred Phelps' church, given its choice, would permit the blasphemous and idolatrous freedoms it rails against?

No. We extend constitutional rights to people who, given the opportunity, would not extend the same rights to us. That's how we roll.

Crystal Cox is no different. Eugene Volokh and the Electronic Frontier Foundation are appealing the judgment against her to vindicate (through however flawed a vessel) important free speech issues. But just because Crystal Cox wants free speech for herself, that doesn't mean she supports it for others. In fact, she consistently takes the stance that criticism of her is unlawful and will be met with lawsuits and complaints to state and federal authorities.

Take, for instance, her cross-complaint in the Oregon defamation suit against her. She sued a vast array of people, including all the attorneys in the law firm representing the plaintiff suing her, as well as miscellaneous government entities:

For Complalint against Counter Defendants David Aman, Esq Personally and Professionally, Tonkon Torp Law Firm and all partners, associates and of counsel in their professional and individual capacities, Obsidian Finance LLC and any/all affiliates, Kevin Padrick Esq. officially, professionally and personally, David Brown Esq. professionally and personally, Ewan Rose Esq. officially, professionally and personally, Patrick Flaherty Esq., Bend Oregon District Attorney Office officially, professionally and personally capacities, Deschutes County, Stephanie DeYoung, CPA StudebakerDeYoung CPA PC -Stephanie Studebaker LLP , Mark Neuman, Lane Lyons, Brian Stevens, Tim Larkin, Summit Accomodators Inc. and any and all affiliates, Sean Boushie, Lincoln County Montana District Attorney Bernie Cassidy, P. Stephen Lamont, CEO of iViewit Technologies Inc, Robin Clute Personally and Professionally, and John and Jane Does.

In her Cross-complaint, Crystal Cox asserts that all of these people have engaged in a conspiracy to harass and defame her — by suing her for defamation. Crystal Cox can say whatever she wants about you, but if you say "Crystal Cox defamed me," well, that's illegal:

Plaintif has harmed my Oregon Real Estate Brokerage License by filing a frivolous lawsuit and defaming me among potential real estate clients as I am a licensed real estate broker in the state of oregon.

Writing scores of deranged sites blasting strangers through oddly capitalized screeds is fine when Crystal Cox does it, but if anyone puts up a site that criticizes her, that's a "hate blog" and it's actionable:

Counter Defendant Bernie Cassidy aided and abetted Counter Defendant Sean Boushie to continue on hate blogs, and hate groups, and in conspiracy against counter plaintiff.

Registering domain names incorporating the names of enemies and accusing them of crimes is swell when Crystal Cox does it, but if you try to convince others that she's evil, well, that's actionable too:

Stephen Lamont defamed me in sending emails to all iViewit shareholders to join a hate group against me. This group was and is ran by Sean Boushie of Montana, who claims to this day to be working with David Aman of Tonkon Torp and Kevin Padrick of Obisidian Finance to harm my and financially ruin me.

This pattern repeated in Crystal Cox's motion to exclude a witness. (This witness, a hapless fellow who apparently earned Cox's ire by writing a letter to the editor she didn't like, obtained a restraining order against her; she accused him of a raft of offenses and tried to get a restraining order against him, but was rejected by the court.) Once again, the motion shows Crystal's freakishly narcissistic view of free expression: Crystal Cox can accuse everyone she wants of anything she likes and say any terrible thing about them, but if someone criticizes her in vivid terms, that's "extreme hate, harassment and intimidation" justifying excluding them as a witness.

Finally, consider Crystal Cox's response to the recent attention to her behavior by blogs including this one, not to mention stories at Forbes and the New York Times. Writers, including me, have presented Crystal Cox's own words, her own domain registrations, her own emails, and her own court documents, asked readers to evaluate them, and asserted that they show that Crystal Cox is an evil person who has engaged in what appears to be a campaign of extortion. Crystal Cox crows about her own supposed right to attack strangers on the internet without evidence or reason (or diction, or grammar, or a grasp of reality.) Does she extend that same right to her critics? Of course not. Here's how she plans to respond to her critics:

And now Kashmir Hill of Forbes, David Carr of the New York Times, Marc Randazza, Kenneth P. White of Popehat.com, Tracy Coenen, Randazza Legal Group, have launched a campaign to set up a Blogger for Extortion when I was not accused of Extortion in an Criminal Complaint, nor was I on trial for extortion and now this Lynch Mob has put me under Extreme Duress and ALL will be named in my Federal Hate Crime Filing, Criminal Complaint, Judicial Complaint, FBI Complaint, Attorney General Complaint, Bar Complaint and Department of Justice Complaint.

Crystal Cox is no free speech defender. Crystal Cox is no First Amendment advocate. Crystal Cox is merely that familiar, universally scorned and loathed figure of the playground — the bully who can dish it out, but can't take it.

Every time you think of her, remember: Crystal Cox is someone who will register a domain in the name of the three-year-old daughter of her critic as part of a campaign against him.

"Investigative Journalist" Crystal Cox's Latest Target: An Enemy's Three-Year-Old Daughter

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Here's the most important thing you need to know about blogger and "investigative journalist" Crystal Cox: when she got angry at First Amendment attorney Marc Randazza, she didn't just register the domains marcrandazza.com and fuckmarcrandazza.com and marcrandazzasucks.com in order to attack him. She registered jenniferrandazza.com and nataliarandazza.com — the names of Randazza's wife and three-year-old daughter.

That's Crystal Cox in a nutshell — an appropriate receptacle.

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In Which I Dare Connecticut To Come Get Me. COME AT ME, BRO.

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Dear Members of the Joint Committee on Judiciary of the General Assembly of the State of Connecticut:

My specific intent in writing this post is to annoy and alarm you.

I am posting this communication to you because of the traits and characteristics that I perceive in each of you, and which I firmly believe you possess. I specifically refer to your venality, your sub-normal intelligence, your poor hygiene, your regrettable oafishness, your indifference to your oath of office under your state's constitution ["You do solemnly swear (or affirm, as the case may be) that you will support the constitution of the United States, and the constitution of the state of Connecticut, so long as you continue a citizen thereof; and that you will faithfully discharge, according to law, the duties of the office of………..to the best of your abilities. So help you God."], and your civil, legal, and constitutional illiteracy. It's not clear to me whether these personal traits and characteristics are the result of poor upbringing, bad pruning on the sad Charlie-Brown-Christmas tree that is your genetic lineage, or the quality identified by philosophers and various Omen sequels as Pure Evil. At any rate, your traits and characteristics inspire me to write about you, and are the subject of my discussion, and I spit upon them like so, ptui.

You have no reason to be in physical fear of me, a blogger on the other side of the country. I am not violent and do not believe in visiting violence upon people like you just because you are oathbreaking censorious twunts. Moral and legal issues aside, there are simply too many of you — including other state legislators like you around the country — and it would be exhausting. I prefer to stay on my couch.

However, it is my sincere hope that by writing to you I will achieve the following:

1. That my message will have a substantial and detrimental effect on your mental health, in that I will help you to realize what an embarrassment to the very notion of responsible self-governance you are, and that you have clawed and bit and scrambled and fought to become dim, petty tyrants; and

2. That my message will have the effect of substantially interfering with your participation in, and ability to benefit from, (a) the academic performance of those of you admirably engaged in remedial math or English classes, (b) with the employment in the Assembly of each of you, and (c) with other community activities or responsibilities (giving speeches, opening strip malls, asking your LAs to write your pro-traditional-marriage speeches while you meet your catamites at the Ramada Inn, collecting your Teamster bribes, etc.). I hope that my message will have that effect because it will show you, and your constituents, that you are worthy of only contempt.

3. Most especially, I hope that this message has the impact of causing you substantial embarrassment and humiliation within the professional community, including the legislative community, the legal community, the political community, the business community, the community of functional illiterates who speechify about education, the community of people who work "liberty" and "freedom" into every speech whilst they find new ways to regulate ever aspect of human existence, and the community of people typically viewed by the general public as slightly more palatable than child molesters but definitely less palatable than car thieves, wife beaters, or lawyers.

Why, you ask?

Well, it's because of Connecticut Senate Bill 456. As the Student Press Law Center reports, you — the members of the Connecticut Joint Committee on Judiciary — have referred Bill No. 456, which expands Connecticut's harassment laws in a stupendously ridiculous and unconstitutional way. How stupendous and unconstitutional? Well, so stupendous and unconstitutional that this blog post could be a crime in Connecticut if the rest of the droolers in your General Assembly approve this turd. Under the current version, it would be a crime to do the following:

(a) A person commits electronic harassment when such person, with intent to harass, annoy or alarm another person, transmits, posts, displays or disseminates, by or through an electronic communication device, radio, computer, Internet web site or similar means, to any person, a communication, image or information, which is based on the actual or perceived traits or characteristics of that person, which:
(1) Places that person in reasonable fear of harm to his or her person or property;
(2) Has a substantial and detrimental effect on that person's physical or mental health;
(3) Has the effect of substantially interfering with that person's academic performance, employment or other community activities or
responsibilities;
(4) Has the effect of substantially interfering with that person's ability to participate in or benefit from any academic, professional or community-based services, activities or privileges; or
(5) Has the effect of causing substantial embarrassment or humiliation to that person within an academic or professional community.

The statute helpfully provides that the crime is committed where the communication is sent or where it is received, apparently meaning that you might assert that I have committed a crime in Connecticut by this post even though I write it in California.

You've joined the moronic headlong rush towards "cyberbullying" legislation that tramples of our heritage of free expression in exchange for a few local news headlines. You've drafted a bill that is stupendously overbroad and chilling of all sorts of protected expression. Frankly, it is not even a credible gesture towards complying with the United States or Connecticut Constitutions. If your lawyers wrote it for you, you need to stop hiring lawyers from gas-station bathrooms and the alleys behind methadone clinics. If you had even a minimal grasp of the power you wield — or if you cared — you would recognize that this statute purports to criminalize all sorts of criticism, argument, and satire based not on any objectively threatening nature, but on the whiny subjective butthurt of the disagreed-with. I'm guessing you'd say you're thinking of the children. But our children are not helped by teaching them to be bad citizens, by teaching them they should look to government for redress when people hurt their feelings, or by steadily weakening their Constitutional heritage in the name of fashionable concerns.

In summary: you are ignorant censorious tools. If your Joint Committee on the Judiciary passes this bill along in anything close to this form, its members should consider this post directed to them all. If the entire General Assembly approves it, it is directed to them as well. If the Governor signs it, he's on the list as well. I will republish the post when the law becomes effective.

Perhaps some of you, members of the Joint Committee on Judiciary, spoke up about this bill. However, so far as I can tell, there's no record of it, and your state does not see fit to attribute the bill to any particular member. At any rate, if your reaction to this bill was anything but immediate denunciation, consider this directed at you as well.

In closing, snort my taint,

Ken

Edited 3/30: Or, sure, you could discuss this in a polite manner like First Amendment demigod Eugene Volokh. I mean, if that's your thing. He's a busy professor, he probably doesn't have time to be extradited to Connecticut.