Remember Joseph Rakofsky? He's the brand-new lawyer who thought it was prudent and appropriate to attempt, as his first trial, the defense of a man accused of murder. Havoc ensued. A federal judge granted Rakofsky's request to withdraw, which coincided with the defendant's request for a new lawyer, and granted a mistrial. In doing so the judge said that in the alternative he would have granted a new trial based on Rakofsky's incompetence:

I must say that even when I acquired [sic -- probably "inquired of"] Mr. Deaner [the defendant], I — as to whether or not, when the Court found out through opening, at least near end of the opening statement, which went on at some length for over an hour, that Mr. Rakofsky had never tried a case before. And, quite frankly, it was evident, in portions of the trial that I saw, that Mr. Rakofsky — put it this way: I was astonished that someone would purport to represent someone in a felony murder case who had never tried a case before and that local counsel, Mr. Grigsby, was complicit in this.

It appeared to the Court that there were theories out there defense theories out there, but the inability to execute those theories. It was apparent to Court that there was a — not a good grasp of legal principles and legal procedure of what was admissible and what was not admissible that inured, I think, to t detriment of Mr. Deaner. And had there been — If there had been a conviction in this case, based on what I had seen so far, I would have granted a motion for a new trial under 23.110.

So I am going to grant Mr. Deaner's request for new counsel. I believe both – it is a choice that he has knowingly and intelligently made and he understood that it's a waiver of his rights. Alternatively, I would find that they are based on my observation of the conduct of the trial manifest necessity. I believe that the performance was below what any reasonable perrson could expect in a murder trial.

And later in that hearing . . .

And I think that the – As I said, it became readily apparent that the performance was not up to par under any reasonable standard of competence under the Sixth Amendment.

This was widely reported, resulting in Rakofsky suing a ridiculous array of news outlets and lawbloggers, and stubbornly pursuing those claims in what became known as "Rakofsky versus the Internet."

Last week he lost — a judge granted motions to dismiss his case. That represented two major victories last week for Marc Randazza, who not only represented many lawbloggers in Rakofsky's case, but also crushed infamous copyright troll Righthaven on appeal. This will not make him any easier to live with.

Rakofsky's lead argument was that he was defamed because his detractors reported that a judge had declared a mistrial based on his incompetence, when in fact the judge had declared a mistrial based on the defendant's request and had only said that in the alternative he would have granted a mistrial based on Rakofsky's incompetence. The correct rejection of this argument is a good example of the substantial truth doctrine, also known as the "gist" or "sting of it" doctrine — the rule that says that a statement isn't defamatory if the main insulting thrust of it is true. So, if you accuse me of molesting squirrels in a public park, and I sue you for defamation on the grounds that my companion was a chipmunk and I was in the storm drain adjacent to the park, my defamation suit against you should not survive. (Unless, I suppose, we live in a community where squirrels are held in high esteem but chipmunks are generally despised.) Here, it was patently ridiculous for Rakofksy to maintain that the "mistrial resulting from incompetence" story was meaningfully misleading or false. The trial judge was brutally frank in his evaluation of Rakofsky's ability, and trial judges don't just go around letting defendants change lawyers mid-trial for no reason.

There are a few lessons to learn from this regrettable affair.

1. Our legal system is so broken that it can take years to resolve even the most patently vexatious, harassing, and incompetently prosecuted lawsuits like this one.

2. Rakofsky doubled down. Had he slunk away after his grave error in judgment, giving thanks that his rashness did not lead to someone being convicted, he might have learned the trade, become a competent lawyer, and overcome a brief flurry of bad publicity. Instead, he chose to file a vexatious lawsuit. Now he belongs to the ages. He will never, in the half a century he has left to him, live this down.

3. Yielding to censorious thuggery like Rakofsky's is harmful to your reputation. Cowardly and unprincipled University of St. Thomas School of Law, I'm looking at you. You yielded to a frivolous suit and taught your students and alumni a terrible lesson about being a lawyer and a citizen. You encouraged vexatious and speech-chilling litigation. Let your cringing suckitude be proclaimed throughout the land.

4. Judge Wright's photon torpedo salvo notwithstanding, most judges are reluctant to award sanctions even against conduct that richly deserves it. Here the judge declined to award sanctions against Rakofksy. I'm inclined to agree with Scott that Rakofsky's youth, inexperience, and nationwide humiliation probably stayed the judge's sanctioning hand.

5. If you want the law to be an instrument of self-actualization, start a blog. Law practice — the profession of providing services to clients who need you — is not your personal voyage of self-discovery and empowerment. If you practice as a lawyer, you owe it to your clients only to do the things you are competent to do. Embarking on the defense of a man accused of murder as your first trial is a moral and ethical outrage. Regrettably, the profession is barraged with eager voices telling us that attracting clients with puffery and keywords and Twitter accounts is the way to build a practice. Nobody's reminding us that you have an obligation to know what you're doing before you accept the client. Somebody should.

The Streisand Effect is one possible bad consequence of a legal threat designed to remove content from the internet.

But it's not the only possible bad consequence.

Battlefoam makes storage containers for miniatures used in wargaming. If you don't know what that means already you'll just be irritated if you try to find out, so don't bother. Battlefoam's exec Romeo Filip was angry at some things someone wrote at a site called The Blood of Kittens Network. That site is "devoted to spreading a heritical understanding of the Warhammer 40k universe to neophytes and devotees alike." Again, if you don't know what that means, you very likely don't want to know. Just nod your head and move along.

Anyway, Battlefoam and Filip got some Arizona lawyers to write a very blustery cease and desist letter. It's not the worst cease-and-desist I've ever seen — it does some things to avoid the Streisand Effect, like specifying particular statements that Battlefoam thinks are false — but its language and demands are extravagant. It also offers a short drop-dead date for capitulation.

Lawyers offer short deadlines hoping to convey seriousness and determination. Sometimes it works. Other times, it conveys "there's no point in negotiating with these people."

As followers of The Oatmeal saga will recall, a subject of blustering legal threats need not stay on the defensive; there are offensive options as well. That's exactly the approach Blood of Kittens and its owner, Nicolas Hayden, took. They siezed the initiative and filed a strong declaratory relief action in Northern California, seeking a court determination that the posts about Battlefoam and Filip are protected by the First Amendment. They are being represented pro bono by First Amendment badass Marc Randazza and his colleague Gil Sperlein, also a notable First Amendment practitioner.

Now, unless Battlefoam can get the action dismissed or moved, Blood of Kittens has chosen the forum, the time, and the framework of the litigation, and is represented by two exceptional First Amendment practitioners.

Had Battlefoam's lawyers written a less blustery, less demanding letter, this might not have happened. They could have written a polite but firm letter saying they wanted to discuss resolution of concerns about false statements. They could have avoided purple prose and demands for things they could never get in court. Then Hayden might not have been able to attract two of the nation's best defamation defense attorneys to work for him for free. He might not have attracted anyone to file a declaratory relief suit, and indeed the grounds for such a suit (the clearly presented immediate controversy) might have been unclear.

But Battlefoam's lawyers decided to please their client with a take that type of letter.

Hey guys. Was it worth it?

Edited to add: Thanks to a commenter, I see that Romeo Filip did a podcast yesterday. At about the 60 minute mark he talks at length about the litigation, demonstrating that he doesn't understand declaratory relief, attorney fees, or the law. Plus, in a case in which he says it is defamatory to say he physically assaults critics, he shrewdly jokes (Kind of — I think) about punching critics in the face. Genius. Sheer genius. I presume his attorneys didn't know he was making their job so much more difficult. If he has meritorious claims — if Blood of Kittens posted false statements of fact with the requisite intent — he just significantly reduced his chance of winning. Clients.

Late last year I wrote about the vile humiliation-porn and extortion website "Is Anybody Down?" and its thoroughly creepy and sociopathic founders Craig Brittain and Chance Trahan. I wrote about how they engaged in a mail and wire fraud scheme by inventing a fake lawyer "David Blade III" to whom victims could pay to have their pictures and information taken down, and how Craig Brittain — who fancies himself a champion of free speech — tried to abuse the DMCA to get posts about him taken down. My posts on the subject are collected here.

I haven't written about them since them, but they've remained in the news. Adam Steinbaugh has been doing good work keeping track of them. Craig Brittain has been on a sort of national douchebag tour, showing up on blogs all over and television and newspapers. Trahan, by contrast, has been trying to distance himself from the whole enterprise and, so far as I can tell, set up a "not competent to stand trial" strategy. Civil and criminal disputes are generally not settled by freestyle rap battles.

Some have been frustrated by the fact that, aside from infamy and the ugly reality of living every day as themselves, Brittain and Trahan seem to have escaped consequences to date. People frustrated by that aren't used to the law's delay. The wheels grind slowly, but my friends, they do grind.

Civil attorneys are gathering and interacting with victims. Meanwhile, CBS Denver reports that the federal government has taken an interest.

Last week, a staff attorney for the federal agency contacted CBS4 with numerous questions about the CBS4 investigation. She characterized the inquiry as a “preliminary investigation” and asked that her name and agency not be revealed until a decision had been made on whether to go forward with a full blown federal investigation.

. . . .

“It’s not good for him,” she said of her agency’s interest in Brittain’s Internet activities. She said if her agency presses forward, they would likely seek “injunctive relief” to take down the website, but she conceded that would likely take months.

From that information, based on my experience, I suspect that the agency in question is the Federal Trade Commission. You might be disappointed that it's not a local United States Attorney's Office pursuing criminal charges. Don't be. First of all, a civil suit by the FTC is often the vanguard of a later criminal investigation by the local U.S. Attorney's Office. Second — and this is a Very Bad Thing not just for Brittain and Trahan, but for American justice — FTC lawsuits tend to yield the most grotesque parody of due process you're likely to see in a federal civil proceeding. As I've said before, I haven't seen any criminal clients — even ones accused of terrible things — screwed the way people targeted by the FTC get screwed. Typical consequences include draconian preliminary injunctions issued based on half-assed government requests, global asset freezes, and offensively perfunctory proceedings. Plus, federal and state criminal authorities wait in the wings to glean what they can from the information produced in the case.

So: the wheels are grinding. Watch them grind. Do Brittain and Trahan "deserve" it? Everyone accused of wrongdoing deserves due process. But in deciding how to feel about this, consider Adam Steinbaugh's latest post, in which he examines the allegations in a restraining order proceeding against Brittain back in 2005:

According to records provided by a Colorado court, Brittain’s ex-girlfriend (who I am not naming) alleged that after she broke up with him online, Brittain took control of one of her Yahoo accounts and began posting her phone number and address in a chat room, suggesting sexual acts. At about 7 in the morning, a man Brittain’s ex did not know, identifying himself as “Nate,” showed up at her door. ”Nate” explained that he had talked with someone he thought was Brittain’s ex-girlfriend an hour earlier. Presumably, “Nate” was not there to have breakfast.

In early November I put up the Popehat Signal seeking help for a blogger and anonymous commenters sued in connection with their statements about a rape case in Ohio. Many people figured out that I was talking about a rape prosecution involving members of a high school football team in Steubenville, Ohio, and a defamation suit brought by a teen named Cody Saltzman and his parents. The rape case, the defamation case, and the controversy surrounding them have now been covered in the New York Times.

I'm happy to report a good result made possible by the contributions of dedicated lawyers.

Alexandria Goddard, who blogs at Prinnified and was the lead defendant in the defamation case, reports that the case has been settled as to all parties and will be dismissed.

On behalf of myself and the John Doe defendants, we are very pleased to announce that the defamation lawsuit filed against us has been dismissed with prejudice. Dismissals with prejudice mean that this case can never be refiled again and this lawsuit is officially over. On December 20th, the plaintiffs approached us about settling this case, and we were quite happy to oblige. Lawsuits are costly and very stressful, and this suit has taken a toll on all involved. As part of the settlement we did not pay any money; we did not agree to retract any statements, nor did we agree to stop covering the case or discussing it.

Goddard offers a clarification that Prinnified never had any information that Saltzman took part in the rape alleged in the criminal case, and Saltzman offers an apology for his repulsive social media coverage of his classmates mauling a drunk child.

This is a tremendous victory for Goddard, for the anonymous commenters, and for free speech values. Congratulations and admiration are due to the following:

Jeffrey M. Nye and Thomas G. Haren were among the first to respond to the Popehat signal and quickly took up Goddard's defense. They were ably assisted by my friend and colleague Marc Randazza, who is familiar around these parts.

Paul Alan Levy of Public Citizen, another Popehat friend, stepped up to assist some of the anonymous commenters sued in the case and quickly secured dismissals against them.

The ACLU of Ohio, through attorney Scott Greenwood, stepped in to assist additional anonymous commenters in the case.

In addition, many additional attorneys and citizens wrote in response to the Popehat Signal offering to help.

A few thoughts and observations:

1. If the purpose of the defamation suit was to protect the reputation of Cody Saltzman and his parents, it was a catastrophic error in judgment. The suit invoked the Streisand Effect in full force and was very likely the catalyst that drew the attention of both the New York Times and (in more troubling fashion) hackers under the Anonymous banner.

2. Ohio doesn't have an anti-SLAPP statute. Nor do many states. Others have woefully deficient anti-SLAPP statutes. Goddard and the commenters here were very fortunate to get swift and highly effective pro bono help, without which they faced lengthy and ruinously expensive litigation. Most defendants in censorious defamation suits are not so fortunate. What can you do? You can lobby for effective anti-SLAPP laws in your state, lobby for a federal anti-SLAPP statute (various versions have been kicking around Congress for years), and help to publicize calls for pro bono counsel in cases like this one. As it stands, in states without effective anti-SLAPP statutes, the legal system does not prevent or deter censorship by lawsuit.

3. The First Amendment protects a very broad range of commentary about the Steubenville rape case and its participants. However, when it comes to government action, the accused — as well as the other young men who were not charged — are entitled to due process of law. Period. They are not less entitled to due process because you're horrified by what they are accused of, or because of allegations that they are being protected by corrupt locals. Supporting due process of law for people accused of despicable crimes is a civic value just as important as supporting freedom of expression for people whose speech infuriates you. Degrading one value tends naturally to degrade the other.

It's time for Popehat's Second Annual "Censorious Asshat of the Year" poll.

The rules of eligibility are arbitrary and capricious, but here are a few: (1) it has to be someone we've written about, (2) it has to be someone whose censorious behavior has a certain spark that elevates it above the mundane, and (3) it can't involve someone I represented, or for that matter anyone currently threatening to report me to the U.N. for hate crimes or whatever.

Here, in reverse chronological order, are the candidates.

Robert Alistair McAlpine, Baron McAlpine of West Green, who reacted to a false and vile news report by threatening not only the network that issued the report, but people who who merely repeated it on Twitter. In Aggravation: Had his attorneys issue Maoist self-criticism forms and suggest that anyone who mentioned the story should fill them out. In Mitigation: Was genuinely wronged by incompetent BBC reporting.

Matthew Overstreet of Casey Movers, who immolated his company's brand with foolish defamation threats against a bad Yelp review. In Aggravation: expressly bragged about dragging someone to a distant court. In Mitigation: He's obscure, pitiful, and has largely retreated.

Craig Brittain of "Is Anybody Down?", who used a frivolous and barely coherent DMCA notice to try to censor Popehat posts about his vile fraud scheme. In Aggravation: A thoroughly despicable fraudster and purveyor of involuntary porn designed to abuse and humiliate. In Mitigation: None.

The Reading University Student Union and its leaders Kara Swift, Kath Davey, Richard Silcock, and Ceri Jones, for pursuing disciplinary proceedings against a student group for displaying a pineapple named Mohammed, on the grounds it caused offense. Sorry, "Offence." In Aggravation: Betraying a proud heritage, contributing substantively to the decline of Western Civilization in favor of an imagined right not to be offended. In Mitigation: They very likely have never been taught any better.

Attorney Charles Carreon, who in an ongoing saga this year sent a bumptious and frivolous defamation threat to a popular webcomic, and when met with ridicule and satire, retaliated with frivolous federal litigation seeking to interfere with a charitable campaign that offended him. Also threatened a blogger for satirizing him and wrote to that blogger's employer. In Aggravation: Purports to be an internet lawyer and a defender of freedom, despite having no apparent grasp of the internet and an abiding hatred of freedom. In Mitigation: It's rubble-bouncing at this point, and his asshattery resulted in major donations to good causes.

Larry Bodine of Lawyers.com, who reported lawyers to Twitter for spamming when they used a marketing hashtag to comment on a vapid legal marketing event. In Aggravation: He and his ilk are making the legal profession, no bed of roses to begin with, measurably more awful. In Mitigation: It seems as if this was a passing fancy between feckless eructations of marketing-gibberish rather than a long-term thing.

The University of California's Advisory Council on Campus Climate, Culture, and Inclusion, which issued a broad-based recommendation for patently unconstitutional campus hate speech laws, addressing the First Amendment issues with an imperial hand-wave: “The Team recognizes that changes to UC hate speech policies may result in legal challenge, but offer [sic] that UC accept the challenge.” In Aggravation: By example, teaching university students to be stupider and more censorious. In Mitigation: Irrelevant, even for a university advisory committee.

John Rocker, brought in to WorldNetDaily to add gravitas, who offered a nearly perfect articulation of the ridiculous viewpoint that criticizing someone is a form of censorship, a long-standing Popehat bugaboo. In Aggravation: He's being a dick about people being a dick about people being a dick, and the recursion is giving me a headache. In Mitigation: Who?

Boston Mayor Thomas Menino, for threatening — albeit briefly — to bar Chick-Fil-A from Boston because its owners have regrettable views on gays and gay marriage. In Aggravation: Overtly threatened abuse of government power. In Mitigation: A born politician, he doesn't mean anything he says, and likely lacks the ability to govern his words or actions.

Sinclair Community College President Steven L. Johnson, for explaining that protesters at his state-run school are prohibited from using protest signs because of 9/11 and Virginia Tech. In Aggravation: Invoking the name of honored dead to suggest Americans should cower at the prospect of misspelled and poorly thought-out signs about Veganism and capitalist pigs or something. In Mitigation: After prolonged exposure to the academic environment, incapable of thinking like a normal person.

The Olympic Establishment, for pestering and insulting knitters and policing the pronouncements of publicans, purportedly in an effort to wring every last drop of lucre out of human athletic achievement. In Aggravation: Don't mess with fries, fuckers. In Mitigation: If we'd turn the damn TV off and stop buying the geegaws, they'd stop.

Raanan Katz, who is remarkably photogenic if you find Jabba the Hutt alluring, embarked on a legal campaign against people publishing his picture and writing about him, including saying that pointing to the alleged defamatory blogs might itself be defamation and arguing that representing people he's suing is itself actionable. In Aggravation: He thinks his money ought to make him immune to criticism. In Mitigation: He seems really quite sensitive. There should be some kind of program for that.

Berkeley Chief of Police Michael K. Meehan, who disagreed with a story written about his department, and so sent a police officer to the home of the journalist at 12:45 a.m. to ask that it be changed. In Aggravation: That's some straight-up stone-cold thuggery. In Mitigation: the article apparently hurt his feelings; it's possible that in Berkeley that's against the law.

Brett Kimberlin, a convicted perjurer and bomber who abused the justice system by seeking and obtaining "peace orders" prohibiting blogger Aaron Walker from writing about him, a legal atrocity that was only overturned with great effort. In Aggravation: Kimberlin engaged in a campaign of bombing terror, wounded a man so badly that he later took his own life, laughed off the judgment against him for years, and now thinks that the law should prevent people from writing about him. In Mitigation: Nothing. Not a damn thing. Nothing at all. Except this. Maybe.

The Lincolnshire Police, who threatened John Richards with arrest if he did not take down a letter-sized piece of paper in his window bearing the slogan "religions are fairy stories for adults." Because feelings! In Aggravation: Part of the vanguard of the sad decline of a great culture. In Mitigation: Would no doubt have been extremely polite and gentle in arresting Mr. Richards for that mean piece of paper.

The Legislatures of Arizona and Connecticut, both of which toyed with trend-humping, foolish, overbroad, and badly drafted "cyberbullying" legislation in an effort to prevent people from being mean on the internet. In Aggravation: They took oaths of office to uphold the Constitution. In Mitigation: Nobody expects them to keep those oaths.

Here is the poll. One vote only. The poll closes midnight on the 31st.

[poll id="4"]

Back in June I wrote about Raanan Katz, one of the owners of the Miami Heat, and his legal crusade to stop people from being mean to him. I started by talking about his efforts to sue people for merely posting an unflattering picture of him, and finished with his lawyers' threats to sue Marc Randazza and his co-counsel merely for representing Katz' adversaries.

I have an update. It is this: sometimes, in court as in life, the bad guys win.

Recently Raanan Katz secured a jaw-droppingly ridiculous injunction from a compliant Florida judge against one of his adversaries. Marc Randazza and his co-counsel in the matter, Darren Spielman and Robert Kain, had argued quite persuasively that the injunction Katz sought would constitute lawless prior restraint prohibited by decades of precedent and the First Amendment. But Miami-Dade County judge Ellen Leesfield disagreed and issued a broad prior restraint injunction containing very little analysis.

Parts of the injunction might be defensible — for instance, to the extent it prohibits the defendants from trespass on Katz' property or coming near him or his family. But other parts are astoundingly broad and vague:

2. Defendants, IRINA CHEVALDINA, DMITRI CHEVALDINE, JOHN DOE, and all others acting by them, through them, with them, or on their behalf, are enjoined from directly or indirectly interfering in person, orally, in written form or via any blogs or other material posted on the internet or in any media with Plaintiffs' advantageous or contractual business relationships.

Now, the torts of interference with contract or with advantageous business relationships have specific elements and previously defined meanings, and there is caselaw discussing the interplay of the torts with the First Amendment. But framed this way, the injunction is impossibly vague: it forces the defendants to guess in advance at whether their speech will later be deemed by the court as an unprivileged interference with contract or business advantage. Given the deranged and entitled aggression of Katz and his attorneys to date, it seems likely that any criticism of him the defendants post may yield a motion to hold them in contempt of court. Also, the "all others acting by them, through them, with them, or on their behalf" extends the chilling threat to others not even named in the lawsuit. Does the injunction prohibit friends, family, supporters from writing critically about Katz? They are left to guess.

3. Defendants, IRINA CHEVALDINA, DMITRI CHEVALDINE, JOHN DOE, and all others acting by them, through them, with them, or on their behalf, are enjoined from directly or indirectly publishing any blogs or any other written or spoken matter calculated to defame, tortiously interfere with, invade the privacy of, or otherwise cause harm to Plaintiffs.

Once again, this term requires the defendants to guess in advance how any criticism of Katz will later be interpreted — whether it will be seen as defamation, tortious interference, or invasion of privacy. The "otherwise cause harm" kicker at the end transforms it to merely vague and overbroad into the realm of self-parody — plainly read, it suggests that the court has prohibited defendants and some ambiguous category of third persons from saying anything that hurts Katz's fee-fees.

As I said, Judge Leesfield offered barely any analysis in support of this broad prior restraint on the speech of the defendants and unidentified third parties:

This Court has broad discretion to enter injunctive relief, which may include enjoining defamation that is accompanied by other torts. See, e.g., Zimmerman v. D.C.A .. at Welleby, Inc. 505 So. 2d 1371, 1375 (Fla. 4th DCA 1987); Murtagh v. Hurley, 40 So. 3d 62 (Fla. 2d DCA 2010); Azar v. Lehigh Corporation, 364 So. 2d 860, 862 (Fla. 2d DCA 1978); DeRitis v. AHZ Corporation, 444 So. 2d 93 (Fla. 4th DCA 1984).

Those cases simply don't support such a broad injunction. In Zimmerman the court specifically rejected a requested injunction to the extent it sought to enjoin picketing and displaying signs in opposition to a condominium developer, and only approved the injunction to the extent it prohibited specific speech not protected by the First Amendment. Azar upheld a temporary restraining order based on a finding that it was sufficiently specific because it very particularly explained whom the defendant could not contact, and under what circumstances. In DeRitis, the Court of Appeal remanded an injunction drafted much like this one with instructions to make it more specific — and that case involved a business competitor, not an outside critic: "Such an order should be confined within reasonable limitations and phrased in such language that it can with definiteness be complied with, and one against whom the order is directed should not be left in doubt as to what he is required to do."

I often say here that vagueness in a threat of a defamation suit is the hallmark of meritless thuggery. Vagueness in a judicial opinion prohibiting speech is worse — it is the hallmark of judicial indifference to the First Amendment, either calculated to chill protected speech or negligently heedless of its tendency to chill speech. The injunction does not reflect any serious effort to comply with applicable precedent or the First Amendment.

Judging from his litigation strategy, Raanan Katz appears to be someone who thinks that his wealth should insulate him from the criticisms and rebukes that we lesser mortals must endure in America. He's got lawyers willing to pursue that theory on his behalf. In facing off against such people, there will often be setbacks, as reflected in this highly dubious injunction. The remedies are the same as they have always been: appeal, hope that a higher court will hew more closely to applicable precedent and constitutional rights . . . and speak more. Keep writing and talking about Raanan Katz's litigation campaign.

Of course, when you do so, you take certain risks. Raanan Katz and his attorneys — people who think they ought to be able to sue lawyers merely for representing his adversaries — might decide that you are acting "on behalf of" the defendants, and that therefore you are prohibited by law from "otherwise caus[ing] harm" to Katz. Since Katz seems to suffer from a very tender and easily bruised self-regard, such harm is very difficult to avoid. And how will a judge who issued such a broad and unprincipled injunction react if you are hauled before her? That might chill you — which is exactly what Katz, and perhaps the judge, want. What will you do about it?

Updated to add: I missed some of the most preposterous language of the injunction:

The Court, having reviewed the file, heard argument of counsel, considered limited testimony, admitted evidence, and being otherwise duly advised in the premises, makes no findings of facts as to actual violations of law by the Defendants, except that the Defendants have blogged extensively about the Plaintiff and many of these blogs are arguably defamatory. Although ultimately a defamation trial will be held, this Court ORDERS the Defendants not to enter defamatory blogs in the future.

Like last year, Popehat has made the ABA Journal's Blawg 100, this time in the News/Analysis category.

It's clear that they still don't quite know what to make of us:

For a blog named after the pontiff’s headgear, Popehat sure is irreverent. A group blog devoted to—among many other things—First Amendment rights, Popehat was established back in 2005. Although it doesn’t necessarily consider itself a law blog so much as a geek blog, its members are quite active in the online legal community.

We'll likely be crushed by heavyweights like Above the Law and Volokh and Turley and Randazza, all of whom are deserving. But if you feel like it, drop us a vote anyway.

1. I've now collected all my posts about the vile site "Is Anybody Down?" and its sociopathic proprietors Craig Brittain and Chance Trahan under the tag Is Anybody Down?.

2. If you are new to the investigation, Adam Steinbaugh has a good summary of what's going on — which includes not just involuntary humiliation porn, but wire fraud — at this post.

3. Craig and Chance are now resorting to legal threats. One of them — probably Craig — has left two identical threats here, as well as at Adam's blog, on Wikipedia, and on a satirical video by Captain Obvious:

Be advised that these actions, your slander and screen shots can and will be used as key factors should a case be pursued against you. Your posting, advertising, marketing, dissipating and otherwise disseminating the slanderous materials constitute actionable violations of Mr. Trahan and Mr Brittain's rights of privacy and publicity.

This is a notably, remarkably stupid comment, even for an Internet Lawyer. First, slander is verbal; libel is written. Second, "be advised" is a reliable tell of an empty threat. Third, nobody is "marketing" anything; that sounds like an attempt to fabricate a copyright claim. All criticisms are non-commercial, making all quotes and screenshots fair use. Fourth, you gravel-knuckled troglodyte, you mean disseminating, not dissipating, and that word's already in the sentence. Fifth, Trahan and Brittain have no privacy or publicity rights to be free of criticism or satire, however popular that approach is to would-be censors.

4. Any victims — including people posted on "Is Anybody Down?", but especially victims who were defrauded into paying money into the imaginary "David Blade" — are still welcome to contact me or Marc Randazza, and we will continue to connect you with law enforcement and attorneys in your jurisdiction.

5. A few people have asked me what I mean when I say that the "David Blade" scam constitutes federal wire fraud. Here's what I mean. The federal wire fraud statute provides:

Whoever, having devised or intending to devise any scheme or artifice to defraud, or for obtaining money or property by means of false or fraudulent pretenses, representations, or promises, transmits or causes to be transmitted by means of wire, radio, or television communication in interstate or foreign commerce, any writings, signs, signals, pictures, or sounds for the purpose of executing such scheme or artifice, shall be fined under this title or imprisoned not more than 20 years, or both.

The elements of wire fraud — that is, the facts that the government must prove to secure a conviction — are these:

United States v. Profit, 49 F.3d 404, 406 n. 1 (8th Cir.) (the four essential elements of the crime of wire fraud are: (1) that the defendant voluntarily and intentionally devised or participated in a scheme to defraud another out of money; (2) that the defendant did so with the intent to defraud; (3) that it was reasonably foreseeable that interstate wire communications would be used; and (4) that interstate wire communications were in fact used)

Here, the evidence set forth in Marc Randazza's posts, the posts here, and Adam's posts suggest the following: the proprietors of "Is Anybody Down?" devised a scheme in which they would post naked pictures and personal contact information of both women and men. They then posted advertisements by "David Blade," who was promoted as an independent lawyer who would represent the victims and get posts taken down. In truth and fact, "David Blade" does not exist; he is a persona created by and operated by the proprietors of the site as part of the scheme to get people to pay him under false pretenses. He is not independent, he is not a lawyer, and he is not working for his victim "clients"; he is purely an invention to get them to pay money to get their pictures taken down on the pretense that he is rendering independent services. The proprietors of the site promoted this view not only by operating the "David Blade" persona, but by publishing and ridiculing takedown requests and demands sent directly to them. "David Blade" did, in fact, collect money from victims. Multiple parts of the scheme — including the web posts, the communications with victims, and the payments — forseeably used interstate wire communications. Now that the proprietors of the site have abandoned the David Blade persona and changed "The Takedown Lawyer" to the "Takedown Hammer," they are simply extending the fraud scheme by slightly different means, as they are still advertising that "our independent third party team can issue a successful content removal request on your behalf, guaranteeing that your content will be removed ASAP," when in truth and in fact "The Takedown Hammer" is not an independent third party team at all, but is another persona of the "Is Anybody Down?" site.

That's wire fraud. It's also a violation of fraud statutes in every state from which victims have paid "David Blade."

Last week I introduced you to Marc Randazza's investigation of fraud and extortion by "Is Anybody Down?" and imaginary lawyer "David Blade III", discussed how Craig Brittain, owner of "Is Anybody Down?", couldn't keep his story straight about whether Blade existed or who he is, and made a clearly pointless appeal to the humanity of Craig Brittain and his partner Chance Trahan.

Craig updated his "trolldown" blog with an attack on me, which featured the sort of at-length paean to sociopathy you'd get if you went to a Team Fortress forum, picked the user with the most scatalogical and racist username, withheld his medication for 48 hours, and asked him to explain his personal philosophy.

But that's not all. Craig also tried to get the three posts about him on Popehat taken down by sending a bogus DMCA takedown notice to our host, Dreamhost. I've been a little mad at Dreamhost recently because of some outages, but I'm very happy with their response to this, which gives me confidence they will handle it correctly. They've recognized that's the notice is defective and they're not requiring a counter-notice from me yet — though I'd enjoy writing one.

Here, without further ado, is Craig's notice. I've only changed it to remove his home address and phone number. Comments after.

Received: 2012-11-03 01:14:01 from Is Anybody Down to DreamHost Abuse

November 3rd, 2012
Notification of Claimed Copyright Infringement (Digital Millennium Copyright Act, 17 U.S.C. § 512.)

To: Dreamhost.com/Abuse/Whom It May Concern Dear Sir or Madam, I, Craig R. Brittain, swear under penalty of perjury that I have been authorized to act as the non-exclusive agent for copyright infringement notifications for the undersigned parties (see
name(s) of copyright holder(s)). I have detected infringements of my accounts copyright interests on a website hosted by GoDaddy.com as detailed in the reports below.

1. Name(s) of copyright holder(s):
Craig R. Brittain/Is Anybody Down/isanybodydown.com/Chance Trahan/Kataishin.com/Trolldown.com/TakedownLawyer.com/TakedownHammer.com
2. Name of person authorized to act on behalf of copyright holder(s):
Craig R. Brittain
3. Identify the copyrighted work claimed to have been infringed:

http://www.popehat.com/2012/11/02/my-dinner-with-chance/

http://www.popehat.com/2012/10/31/craig-brittain-of-is-anybody-down-cant-keep-his-story-straight-and-its-barack-obamas-fault/

http://www.popehat.com/2012/10/30/the-takedown-lawyer-lets-help-marc-randazza-investigate-a-scammer-shall-we/

4. Include a representative list of such works at that site:
Numerous text excerpts from various websites owned by Craig R.
Brittain/Chance Trahan as well as various pictures.

http://www.popehat.com/wp-content/uploads/2012/10/Blade-Ad.png

http://www.popehat.com/wp-content/uploads/2012/10/correspondence-with-22david-blade22.pdf

http://www.popehat.com/wp-content/uploads/2012/10/Craig-Brittain-Felony-Record.pdf

http://www.popehat.com/wp-content/uploads/2012/11/ChanceTrahan-480×562.png

5. Identification of the material that is claimed to be infringing or to be the subject of infringing activity that is to be removed or access to which is to be disabled:
The posts and images above contain personal information which is owned and copyrighted by its respective copyright owners and is damaging in nature and contains personal information in violation of copyright and numerous privacy laws and must be removed immediately.
6. Name of complaining party: Craig R. Brittain 7. Address: [omitted by Ken], Colorado Springs, Colorado, 80920 8. Phone: [omitted by Ken] 8. E- mail: submit@isanybodydown.com I hereby affirm, as the complaining party, that I believe in good faith that the use of the material in the manner complained of is not authorized by the copyright holder, its agent or the law.
I hereby affirm, under penalty of perjury, that the information contained in this notification is accurate, and that I am authorized to act on behalf of the holder of the exclusive right that I claim to be infringed.

Craig R. Brittain_____________________________
Signature of person authorized to act
Date: November 3rd, 2012, 2:10 AM MST______________________

The notice is patently ridiculous on any number of levels. Note, for instance, that Mr. Brittain is asserting copyright in a printout of his criminal record and in a correspondence between "David Blade" and Marc Randazza.

Note also that in his under-penalty-of-perjury statement Mr. Brittain avoids asserting explicitly that "David Blade" is a real person. That's probably prudent.

It's not going to work, Craig. Even if you catch some abuse official on a bad day and convince them to take a few posts down, 100 more will pop up talking about your sick campaign of fraud and extortion.

Last night I had an exchange on Twitter with Chance Trahan, the business partner of Craig Brittain and co-founder of the "Is Anybody Down?"/Takedown Lawyer extortionate scam that represents an effort to monetize humiliation of women for the pleasure of sick freaks.

I had sent Chance a tweet a few days ago asking him who "David Blade" is; he responded with a torrent of all-caps meatheaded abuse. He's taken down the account now, but this screencap (courtesy of Something Awful forum goon E4C85D38) you can get a flavor of a bit of it:

Yes, I blew the lyric. I was watching TV.

Among other things, he said that he would be releasing an "app" to fight me on the site he and Craig Brittain have put up (that's the one saying that Marc Randazza and I have been paid $350,000 each in porn industry mafia blood money to oppress them) and called me a bully. He also called me a FAT TREND KILLER, which I think he meant as an insult.

(Craig and Chance have also attracted the attention and support of the floridly ill and evil Crystal Cox, who has used the occasion to put up a slew of new sites attacking me and my firm, which — by the way — has nothing to do with this blog.)

Chance's cry of "bully" echoes Craig's. This illustrates something I've long observed — as a nerdy, mouthy fat kid getting picked on, as a prosecutor going after con men, as a lawyer doing both criminal defense and civil litigation: nobody whines about bullying more than a bully. Craig Brittain and Chance Trahan gleefully created and promoted a site that puts up misappropriated or fraudulently obtained nude pictures of women, adds their names and hometowns and contact information, encourages their verminous audience to harass the women, then chortles when the women beg or threaten to get the pictures taken down. Moreover, they've added fraud and extortion to that sick cruelty, first with the bogus lawyer "David Blade" offering to get pictures taken down for money, and now with the equally fraudulent "Takedown Hammer" calling themselves an "independent third party team" that will take pictures down for money. Yet they are able to imagine themselves as victims in the affair. It resembles classic mewling sociopathy.

I discovered something a bit disturbing last night. Someone showed me that Chance Trahan puts pictures on the internet showing that he has a very cute young daughter. I'm sure he loves her very much. I'm sure she loves him. Despite the fact that he's wantonly cruel, and a meathead, it would not surprise me at all to learn that he's a doting and tender parent. But somehow Chance Trahan is able to separate, in his mind, that little girl, and her mother, and his mother, and any other women he's ever cared about, from the women being humiliated and abused on "IsAnybodyDown?" He's able to put them in a separate category when his site posts women's phone numbers so people drooling over their pictures can call them incessantly. He's able to but them in separate categories when his site posts mocking posts about takedown requests.

But Chance Trahan's daughter is a human being, with feelings, and so are the people depicted on the site. So let me ask you, Chance: when your daughter is old enough to understand — say, 14 — and she asks you if you are proud of what you did with "Is Anybody Down?" and "The Takedown Lawyer?", how would you respond? If your daughter, as a teen, made a stupid young mistake that too many girls have recently and sent an explicit picture to a boy, and he sent it to a site like yours, would you be able to put that in a separate category, too?

I believe that people generally are not all good or all bad; I believe that "good people" are capable of cruelty and "bad people" capable of kindness. I think we're all broken, which comes out to different degrees. Despite that belief, my own brokenness is sometimes expressed by treating people as all bad — and exposing them to easy and occasionally cruel ridicule — when I write about them on this site. But like Chance, I have children that I love. Just as I can imagine my daughters being victimized by a site like this, I can imagine any of my three children, through their own brokenness, falling into a course of evil and cruelty like Craig and Chance have. I would be disappointed and humiliated but still love them, and would hope that others would still recognize their innate humanity — as I sometimes fail to do in writing about bad behavior on this site. A critic might say that when I write about bad actors on this site, I put them in a different category than myself and my kids, something like (though to a very different agree) Chance does with the women his site abuses. So let me make this clear: I'd be happy to take down this series of posts about Craig and Chance and their fraud and extortion and cruelty if they decide to stop doing what they are doing and spare the women on their site and take down their sites. I still believe that more speech — like this — is one of the best ways to address bad behavior, and that exposing bad actors is effective and appropriate. But I also believe, ultimately, in mercy for people who stop doing evil.

Chance, I recognize you as a fellow father, and human being, in the pictures of you as a proud father with a beautiful little girl. I ask you: look at her, then look at those sites, and make the decision to take them down. I will, in turn, take down these posts, and also apologize to you as a fellow human being for the cheap shots I have taken in the course of exposing what you're doing — because I've done wrong things, too. Craig, I don't know if you have children. But you seem to have a decent family made up of admirable people who have done good things, and I'm sure you love them and they love you. Look at them, and look at your sites, and decide if this makes you proud, and I will do the same.

But if you don't — I won't stop working with Marc Randazza to help the women you're treating that way, and I won't stop talking about your fraud and extortion, and I won't stop fighting you.

Update: I've just read an email exchange between "David Blade" and a victim. Never mind. Murum aries attigit.

Yesterday I invited you to join a crowdsourced investigation led by Marc Randazza. In brief: a scummy site called "Is Anybody Down?", a copy of the departed and unlamented "Is Anybody Up?", posts questionably obtained naked pictures of women with their names and hometowns and often their Facebook pages or phone numbers. The troglodytes who hang out there then favor them with comments like these:

You should really consider buying some tits the miracle grow isn't working babe sorry

Damn, poor girl, her reputation / NAME is dirty for life…. Her childrens children will someday see this ! Hopefully she dont go committing suicide & shit

Did anyone call her? phone work?

As Marc documented in a series of posts, "Is Anybody Down?" had a sleazy relationship with "Takedown Laywer" "David Blade III," who purported to be a lawyer who would help you get your picture off of the site for a few hundred bucks. Marc posted convincing evidence, with which I concurred, supporting the conclusions that (1) "David Blade" is not an attorney, (2) there is no "David Blade," and (3) "David Blade" is most likely Craig Brittain himself, who registered both the "Is Anybody Down?" and "Takedown Lawyer" sites. In other words, it's a wire fraud and extortion scheme.

Hilarity ensued. But now Craig Brittain is angry. Very angry. And in addition to Marc Randazza and your ob'nt servant, he knows exactly who is to blame.

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I've been out of sorts of late, riven with the suburban fin de siècle, plagued with ennui, angst, weltschmertz. You know — moping.

There's only so many free speech cases I can write about in a week. Nobody pony-worthy is writing to me. I'm waiting for a couple of shoes to drop on the UST Development fraud investigation.

If only there were a nice juicy scam out there to chase . . .

Marc Randazza to the rescue!

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When Marc Randazza writes a pants-shittingly terrifying letter for someone else in response to a bogus censorship threat, and you read it, it's like a warm hug from a dear friend on a cool day.

When you get a bogus censorship threat, and Marc Randazza writes a terrifying letter defending you, it's like [things you can't describe on a blog your wife, pastor, aunts, partners, associates, and cousins all read.]

Usually when we write about legal threats at Popehat, they're bogus. When threats are bogus — malicious, frivolous, or calculated to censor unjustly — we applaud the Streisand Effect. The "Streisand Effect" refers to the the tendency of any attempt to censor online information to result in that information being far more widely distributed. The Streisand Effect is distinct from a phenomenon I'll call the Carreon Effect — the tendency of censorship demands (especially bumptious or obnoxious ones) to result in widespread ridicule of the would-be censor.

But not every legal threat is frivolous. Some people on the internet engage in genuine, actionable copyright and trademark violation and defamation. There's nothing admirable about that. There is a remedy at law, and ought to be. It's perfectly reasonable for a victim of such behavior to write the perpetrator and ask that they cease and desist.

Nobody wants a defamatory attack upon them to be read by a hundred times more eyes as a result of their own efforts. No lawyer drafting a cease and desist letter wants to become an internet meme. So how, in an internet culture that birthed the Streisand Effect and Carreon Effect, can you vindicate your rights without making things worse for yourself? How –as a victim of defamation or copyright infringement, or as the attorney for such a person — can you send a takedown demand without finding yourself infamous?

Despite the fact that our readers seem determined to ignore our advice, whether Patrick gives it or I do, I have some suggestions about how to send a takedown request without running afoul of the Streisand Effect or Carreon Effect.

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Yesterday I wrote about how Ranaan Katz, an owner of the Miami Heat, was demonstrating less self-respect and good judgment than George Costanza by suing over an unflattering picture as part of a litigation campaign to silence a critic.

You're thinking "there's nowhere else for him and his lawyers to go. They can't double down. This can't get worse."

And now it falls to me to take you by the lapels, shake you, and shout "YOU KNOW NOTHING, JON POPEHAT-READER!

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