Author: Ken White

60

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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53

With Apologies To Baron Macaulay

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XXVII

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

XXVIII

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

XXIX

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

21

A SLAPP False Alarm Out Of Chicago: The Law Is An Ass

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Monday's Chicago Tribune ran a story that had all the makings of a free speech outrage: a developer had sued local residents who had spoke out against a proposed Park Ridge development.

The residents went to a pair of public hearings to express their concerns about a developer's plans for a new four-story condominium building in their Park Ridge neighborhood.

Then they found themselves on the receiving end of a lawsuit.

Multiple people emailed me about this story, and more tweeted it to me. Fie! Censorship! Suppression! The original impetus for anti-SLAPP statutes was developers suing NIMBY citizens. This is a classic SLAPP! It's actionable even under Illinois' pathetic anti-SLAPP statute! To arms!

Or not.

I wrote the developer's attorneys at Ungaretti & Harris LLP. They responded quickly and courteously. (You may or may not be surprised to hear that's not the response I generally get.) They sent me the complaint, and pointed to some authority that explained their stance.

See, the developer here isn't suing for damages. It's not asking for anything from the neighbors. It's suing to overturn a zoning commission decision denying it a permit to build a multi-family residential and commercial development in Park Ridge. And the developer's attorneys have an extremely credible argument that Illinois law requires them to name a ridiculous array of people in the lawsuit to accomplish that.

Illinois, like many states, has statutes governing how you can challenge a zoning decision. It's not unusual for that path to be a lawsuit seeking review of the administrative decision. What is unusual is that Illinois law (1) requires you to name, as a defendant, all "parties of record" to the underlying decision, and (2) defines "parties of record" ridiculously broadly. The developer has a very credible argument that the neighbors who spoke at the zoning meetings are "parties of record" and that they are required under Illinois law to name them as defendants.

The developer's attorneys pointed me to a case in which the Illinois Appellate Court overturned a lower court decision in a zoning challenge on the grounds that the developer making the challenge hadn't named as defendants the neighbors who had objected to the development. That case also involved Park Ridge zoning:

The Park Ridge residents who made personal or representative appearances at the zoning board hearing lived in the immediate vicinity of the plaintiffs' property. They were more than disinterested witnesses; they actively maintained a position opposed to the plaintiffs'. Their interest in the outcome of the hearing was substantial. They did not seek administrative review of the board's decision because the decision was favorable to them. Their interest became jeopardized a second time when the plaintiffs challenged the decision in the circuit court; yet they were neither notified of the suit nor made defendants. They were thus deprived of the opportunity of protecting their interest-the monetary value of their homes and the aesthetic level of their neighborhood-in court.

O'Hare Int'l Bank v. Zoning Bd. of Appeals, City of Park Ridge, 8 Ill. App. 3d 764, 767, 291 N.E.2d 349, 351 (1972)

I did a little research on my own to see if the developer was relying on bad law. I found multiple cases emphasizing that failure to name the proper parties deprives the court of jurisdiction — meaning that any good result the developer got would be for naught. For instance, in one case a police officer suing a police commission for reinstatement was thwarted because he didn't name, as a defendant, the police chief who had complained about him to the commission:

Moreover, numerous Illinois supreme court and appellate court cases held that failure to name all parties who were of record at the administrative hearing makes a complaint fatally defective. See Winston, 407 Ill. 588, 95 N.E.2d 864; O'Hare International Bank v. Zoning Board of Appeals (1972), 8 Ill.App.3d 764, 291 N.E.2d 349. The requirement of naming all parties of record as defendants is both mandatory and jurisdictional. (Winston, 407 Ill. at 595-96, 95 N.E.2d 864; O'Hare International Bank, 8 Ill.App.3d at 767, 291 N.E.2d 349.) Section 3-107 of the Administrative Review Act states:

Marozas v. Bd. of Fire & Police Comm'rs of City of Burbank, 222 Ill. App. 3d 781, 787, 584 N.E.2d 402, 406 (1991)

In short, I think that the developer's lawyers here are right: there is at least a reasonable concern that a court will find that they must sue the neighbors who appeared at the zoning hearings in order to get relief from the zoning decision. That's a bizarre rule, but it's Illinois' rule, not the developer's.

Quench the torches, let fall the pitchforks: this likely isn't a SLAPP suit.

From my Monday-morning-quarterback armchair I will note that it would have been prudent to have a paragraph in the complaint saying something like "the Neighbor Defendants are named solely as required by Illinois law as potential parties of record to the administrative hearing, and no relief is sought specifically from them." It also would have been prudent to have an advance media strategy when this hit; a furor about SLAPPs was predictable. Nobody's perfect.

Remember: the media doesn't get law. Don't trust its reporting. Don't assume that sombody's failure to respond meant that they don't have a response.

Edited to add: Jack Leyhane is not completely convinced.

108

Roca Labs, Lacking A Hornet Nest Into Which It Could Stick Its Dick, Has Sued Marc Randazza

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This crazy litigant goes to 11.

Roca Labs, you may recall, is the weight-loss-goo purveyor that is belligerent, litigious, and sensitive to criticism to a pathological degree. Last month I wrote about how they require their customers to sign no-criticism contracts, and had sued PissedConsumer.com for carrying negative reviews. Yesterday I lit the Popehat Signal to seek help for customers Roca Labs has targeted with vexatious litigation — including, in what no doubt is just a big coincidence, one of the witnesses against them in their first litigation.

Can Roca Labs push the envelope more? Yes they can.

Today Marc Randazza — counsel for PissedConsumer.com in Roca Labs' frivolous suit — filed an updated notice of related cases in the PissedConsumer case. That updated notice revealed that Roca Labs has now sued Randazza himself for his activities defending PissedConsumer.com.

The complaint itself — which I have uploaded here — brings the crazy and brings it good and hard. It was penned by Roca Labs' latest attorney, one Johnny G. DeGirolamo, a 2009 law school graduate and 2011 bar admittee, whose website is www.inlawwetrust.com. No, really. His site offers a flattering headshot of a smiling advocate, and it was a very good choice to use that picture rather than, say, his booking photo.

Roca Labs, through Johnny G., accuses Marc of interference with economic advantage and defamation per se1, demands a declaration that Randazza is wrong and he is libel, and moves for an injuction telling Marc to shut up. Yeah, good luck with that.

But that ain't all. The complaint is a model of prissy pearl-clutching. Johnny G. is aghast that Randazza has provided legal services to adult entertainment companies. Goodness gracious! Johnny G. is horrified that Randazza has been "an outspoken advocate for Phillip Greaves, the author of 'The Pedophiles Guide to Love and Pleasure.'" To be more accurate, Randazza has been an outspoken advocate for the First Amendment issues presented by Greaves' case, but it's not surprising that a First Amendment distinction is lost on the sort of attorney who wold represent Roca Labs. Johnny G. is cheesed off at Randazza's catchphrase murum aries attigit, which apparently suggests a level of aggression that is upsetting to a company that flails around suing its customers for criticizing it. In short, Johnny G. — bless his heart — does his best to make Marc Randazza sound terrible, and only wind up making him sound knowledgeable about free speech.

On to the substance of the claim, if I may use the term very generously. Roca — through Johnny G. — asserts that Marc has been defaming Roca Labs during this litigation by making statements to the press (or, as Johnny G. puts it, to "webzines") and then putting those same statements in court pleadings. They imply he's trying to cloak his statements to the media with litigation privilege by repeating them in court filings. This theory is . . . odd.

Moreover, Johnny G. and Roca Labs are conspicuously vague about exactly what statements are defamatory, and exactly how. Other than complaining that Randazza defamed Roca Labs through a very clearly satirical tweet on Halloween, there are few specifics. Roca Labs complains that Randazza's purpose is to "mock, ridicule, humiliate, harm, and continue his war against ROCA," but that's not very specific. Roca Labs complains about statements in articles by TechDirt and tries to attribute them to Randazza, but doesn't explain exactly what Randazza said and exactly how it was wrong. That lack of specificity is probably deliberate — if Roca Labs admitted they were mad over the term "snake oil," they'd have to confront the fact that the phrase is obviously protected opinion. See, e.g., Phantom Touring v. Affiliated Publ'ns, 953 F.2d 724, 728, 730–31 (1st Cir.1992) (holding that description of theatre production as “a rip-off, a fraud, a scandal, a snake-oil job” was no more than “rhetorical hyperbole”). Moreover, in some parts of the complaint Roca Labs is attacking statements that are clearly, objectively true based on Roca Labs' own court documents. For instance, Roca Labs angrily quotes a paragraph in which TechDirt accused them of trying to silence customers. Which is what they are doing.

Finally, the complaint attaches a motion for a temporary injunction, in which Johnny G. demands that Randazza cease and desist saying mean things about Roca Labs, retract prior mean things, and remove any online content about Roca Labs. At this point I have to admit that I don't know whether Roca Labs and Johnny G. are powerfully stupid, breathtakingly cynical, unapologetically unethical, or all three. Despite the fact that they are suing a renowned First Amendment lawyer, despite the fact that they are demanding an injunction silencing him, despite the fact that they have lost a similar injunction request in which Randazza schooled them on the First Amendment and prior restraint issues, and despite the fact that it is clear those issues will arise again, their motion makes no mention whatsoever of the overwhelming First Amendment and prior restraint issues presented by their demand.

Roca Labs is mistaking aggression for strategy. Randazza, by filing his notice of related case, has alerted the federal court hearing the PissedConsumer.com case that Roca Labs is flailing around suing opposing lawyers, which will not go over well. Roca Labs has hired what appears to be an improbably matriculated Muppet to champion their case, despite a patent lack of qualifications. Roca Labs thinks that suing Marc Randazza to shut him up is going to end well. They should have asked Raanan Katz or Crystal Cox how that would turn out.

I'm calling it: Roca Labs has achieved Prenda status.

Edited to add: Adam Steinbaugh explains why Roca Labs' attempt to evade the litigation privilege is so frivolous.

30

"Digital Homicide Studio" Abuses DMCA To Lash Out At Reviewer Jim Sterling, Gets Fair Use Wrong

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Frivolous abuse of the Digital Millennium Copyright Act is nothing new. We've seen fake poets, manufacturers,purveyors of anatomically impossible boobs, sociopathic revenge-pornsters, and legbreakers for totalitarian governments make false claims of copyright violations in an effort to censor online criticism.

So why should we be surprised that a computer game designer would abuse a DMCA takedown request to silence a negative review?

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47

Popehat Signal: Help Fight the Censorious Villainy Of Roca Labs

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New Popehat Signal courtesy of Nigel Lew.  Thanks, Nigel!

It's time to light the Popehat Signal to find pro bono assistance for citizens threatened with a bogus and censorious lawsuit.

The cartoonish villain of this story is Roca Labs, whose belligerent attempts to silence critics inspired my post last month. Roca Labs, you may recall, produces a pink slime that one is supposed to eat to suppress the appetite. Roca Labs is pathologically adverse to criticism, and therefore has hit upon an increasingly familiar tactic — they require at least some of their customers to sign contracts promising not to criticize them at all. Based on those contracts, they filed a lawsuit against Pissed Consumer.com, a gripe site that printed complaints by their customers. Their quasi-legal flailing became more desperate when First Amendment heavyweight Marc Randazza took up PissedConsumer.com's defense.

Now Roca Labs has crossed the Rubicon from mildly entertaining legal buffoonery to outright despicable abuse of the system calculated to suppress not only the right to free speech but the right to petition the government. As TechDirt first reported, Roca Labs has now sued — in Florida — three of its customers from other states. What's notable about these three customers? One of them provided witness testimony in Roca Labs' lawsuit against PissedConsumer.com. Roca Labs has previously complained about many different customers exercising free speech, but now wantonly targets just these three consumers, one of whom just happened to be a witness against them.2 Roca Labs is demanding damages, attorney fees, and an injunction prohibiting these consumers from criticizing Roca Labs. As Techdirt points out, Roca Labs' attorneys rather comically assert that the defendants' criticisms are "defamation per se" because they agreed in advance contractually that they would be. That's not how it works, dipshits.

Roca Labs isn't a full Prenda yet, but by God, it's trying.

Those three defendants need help. Even when a suit is patently frivolous and vexatious, defending it — particularly in a distant state — is ruinously expensive. That's Roca Labs's purpose — not to win on the merits, but to silence critics through cynical abuse of the legal system. These three defendants can't afford to hire lawyers in Florida. If they don't get help, Roca Labs wins through manipulation of a broken system.

You can help. If you are a lawyer admitted in Florida, you can act, at least, as local counsel. If you are a lawyer in another state, you can help Florida counsel. If you're just someone with a voice on the internet, you can help get the word out about Roca Labs and its contemptible behavior, and help these people find pro bono legal assistance. (Some sort of fundraising campaign, at least for costs, is also a possibility, though the defendants should get independent legal advice about that.) You can also get the word out about the unethical and repulsive behavior of the attorneys who filed this suit, Nicole Freedlander and Paul Berger of the "Hurricane Law Group." Berger has also been involved in threatening bloggers and witnesses.

And finally, please help circulate and promote this question: why would any sensible person consume a weight-loss product from a company that sues customers who criticize its safety, value, or efficacy? Does that sound safe to you?

By the way, this is not the end of Roca Labs' bizarre behavior — stay tuned for more.

Fight evil.

130

Is The Right Mocking Victim Culture, Or Adopting It?

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For years, I've been criticizing the trope that the American Right (for want of a better term) is victimized by the mean rhetoric of the American Left (ditto). I ridiculed a rightie blogger when he said that accusations of racism are inherently tyrannical and silencing, I dissented when Clint Eastwood complained he should be able to tell ethnic jokes without being criticized, and I scoffed when Kirk Cameron said that he should be able to say homosexuality destroys civilizations without people being mean to him about it. I've discussed how both the "Left" and the "Right" have stretched the term "bullying" beyond recognition.

It's time for me to confess: I'm not entirely sure what some conservatives are up to.

Have they immersed themselves in "victim of speech" culture, accepted its premises, and become part of it? Are they making fun of it subtly? Are they acting to discredit it by overusing it? Are they illustrating how it can be abused, and how it is unprincipled?

Hell if I know.

Take Dennis Prager. I've criticized Prager before for suggesting that mean liberal rhetoric bullies conservatives into changing political positions. In his most recent foray into the issue, Prager portrays himself as the victim of a leftist mob based on angry reactions to comments he made about national dialogue over campus sexual assault. He said:

One in five women are sexually assaulted on campuses? You know what sexual assault means? Did you ever look at what counts? An “unwanted kiss” is considered sexual assault. I’m stunned it’s only one in five. Four out of five women have not gotten an unwanted kiss? My wife gets unwanted kisses every so often!

Prager then nails himself to a cross, citing incendiary comments at places like Huffington Post and Wonkette. He complains:

Second, mockery — indeed cruel mockery — is the norm on the left. I urge readers to visit any of the liberal websites cited and read the comments after the articles. No significant American group hates like the Left does. If you differ with them — on global warming, race relations, same-sex marriage, the extent of rape on college campuses, and any number of other things — they will humiliate, defame, libel, and try to economically crush you.

Look, I know this will provoke a few dozen comments making the empirical claim "the Left just is meaner than the Right." I don't buy it. I think we're hardwired to take more offense at attacks on "our side," and disregard attacks made by "our side." Take a look at the comments on Prager's own column — or on any column on NRO — if you doubt me. I guess that "their commenters fairly represent them, but ours don't represent us" is an argument, but it's not a persuasive one.

So what are Prager and his ilk up to? Do they genuinely see themselves as victimized by rough criticism? Do they actually think that social pressure directed at their speech is different from the social pressure they seek to direct? Or is this an elaborate pantomime, designed to illustrate that "bullying" rhetoric is unprincipled and can be used by anyone against anyone?

Whatever the answer, it's a misstep. If conservatives have fallen prey to the speech-victim ethos, it's a failure of character; if they think they are teaching a lesson, they are too optimistic about their audience. As I said recently in the context of "GamerGate," when you use rhetorical tropes and techniques, you normalize them, so they can be more easily used against you.

Bullshit should be identified as such. Complete lack of proportion should be commented upon. True threats should be reported and their makers stomped. Genuine harassment should be called out. But "we can't endure the unique rhetorical meanness of the other team" does not convey "our ideas are right and we deserve to lead." Instead, it insidiously promotes the very worst and most un-American of ideas: that we have a right not to be offended, that we have a right not to be ridiculed or disagreed with, and that speech might be as bad as action, and therefore a proper subject for regulation.

Cowboy up, Dennis Prager.

88

Lena Dunham, Meet Barbara Streisand — Have You Met?

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Lena Dunham, who apparently is famous for a HBO show I haven't watched, has a memoir out. I don't approve of 28-year-olds having memoirs unless and until they have been shot for advocating for the downtrodden or something, but Ms. Dunham is hardly the first to commit this minor sin.

This weekend Ms. Dunham became very upset because some people — mostly on conservative political websites — described her memoir as a confession to sexually abusing her little sister.

Here's how "Truth Revolt" characterized quotations from the memoir:

In the collection of nonfiction personal accounts, Dunham describes using her little sister at times essentially as a sexual outlet, bribing her to kiss her for prolonged periods and even masturbating while she is in the bed beside her. But perhaps the most disturbing is an account she proudly gives of an episode that occurred when she was seven and her sister was one.

You can read the subsequent quoted passage for yourself.

Now Ms. Dunham has, according to Truth Revolt, threatened them with a lawsuit and demanded that their post be taken down. Ben Shapiro, author of the pieces, has not yet responded to our request that he post the threat letter. So we only have his word that Ms. Dunham made this demand and threat. However, I submit that Mr. Shapiro has a certain amount of credibility on the subject of overheated reactions to things.

If Ms. Dunham is alleging that the original Truth Revolt article about her is defamatory, she is wrong — unless it has deliberately and extensively misquoted her book. Truth Revolt has admitted that the article originally and incorrectly said that she was 17, not 7, when one of the incidents described took place. But absent proof that Truth Revolt made that misstatement intentionally, that's incompetence, not the actual malice required to prove up defamation of a public figure like Ms. Dunham.

Truth Revolt's characterization of Ms. Dunham's memoir is not defamation. It's classic opinion based on specific disclosed facts. You might think that Truth Revolt's interpretation of Dunham's stories of her conduct with her sister is irrational, or unfair, or politically biased, or cruel. That doesn't make it defamatory. If I linked to one of Ben Shapiro's articles and said "this article proves that Ben Shapiro is a secret lizard person sent by Obama to discredit conservatives," that wouldn't be defamation either. It might be crazy, but it's my statement of opinion based on Shapiro's own words. If Truth Revolt had said "people have told me that Lena Dunham molested her sister" or "I have reviewed documents that suggest to me that Lena Dunham molested her sister," that would be different — that would be a statement of fact, or a statement of opinion based on undisclosed facts.

So: Ms. Dunham will fail, sooner or later, if she sues over this article. Her threat, and her reaction to the coverage, are likely to trigger the Streisand Effect, driving orders of magnitude more eyes to the characterizations of her memoir. She's media-savvy enough that I can't help but wonder whether that's her intention in the first place. It will sell books.

I haven't read the memoir and have no plans to do so. I find some of Dunham's descriptions of her conduct (as quoted) creepy and unsettling. But I also think that classifying a seven-year-old's behavior as sexual abuse is, at least, problematical. (Being disturbed by the tone Dunham uses to relate her seven-year-old behavior is a separate issue.) I seriously doubt that the discussion of abuse of or by children will be advanced by a dispute that is deliberately politically charged.

439

Ten Short Rants About #GamerGate

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If you know what #GamerGate is, I don't have to tell you. If you don't know what #GamerGate is, any description I give you will be attacked by hordes of partisans saying that I have described it unfairly and that the sources I have linked are biased. So I'm going to treat you, dear readers, as if you know what it is. Clark wrote a post about it last week. My take is different. I'm not going to offer you a timeline or an attempt at a definitive "what happened" or "who is right." Instead I'm going to rant about ten ways that this controversy illuminates how we're screwed up.

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66

Dinesh D'Souza's Sentence Isn't Remarkable

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Recently I wrote about political pundit Dinesh D'Souza's selective prosecution claim and about the support for him at sentencing. Today a federal judge sentenced him to five years probation, eight months of that in a community confinement center, community service, and "therapeutic counseling."

A few comments:

1. The sentence isn't remarkable at all. Both sides agreed on the sentencing range under the United States Sentencing Guidelines. Though the recommended sentence under those guidelines was 10-16 months, the judge had discretion to go lower or higher. Probation with a term of home detention or "community confinement" is a very common approach to a nonviolent first offender with a low guideline range. For a 53-year-old with no record, this is roughly in the middle of the array results I would expect. In a case like this I would have shot for probation conditioned on home confinement but told the client that a short term in custody or a term in "community confinement" was a strong possibility. You may see it as unreasonably lenient or hash, but federal criminal practitioners won't.

2. A "community confinement center" sounds Orwellian, but it's just a halfway house. It's like a halfway house used for recovering addicts. Imagine a slightly dingy and run-down house in a not-quite-good neighborhood, with a group of people and someone on staff usually there. Being in a halfway house means that for eight months D'Souza will have to sleep there, but will be allowed to leave to go to work, church, and the doctor, or to other activities permitted by the house supervisors.

3. "Therapeutic counseling" sounds Orwellian but isn't. The BOP doesn't have people to counsel you on politics. Counseling as a condition of probation is typical. Available counseling includes drug, alcohol, marital, parenting, anger management, psychological, and so forth. I don't know what particular element of D'Souza's background resulted in the counseling condition, but there's absolutely no basis to jump to the conclusion that it's meant to reeducate him.

Remember: usually you can't rely on media reports of criminal justice events.