Marc Randazza Defeats The Very Sensitive Raanan Katz On Prior Restraint Issue

Law

Remember Miami Heat owner Ranaan Katz? He's the easily offended fellow who goes around suing people because there's a mildly unflattering picture of him on the internet. Previously I wrote about how he sued a blogger who was relentlessly critical of him, threatened to sue the blogger's lawyers — including First Amendment badass Marc Randazza — for representing her, and eventually convinced a Florida judge of questionable judgment to issue a broad, unprincipled, and unconstitutional prior restraint against blogging negatively about Katz.

Sometimes the bad guys win, I said after that ludicrous injunction. But there's another apt cliche — it ain't over 'till it's over.

Yesterday the blogger, represented on appeal by Marc Randazza and Jeffrey Crockett, won on appeal. Their victory was won in part by the hard work of Darren Spielman and Robert Kain in the trial court. The Third District Court of Appeal for Florida issued a broad and helpful opinion soundly rebuking the trial court for its prior restraint injunction.

I've been talking about prior restraint in the context of the Roger Shuler story. The concept, at its heart, is that the law (both constitutional doctrine and the common law of most states) allows a court to punish some speech after it happens, but with very few exceptions doesn't allow injunctions prohibiting speech in advance. The Florida court was blunt about the impact of Florida law:

Injunctive relief is not available to prohibit the making of defamatory or libelous statements. See, e.g., Vrasic v. Leibel, 106 So. 3d 485, 486 (Fla. 4th DCA 2013). A temporary injunction directed to speech is a classic example of prior restraint on speech triggering First Amendment concerns. Id.

The court noted a Florida exception — prior restraint might be permitted when the speech at issue is not just defamatory, but also constitutes a business tort like interference with business relationships. You can see how that could become the exception that swallows the prior restraint rule when the censorious plaintiff is a businessperson like Raanan Katz. Fortunately the court here demanded more than allegations; it demanded proof of interference with business relationships from the blogger's insults, and found that Katz had provided none:

However, as in Murtagh, the record before us fails to support an inference that Ms. Chevaldina’s blogs are having a deleterious effect upon prospective tenants. The temporary injunction should have been denied for a failure to show with reasonable certainty the elements of tortious interference, as there was no evidence of unjustified interactions with specific parties known to be involved, or likely to be involved, in an advantageous business or contractual relationship with the appellees.

(By the way, it's not clear to me at all that this Florida doctrine of "prior restraint is acceptable if you associate it with another tort in addition to defamation" meets constitutional muster, but this decision shows a court requiring actual proof of harm, which is a good thing.)

Moreover, the Florida court also found that the injunction below was overbroad — that is, it swept far more speech than what could be arguably defamatory, and prohibited far more than the rare cases permitting prior restraint have allowed:

The injunction under review prohibits Ms. Chevaldina 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”; and “directly or indirectly publishing any blogs or any other written or spoken matter calculated to defame, tortuously interfere with, invade the privacy of, or otherwise cause harm to Plaintiffs.” This injunction improperly burdens Ms. Chevaldina’s speech more than necessary, attempts to enjoin future defamation, and fails to put Ms. Chevaldina on notice as to what she may or may not do under the injunction.

That language is key. As I said before, one of the main flaws with the unprincipled prior restraint order the trial court issued was that it was impossible for the blogger to determine what speech was prohibited, and the order effectively prohibited even truthful negative speech about Katz.

The court also overturned the injunction against trespass and stalking, finding that Katz had not submitted evidence of such activities, and rejecting the notion that blogging is "cyberstalking":

The appellees argue that Ms. Chevaldina’s blog posts constituted “cyberstalking” and therefore provided “incidents of violence,” i.e., stalking, as to justify an injunction pursuant to section 784.046. However, the appellees failed to introduce evidence that specific blog posts were being used “to communicate, or to cause to be communicated, words, images, or language . . . directed at a specific person, causing substantial emotional distress to that person and serving no legitimate purpose.”

This part of the ruling is important because overbroad notions of "cyberstalking" and "cyberbullying" are now a primary front in the war between free speech and censorship; it's common for censors to argue that unwelcome online speech about someone should be treated like repeated unwelcome communications to the person.

Finally, the Florida court ended with a helpful flourish, putting blogging into the the context of classic rhetorical tropes of free speech analysis:

Angry social media postings are now common. Jilted lovers, jilted tenants, and attention-seeking bloggers spew their anger into fiber-optic cables and cyberspace. But analytically, and legally, these rants are essentially the electronic successors of the pre-blog, solo complainant holding a poster on a public sidewalk in front of an auto dealer that proclaimed, “DON’T BUY HERE! ONLY LEMONS FROM THESE CROOKS!” Existing and prospective customers of the auto dealership considering such a poster made up their minds based on their own experience and research. If and when a hypothetical complainant with the poster walked into the showroom and harangued individual customers, or threatened violence, however, the previously-protected opinion crossed the border into the land of trespass, business interference, and amenability to tailored injunctive relief. The same well-developed body of law allows the complaining blogger to complain, with liability for money damages for defamation if the complaints are untruthful and satisfy the elements of that cause of action. Injunctive relief to prohibit such complaints is another matter altogether.

This is exactly right. Censors attempt to treat blogging as something substantively different that takes it outside classic free speech protections, but there is nothing new under the sun, and blogging gets the same protection as other speech.

This is a huge and embarrassing defeat for the thin-skinned and entitled Raanan Katz and his aggressively censorious lawyers, and a huge victory for Marc, Jeffrey, Darren, Robert, and free speech. Well done. DON'T SUE ME RAANAN.

59 Comments

Rhode Island Cops Vigilant In Face of Scourge of People Making Fun of State Representative Scott Guthrie

Irksome, Politics & Current Events

Murder was the case.

No, wait. Mockery was the case.

Somebody was mocking Rhode Island state Representative Scott J. Guthrie. And not even because of his 'stache! No, someone put up a clearly satirical Facebook page about Guthrie, mocking him and attacking his political positions.

Guthrie, as an adult, a responsible citizen, and a government official who cares about the public fisc, laughed it off and talked to reporters about how it demonstrated that his ideas are right.

No, wait. That's the bizarro-America response.

This is the real America — the America of butthurt, the America of snivelers, the America of "I'm entitled not to be offended," the mewling o-help-me-nanny-state America.

So Scott Guthrie went to the cops, and the cops conducted a full investigation — including subpoenas — before realizing that putting up a satirical Facebook page is not a crime, even in a world where we have broad and vague and unprincipled "cyber-harassment" laws.

How extensive was the investigation? Consider the police report yourself.

It turned out that the satirical page was created by Republican Sen. Nicholas Kettle. Guthrie is a Democrat. Kettle, naturally, faced no official consequences; the young communications director who helped him make the page was fired. The communications director used legislative resources, a computer, to create the page, you see. There was no consequence for Guthrie using substantial law enforcement resources to investigate being made fun of.

Kudos are due to law enforcement for resisting the demands of a state legislator:

But on advice of a lawyer in Attorney General Peter Kilmartin's office, they concluded the creation of this fake Facebook page did not constitute "cyber-harassment."

After reviewing the case, "I was informed that a majority of the posts were constitutionally protected activity," and the others "would not have caused substantial emotional distress which is another required element of the crime," the lead detective, Kevin Harris, wrote in a report obtained by The Journal on Tuesday.

After speaking to Assistant Attorney General Ronald Gendron, "it has been determined that there is insufficient evidence to go forward with charges at this time," Harris wrote.

It would have been nice if they had come to that obvious assessment earlier, after a smaller expenditure of taxpayer funds. In their defense, they do far better than most.

But Guthrie may not be done:

But the case may not be over. Kilmartin spokeswoman Amy Kempe said Gendron provided an "initial assessment," but the attorney general intends to review the case. Guthrie said he may now take his complaint to federal authorities.

Scott Guthrie, you petulant, pusillanimous prat, you're a disgrace. You're a disgrace to adulthood. You're a disgrace to American citizenship. You're a disgrace to public service. Stop spending the taxpayers' money as an unguent for your butthurt and react like a grown up with some grasp of American values. Retaliate with a page about Kettle. It should be easy. Dude looks like a spotty douchebro.

(Hat tip to Nicholas Cote.)

46 Comments

How Commonwealth’s Attorney Paul B. Ebert Touched People

Effluvia

Paul B. Ebert, Virginia's longest-serving prosecutor, was honored a couple of years ago.

A portrait of Ebert was unveiled at the event that will be hung near his office alongside those of his predecessors. The portrait was done by Wendell Powell Studio in Richmond.

The idea of a portrait came from the many people Ebert has known in his 43 years as a commonwealth’s attorney.

“We see all these nice, distinguished gentlemen hanging [on the walls] around the courthouse,” Prince William area lawyer William Stephens said. “It dawned on me” that Paul Ebert should be one of them. “He has touched so many people.”

Indeed he has.

Justin Wolfe, for instance.

Continue Reading »

95 Comments

Professor Thane Rosenbaum Deceptively Carries On The Tradition of Censorship-Cheerleading

Law, Politics & Current Events

There's a traditional column you see repeated two or three times per year. The author and publication may vary, but the basic structure never changes: the column asserts that the First Amendment is not absolute, and that other countries prohibit various types of speech that offend or wound feelings, so Americans ought to as well.

This time the venue for the column is the Daily Beast, and the author is Fordham University Professor Thane Rosenbaum. Professor Rosenbaum wants us to follow the example of France and Israel and suppress more ugly speech, and argues we should rely on unspecified studies that show that speech can hurt.

There is nothing new under the sun. Professor Rosenbaum's argument resembles that of Anthea Butler or Eric Posner. In my series "A Year of Blasphemy," I have examined worldwide blasphemy prosecutions over two years to demonstrate that the norms these academics wold have us adopt are typically used to oppress religious minorities and the powerless under the thin guise of solicitude for feelings.

Scott Greenfield has already cheerfully demolished Professor Rosenbaum's very silly column. I will only address it to discuss just two of the common legal tropes Professor Rosenbaum clumsily deploys in support of an apologia for broad censorship.

First, there's the shoutout to Oliver Wendell Holmes, Jr.:

There is no freedom to shout “fire” in a crowded theater.

Back in 2012 I wrote at length about the context for that Holmes quote. First of all, Professor Rosenbaum — like most Holmes fans — truncates the quote to render it vague. What Holmes actually said was "[t]he most stringent protection of free speech would not protect a man in falsely shouting fire in a theatre and causing a panic."

But more importantly, Professor Rosenbaum — like most who misquote Holmes — ignores the context. To summarize rather than make you read my lengthy post: (1) Holmes made the analogy in deciding a shockingly brutal and censorious series of cases that are no longer good law, in which the Supreme Court gave the government free reign to jail people who criticized or agitated against American participation in World War I; (2) Holmes later repented of that position, undermined that line of cases through decisions he wrote or joined, and articulated a far more speech-protective line of authority that remains the law today, and (3) if you are fond of Holmes' rhetorical flourishes, you ought to know he was the sort of statist asshole who said things like "three generations of imbeciles are enough" whilst upholding the right of the government forcibly to sterilize people deemed undesirable.

In other words, when you throw around the "shout fire in a crowded theater" quote, you're echoing the rhetoric of a tyranny-cheerleader whose logic was later abandoned by everyone, including himself.

Next, Professor Rosenbaum invokes another favorite trope, "fighting words":

Certain proscribed categories have always existed—libel, slander and defamation, obscenity, “fighting words,” and the “incitement of imminent lawlessness”—where the First Amendment does not protect the speaker, where the right to speak is curtailed for reasons of general welfare and public safety.

The "fighting words" doctrine gets thrown around a lot to justify broad speech restrictions. The people who invoke it rarely tell you — and may not know themselves — how narrow it is, and how the courts have refused to extend it.

The "fighting words" doctrine comes from the Supreme Court's decision in Chaplinsky v. New Hampshire in 1942. Fans of censorship like to quote the broader language of the opinion:

There are certain well defined and narrowly limited classes of speech, the prevention and punishment of which have never been thought to raise any Constitutional problem. These include the lewd and obscene, the profane, the libelous, and the insulting or "fighting" words — those which, by their very utterance, inflict injury or tend to incite an immediate breach of the peace.

But censors generally don't quote the later language of the opinion narrowing the First Amendment exception:

It is a statute narrowly drawn and limited to define and punish specific conduct lying within the domain of state power, the use in a public place of words likely to cause a breach of the peace. . . . A statute punishing verbal acts, carefully drawn so as not unduly to impair liberty of expression, is not too vague for a criminal law. . . . .

Nor can we say that the application of the statute to the facts disclosed by the record substantially or unreasonably impinges upon the privilege of free speech. Argument is unnecessary to demonstrate that the appellations "damned racketeer" and "damned Fascist" are epithets likely to provoke the average person to retaliation, and thereby cause a breach of the peace.

This is the heart of the "fighting words" doctrine — a prohibition on face-to-face insults likely to cause a brawl. In that sense, it's entirely consistent with the Supreme Court's subsequent clear and present danger doctrine, in which advocacy can only be punished when it is "directed to inciting or producing imminent lawless action and is likely to incite or produce such action."

People who cite the "fighting words" doctrine never tell you how it has been treated in the courts for the last half-century. The Supreme Court has refused every opportunity to rely upon it to uphold censorship, and in fact has consistently narrowed it. It was already narrowed by 1970 in Cohen v. California, when the Court refused to use it to justify punishment of a man who wore a jacket bearing the words "Fuck the Draft." The Court made it clear that the "fighting words" doctrine was narrowed to direct confrontations likely to provoke violence:

This Court has also held that the States are free to ban the simple use, without a demonstration of additional justifying circumstances, of so-called "fighting words," those personally abusive epithets which, when addressed to the ordinary citizen, are, as a matter of common knowledge, inherently likely to provoke violent reaction. Chaplinsky v. New Hampshire, 315 U. S. 568 (1942). While the four-letter word displayed by Cohen in relation to the draft is not uncommonly employed in a personally provocative fashion, in this instance it was clearly not "directed to the person of the hearer." Cantwell v. Connecticut, 310 U. S. 296, 310 U. S. 309 (1940). No individual actually or likely to be present could reasonably have regarded the words on appellant's jacket as a direct personal insult. Nor do we have here an instance of the exercise of the State's police power to prevent a speaker from intentionally provoking a given group to hostile reaction. Cf. Feiner v. New York, 340 U. S. 315 (1951); Termniello v. Chicago, 337 U. S. 1 (1949). There is, as noted above, no showing that anyone who saw Cohen was, in fact, violently aroused, or that appellant intended such a result.

Later, in Texas v. Johnson, the Supreme Court refused to use the "fighting words" doctrine to justify a ban on flag burning:

Nor does Johnson's expressive conduct fall within that small class of "fighting words" that are "likely to provoke the average person to retaliation, and thereby cause a breach of the peace." Chaplinsky v. New Hampshire, 315 U.S. 568, 574 (1942). No reasonable onlooker would have regarded Johnson's generalized expression of dissatisfaction with the policies of the Federal Government as a direct personal insult or an invitation to exchange fisticuffs.

These cases reveal a common thread running through Professor Rosenbaum's familiar defense of censorship. The line of Holmes decisions he references upheld the government's right to suppress draft resistors and war critics. The cases narrowing the fighting words doctrine — Cohen and Johnson — involved government attempts to suppress criticism of its policies. Professor Rosenbaum and his ilk may attempt to convince you that their project is to defend the feelings of religious and ethnic minorities and the dispossessed. But the most charitable interpretation is that they are the useful idiots of tyranny. Just as the blasphemy norms they endorse are employed to abuse minorities and the powerless, the justifications for censorship they tout have been used to suppress criticism of the state and its power. Read Professor Rosenbaum's closing, and contemplate how his approach to speech would be used by any government we have ever known:

Free speech should not stand in the way of common decency.

79 Comments

Today's Talk On Convention Anti-Harassment Policies At FtBCon

Effluvia

As I announced previously, today I am giving an talk on Google Hangouts on convention anti-harassment policies and how they fit into American anti-harassment law. Some related links:

Here's the link to where the conference will be.

Here's a short quiz in preparation for the talk.

Here's a great resource about the recent history of calls for anti-harassment policies in the skeptic, open-source, and science fiction and fantasy communities.

Here's the Equal Employment Opportunity Commission's publications on discrimination issues.

I've written before about how complaints about harassment provoke disproportionate outrage and further harassment; those posts are here and here.

62 Comments

Your Criticism of My Holocaust Analogy Is Like Yet ANOTHER Holocaust

Culture, Law

When Tom Perkins wrote his letter to the editor of the Wall Street Journal suggesting that very rich people are facing a "progressive Kristallnacht," the marketplace of ideas functioned as advertised. Tom Perkins said something very stupid, and was widely ridiculed as someone who had said something very stupid. He was the butt of many jokes and his former associates distanced themselves from him.

Perkins' comment was self-serious and inflammatory enough to be slightly novel. The reaction was mundane. So was the utterly predictable reaction to the reaction. This time, that sur-reaction is delivered by the Wall Street Journal, in an editorial helpfully titled "Perkinsnacht: Liberal Vituperation Makes Our Letter Writer's Point."

Maybe the critics are afraid that Mr. Perkins is onto something about the left's political method. Consider the recent record of liberals in power.

The Journal goes on to decry genuine abuses of power — like the IRS's despicable targeting of ideologically incorrect groups — and rhetorical douchebaggery from the likes of Andrew Cuomo and Bill DeBlasio. The Journal sullenly concludes:

The liberals aren't encouraging violence, but they are promoting personal vilification and the abuse of government power to punish political opponents.

But personal vilification isn't violence, and it is right and fit to call people out every time they say it is, and then call them out again when they double down.

Vigorous and hurtful and unpleasant speech is what we have instead of violence. Our ability to level such viscerally satisfying attacks on speech we don't like is a crucial part of what convinces us, as a nation, not to censor speech we don't like. In Europe, Tom Perkins might face official sanctions for saying the wrong thing about the Holocaust; here, he faces late-night jokes and insulting cartoons and the contempt of many. I like our way better.

It's common, now, to indulge in rhetoric that conflates criticism with violence or official oppression. People — mostly African-Americans — were actually lynched by mobs in this country less than a century ago. But now "lynch mob" is generally invoked when someone acts like an asshole and, in the judgment of their supporters, too many people are pointing it out at once. Real kids commit real suicide because of real bullying while advocates of the Right and the Left invoke "bullying" to describe having one's views criticized or questioned. In some countries people are still executed for witchcraft or condemned to jail or death by inquisitions; here when people say "witch hunt" or "inquisition" we generally mean we think public criticism of someone's obnoxious behavior is excessive. We're told that the "masculine and muscular" are at "risk" or "danger" because of feminized culture. As I understand it the particular risk is being made fun of on MSNBC, which muscular masculinity is apparently too timid to sustain.

All of this silly rhetoric is itself free speech, of course. But it's not harmless speech. It's pernicious. Conflating speech and violence encourages citizens to think that speech should be controlled like violence. That's not a abstract danger. It's real. States continue to pass idiotic "cyber-bulling" statutes, blundering around the legal landscape trying to determine which insults are hurtful enough to criminalize. American institutions continue to censor speech by willfully misconstruing protected rhetoric as unprotected threats. Police and prosecutors imprison kids for what are clearly jokes and investigate authors of critical reviews for "harassment." Left-leaning law professors argue that speech on the internet ought to be regulated to protect the civil rights of participants deterred from participation by harmful speech, using rhetoric that sounds suspiciously like what Right-leaning folks use when they complain that "political correctness" deters them from participating.

So: indulge yourself if you must. Call the people speaking ill of you a "lynch mob." Call that person criticizing your political screed a "cyber-bully." Cry "witch hunt" when someone doesn't like what you say. Cry "Holocaust" if you're rich and you don't like people pointing out that the system is rigged in favor of the rich.1 But just know that the price of your self-seriousness is the creeping notion that speech is just like action, and that therefore maybe we ought to regulate it a little more.

That's why I, as a defender of free speech, am going to keep calling out and ridiculing your Kristallnacht analogies, even if you think that's another Kristallnacht.

138 Comments

British "News" Program Censors Mohammad Cartoon While Covering It

Law, Politics & Current Events

Last week I talked about the British controversy over Maajid Nawaz, a Liberal Democrat parliamentary candidate who tweeted a link to the satirical cartoon Jesus and Mo, which depicts conversations between a cartoon Jesus and a cartoon Mohammad to explore religious beliefs and attitudes.

The United Kingdom's Channel 4 News decided to run a story about the controversy. Naturally they showed a picture of the cartoon so that viewers could make an intelligent assessment of the claims of offense.

Well, sort of.

In Channel 4 News' story, at about :25, the reporter says:

This is the cartoon that is causing outrage. We have taken the decision to cover up the depiction of Mohammed so we don't cause offense to some viewers.

This resulted:

FEARTHEIROFFENSE

Channel 4 News has begged the question in classic form: it has censored a cartoon right at the start of its coverage of a debate about whether the cartoon should be censored. It has blacked out a depiction of Mohammed right at the start of putatively covering a debate over whether the few should be able to demand that the many not depict Mohammed. It has yielded to claims of offense right at the start of a discussion of whether society should yield to those claims of offense.

Even though Channel 4 is owned by a public body, this is not exactly state censorship: it is an exercise of terrible journalistic judgment rather than an act compelled by the state. But it is troublesome nonetheless. Channel 4 has pretended to cover a debate, but has actually presumed the validity of the arguments by one side of that debate. It has assumed, in a discussion of whether a cartoon is so offensive that it ought not be shown, that the cartoon is so offensive that it not be shown. It has decided to yield to a religious minority's demands about what can and cannot be depicted.

I have some questions for the alleged journalists at Channel 4 News.

1. Do you censor artistic depictions based on claims of offense even-handedly? If, for instance, you were covering a local council's decision to prevent a performance of the Reduced Shakespeare Company's show The Bible: The Complete Word of God, would you yield to demands of a few that you not show any clips or screenshots of the play, because it is offensive? Would you, like the Guardian, depict Serrano's "piss Christ" in covering the controversy over it?

2. At what point is a group big enough, or its claim of violence loud enough, for you to censor content based upon it? The United Kingdom has a significant American expat community. If I get enough of them to say that depictions of burning the American flag are offensive, will you avoid showing that on the news?

3. Does the safety of your employees, or of bystanders, play any role in your decision? Are claims of offense by some groups more likely to be accompanied by death threats and even violence?

4. If the answer to 3 is "yes," isn't that news?

5. For two years — here and here — I have done an annual review of how "blasphemy" like depicting Mohammed is treated both by states and, occasionally, by mobs. I submit that evidence shows that the notion of blasphemy — primarily, though not exclusively, as defined by Islam — has been used as a justification for abuse of minorities and the powerless. Have you considered whether your decision to yield to blasphemy norms and censor content makes you a party to that norm, and an implicit supporter of that abuse?

Some of those questions may be offensive to some of your viewers. I can show you how to black them out if you like.

70 Comments

Supreme Court's Air Wisconsin Case Is About Routine Defamation Principles, Not The Security State

Law

Yesterday the United States Supreme Court overturned a $1.4 million defamation judgment William Hoeper won against Air Wisconsin Airlines. Hoeper, a pilot, lost his temper during a training exercise; Wisconsin Air personnel reported him to the TSA as "unstable" and as a potential threat. Hoeper sued, and a jury found that Wisconsin Air had defamed him.

The Supreme Court overturned the verdict under Title 44, United States Code, section 44941, a federal statute that grants partial immunity to airlines that report "suspicious" behavior to law enforcement.

It's tempting — particularly if like me you are very critical of the TSA and its role in the Security State — to see this as further encroachment on liberties in the name of the Great War on Terror. But it's actually a fairly straightforward application of mundane defamation law.

As the Supreme Court points out, Section 44941 doesn't make all airline communications about perceived threats immune to suit. It carves out what in defamation law is called malice:

(b) Application.—Subsection (a) shall not apply to—

(1) any disclosure made with actual knowledge that the disclosure was false, inaccurate, or misleading; or

(2) any disclosure made with reckless disregard as to the truth or falsity of that disclosure.

This exception incorporates the New York Times v. Sullivan standard of proof that governs defamation claims made by public figures. In effect, because Congress didn't want airlines to worry about defamation liability when deciding whether to report "suspicious" passenger behavior, Congress gave airlines a limited privilege similar to what they would enjoy if they were talking about a public official or public figure.

You might disagree with Congress' decision to encourage reports of "suspicious" behavior by making it difficult to prove a defamation claim based on such reports. But that decision is not unusual. Many jurisdictions have statutory privileges that make it difficult to sue someone for defamation for reporting you to law enforcement. In some jurisdictions — like California — the privilege is absolute, meaning you can't sue someone for defamation for reporting you to the cops at all, even if you can prove they knew the report was false. (You might be able to sue for malicious prosecution.) States that pass such laws have decided that (1) they want people to feel free to report suspected wrongdoing to the police, and (2) absent a privilege it is too easy to use defamation claims to harass opponents for reporting wrongdoing. This is a routine legislative judgment, and Section 44941 is a typical application of it. In California and some other jurisdictions Hoeper's defamation claim would have failed right out of the gate even if Congress hadn't passed Section 44941.

The Supreme Court decided that the trial court didn't apply Section 44941 correctly because (1) it did not tell the jury that they had to find that Air Wisconsin's statements about Hoeper were false, and (2) it did not tell the jury that they had to find that Air Wisconsin's statements were materially false, that is, false in substantial and meaningful respects. These, too, are rather mundane applications of familiar defamation law principles.

On the first point, the Supreme Court cleared up a remote and theoretical ambiguity about the Sullivan malice standard: could a defendant commit defamation if they said something true recklessly, without a basis for thinking that it was true? Not surprisingly — given the centrality of truth as a defense in our First Amendment jurisprudence — the Supreme Court said no. To prove defamation under the Sullivan standard, you must prove the statement was false.

On the second point, the Supreme Court revisited familiar ground to rule that speech is only defamatory if it is materially — that is, meaningfully — false. The court noted that it had previously explained this in Masson v. New Yorker Magazine in 1991, when it ruled that making up quotes in an interview was only defamatory if the made-up quotes gave a significantly different meaning to the subject's words. This is sometimes called the "gist" or "sting" doctrine. This time the Court summarized:

As we explained in Masson, “[m]inor inaccuracies do not amount to falsity so long as ‘the substance, the gist,the sting, of the libelous charge be justified.’” Ibid. A “statement is not considered false unless it ‘would have a different effect on the mind of the reader from that which the pleaded truth would have produced.’”

Put another way, if I rob three banks with a pistol, and you report that I robbed four banks with a shotgun, it's unlikely that your statement will be treated as defamation, because the "sting" of your words is true — I committed armed robbery. Here, the Supreme Court decided that the "gist" or "sting" of Air Wisconsin's words about Hoeper were true, so there was no materially falsity. Three justices, dissenting in part, said the jury should decide whether the statements were materially false or not.

In short, though the circumstances of the case involved the TSA and security issues, the defamation principles in play did not. This is a straightforward and reasonable application of First Amendment law.

JP Jassy offers his thoughts as well.

36 Comments

What Dinesh D'Souza Would Have To Prove To Establish Unconstitutional Selective Prosecution

Politics & Current Events

Conservative author and speaker Dinesh D'Souza has been indicted in federal court in New York for campaign finance violations. More specifically, the feds have charged D'Souza with what is frequently called donation laundering. They assert that he reimbursed other for their donations to his chosen United States Senate candidate, thereby exceeding the statutory limit on personal donations. They also assert that he caused a false statement to be submitted to the feds, in that as a result of the alleged donation laundering the candidate's Federal Elections Commission statement identifying donors was rendered inaccurate.

Some people are suspicious that D'Souza is being singled out for his strong criticism of the Obama Administration, including his polemical documentary "2016: Obama's America." I hold no brief for D'Souza — I find him to be a crass, Coulteresque, unconvincing bomb-thrower. But I do not find it difficult to believe that the United States Department of Justice would single out an American for prosecution based on political views that are unpopular or offensive to those in power. My view is absolutely not limited to the Department of Justice under this administration. Selection of anyone for prosecution based on their views — whether I like their views or not — is an abhorent abuse of power that could easily be turned upon me or upon people with views I like.

A federal defendant who feels targeted based on protected speech may file a motion to dismiss the case for "selective prosecution." But it's a very difficult motion to win.

Federal prosecutors have extraordinary broad discretion in deciding whom to prosecute. However, they can't target people for prosecution based on constitutionally prohibited factors:

As we have noted in a slightly different context, however, although prosecutorial discretion is broad, it is not “ ‘unfettered.’ Selectivity in the enforcement of criminal laws is … subject to constitutional constraints.” United States v. Batchelder, 442 U.S. 114, 125, 99 S.Ct. 2198, 2205, 60 L.Ed.2d 755 (1979) (footnote omitted). In particular, the decision to prosecute may not be “ ‘deliberately based upon an unjustifiable standard such as race, religion, or other arbitrary classification,’ ” Bordenkircher v. Hayes, supra, 434 U.S., at 364, 98 S.Ct., at 668, quoting Oyler v. Boles, 368 U.S. 448, 456, 82 S.Ct. 501, 505, 7 L.Ed.2d 446 (1962), including the exercise of protected statutory and constitutional rights, see United States v. Goodwin, supra, 457 U.S., at 372, 102 S.Ct., at 2488.

Even though prosecution based on impermissible factors like race or protected speech is prohibited, the standard for proving it is high. The Supreme Court has announced that prosecutorial decisions are cloaked with a "presumption of regularity," and that courts must "presume" they have acted rightly absent "clear" evidence of discriminatory targeting. The Supreme Court explains:

Judicial deference to the decisions of these executive officers rests in part on an assessment of the relative competence of prosecutors and courts. “Such factors as the strength of the case, the prosecution's general deterrence value, the Government's enforcement priorities, and the case's relationship to the Government's overall enforcement plan are not readily susceptible to the kind of analysis the courts are competent to undertake.” Id., at 607, 105 S.Ct., at 1530. It also stems from a concern not to unnecessarily impair the performance of a core executive constitutional function. “Examining the basis of a prosecution delays the criminal proceeding, threatens to chill law enforcement by subjecting the prosecutor's motives and decisionmaking to outside inquiry, and may undermine prosecutorial effectiveness by revealing the Government's enforcement policy.” Ibid.

Sometimes, when you devote so much concern to the state's interest in unfettered prosecution, there's not much concern left for the defendant. Judges are only human, after all.

Under this regime, to show selective prosecution, a defendant must establish by "clear" evidence that "similarly situated individuals" without the prohibited characteristic were not prosecuted, and that the motive in this case was impermissibe. In a case alleging racial selective prosecution the defendant would have to show similarly situated people of a different race weren't prosecuted. In a case like Mr. D'Souza's the defendant would have to show both that (1) similarly situated people who didn't engage in the protected speech weren't prosecuted, and (2) the decision to prosecute was based on animus towards the protected speech. This is a tremendously difficult standard to meet. How is a defendant supposed to know whether other people have committed the same crime and been passed over by the government, particularly when the government's investigations are secret and when the conduct in question is difficult to detect?

A defendant can demand discovery from the government about whether it has passed over other people who committed the crime. But the Supreme Court has set a high bar for entitlement to such discovery. To force the government to produce statistics and other information about its prosecution decisions, the defendant must produce "some" evidence in support of both prongs of the selective prosecution test — that is, some evidence that others similarly situated are not being prosecuted, and some evidence of improper motive. In U.S. v. Armstrong in 1996, the Supreme Court held that it was not enough that defense lawyers in Los Angeles showed that the defendants in federal crack cocaine cases were almost all African-American; to get discovery they also had to supply some evidence that the feds were passing over white defendants.

In short, a mere suspicious appearance — like the indictment of a vigorous critic of the administration — is not enough to show unconstitutionally selective prosecution. D'Souza's attorneys should certainly explore the issue, but it will not be an easy motion to win. The system only nominally protects rights; for the most part the system protects the system.

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Texas Attorney Carl David Ceder Makes Bogus Libel Threat Against Scott Greenfield of Simple Justice

Law

"Never miss a good chance to shut up." "If you find yourself in a hole, stop digging." "It's not the crime, it's the cover-up." "First, do no harm." These familiar sayings all carry the germ of the same simple but true idea: when you're in a jam, it's easy to make it worse, so try not to.

Plano, Texas attorney Carl David Ceder ought to familiarize himself with that rule.

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The Self-Perpetuating Logic Of Censorship

Law, Politics & Current Events

When I oppose things like European prohibitions on denying the Holocaust, or "hate speech" laws, people tell me that I Don't Get It, that these laws address unique situations and unique historical dilemmas, and that they do not represent a wholesale abandonment of the value of freedom of expression.

The problem is that censorship is legally and culturally self-perpetuating. Once you accept that it is legitimate to ban speech because it is offensive, or ban ideas as historically dangerous, that decision is used both as a legal precedent and — invoking the values of fairness and equality — as an argument for banning other offensive speech.

This week's case in point: the United Kingdom. Maajid Nawaz, a Liberal Democrat parliamentary candidate, tweeted a link to the cartoon Jesus and Mo. That cartoon depicts Jesus and Mohammed having conversations, often in a way that subverts religious doctrine and attitudes. I have previously written about how it has led to calls for censorship over in the U.K. This time, Nawaz' tweet — which said quite reasonably "This is not offensive & I'm sure God is greater than to feel threatened by it" — has led to death threats and abuse.

There's a petition on the ever-optimistic Change.org that illustrates my point. Demanding that Nawaz be removed as a candidate, the petitioners ask this:

2. Is it right that questioning the official 6 million figure in favour of e.g. 4 million, is tantamount to Holocaust Denial which is a criminal offence in Europe?

3. Was is right that the play Behzti was cancelled due to the sensitivities in the Sikh community?

4. Or that the poem "Education for Leisure" was removed from the AQA's (Assessment and Qualifications Alliance – an Awarding Body for GCSEs and A-Levels) Anthology, after complaints were received?

Though the argument requests action from a party, not from a government, it mirrors the argument we see put to the government all the time. Muslims demanding official censorship have have asserted this justification for censorship before. Why shouldn't they? It's an appeal to the Western value of equality and fairness. How can we be solicitous of offense to one group, but not offense to another? We're not racists or something, are we? Are we only protecting the people we like?

We can't control how other people will feel, or what they will find offensive. We can only govern what we do about it. We can only condition people to expect from us defense or free expression, on the one hand, or official and punitive solicitude to hurt feelings, on the other. Once we start using the force of the state to punish people for being offensive, we should expect everyone who has ever been offended to come knocking on our door, asking "What about me? Don't I have feelings?"

Kudos, at least, to the extent these protesters are only demanding party action — which is a form of party politics and freedom of association — and not state punitive action. But the Liberal Democrats might want to consider what they'll be asked to punish next.

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Colorado State University-Pueblo Vigilant Against Metaphor, Allusion, Unpleasant Historical References

Law, WTF?

Recently Colorado State University-Pueblo took strong and immediate action to contain what it suggested was a possible violent threat to campus. President Lesley Di Mare explained:

"Considering the lessons we’ve all learned from Columbine, Virginia Tech, and more recently Arapahoe High School, I can only say that the security of our students, faculty, and staff are our top priority," Di Mare said. "CSU-Pueblo is facing some budget challenges right now, which has sparked impassioned criticism and debate across our campus community. That’s entirely appropriate, and everyone on campus – no matter how you feel about the challenges at hand – should be able to engage in that activity in an environment that is free of intimidation, harassment, and threats. CSU-Pueblo has a wonderful and vibrant community, and the university has a bright future. I’m confident that we can solve our challenges with respectful debate and creative problem-solving so that we can focus on building that future together."

My God! Columbine? Virginia Tech? Arapahoe High School? What happened? Did somebody send a death threat? Did an angry student bring a gun to school? Were there rumors of a massacre?

No. A professor criticized staffing cuts and rhetorically compared them to historical abuses of power.

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Protecting The Free Speech of Censors: The Crystal Cox Saga

Law

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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From the "lol journalism" Files: No, The Defamation Case Against Courtney Love Will Not Change Twitter

Law

An appallingly large percentage of journalism about the legal system sucks.

There are exceptions — there are legal journalists I respect, who take pains to get it right — but for the most part the media gets coverage of both criminal and civil cases badly wrong. (I am aware of Gell-Mann Amnesia and therefore please do not infer that I believe other coverage is necessarily more reliable.)

Case in point: coverage of a defamation suit against Courtney Love. Take ABC's coverage. ABC starts with this:

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Update: The Quantum of Recovery For Rape-and-Torture-By-Police In New Mexico Is $1.6 Million

Effluvia

Back in November I wrote about David Eckert of New Mexico. As you may recall, City of Deming police officers stopped Eckert for running a stop sign, and together with Hidalgo County Sheriff's Deputies concluded that there was probable cause to think that he was smuggling drugs in his anus. As I wrote back then, that conclusion was based on the following fanciful chain of supposition:

That his hands were shaking and he avoided eye contact during a traffic stop;

He refused to consent to a search of his person;

He stood erect with his legs together;

No drugs were found in his car or in a pat-down of him (police pat-downs for weapons often turn up drugs, which mysteriously feel like dangerous weapons when touched by police, or which are immediately identifiable as drugs when touched by police);

A drug dog (with no information given about the dog's training or qualifications or success rate) "alerted" to his car seat (though no drugs were found in his car); and

An unidentified Hidalgo County K-9 officer asserted, without any specificity, that Eckert had previously hidden drugs in his anus.

Based on those "facts," and with the approval of Deputy District Attorney Daniel Dougherty, the police sought and obtained a warrant to search Mr. Eckert's anus. The following rape and torture — and I use those words deliberately and advisedly — followed:

1. Eckert's abdominal area was x-rayed; no narcotics were found.

2. Doctors then performed an exam of Eckert's anus with their fingers; no narcotics were found.

3. Doctors performed a second exam of Eckert's anus with their fingers; no narcotics were found.

4. Doctors penetrated Eckert's anus to insert an enema. Eckert was forced to defecate in front of doctors and police officers. Eckert watched as doctors searched his stool. No narcotics were found.

5. Doctors penetrated Eckert's anus to insert an enema a second time. Eckert was forced to defecate in front of doctors and police officers. Eckert watched as doctors searched his stool. No narcotics were found.

6. Doctors penetrated Eckert's anus to insert an enema a third time. Eckert was forced to defecate in front of doctors and police officers. Eckert watched as doctors searched his stool. No narcotics were found.

7. Doctors then x-rayed Eckert again; no narcotics were found.

8. Doctors prepared Eckert for surgery, sedated him, and then performed a colonoscopy where a scope with a camera was inserted into Eckert's anus, rectum, colon, and large intestines. No narcotics were found.

No. No narcotics were found.

Are there consequences to that sort of conduct? Sort of. Eckert has settled with the City of Deming, the County of Hidalgo, Officers Bobby Orosco and Robert Chavez, and Deputies David Arredondo, Patrick Green and Robert Rodriguez. He has agreed to dismiss his lawsuit against them. he will be paid $1.6 million — it's not clear how that is apportioned between the City and the County, but you can assume that New Mexico taxpayers, not the law enforcement officers who engaged in a conspiracy to commit torture and rape, will foot the bill.

Deputy District Attorney Daniel Dougherty has a motion to dismiss pending. He will probably win it. Prosecutorial immunity is most likely broad enough, under current law, to cover approving a transparently ridiculous warrant application seeking to torture and rape a man based on fluff. Nice work if you can get it and you are in to that sort of thing, I suppose.

Doctor Robert Wilcox of the Gila Medical Center — who played the "bring out the gimp" role in this rape and torture scenario — has also filed a motion to dismiss, which in part argues that he is entitled to immunity because he was following orders — the orders of the police and the judicially approved search warrant. We'll see how that works out for him.

The $1.6 million was offered and accepted quite swiftly. That's a substantial amount of money for a case not involving death or dismemberment, especially during times when local governments don't have a lot of money. It suggests to me that the City and County thought they had a terrible case. It makes me even more suspicious that the key "fact" of the warrant application — that some unspecified deputy told the affiant that Mr. Eckert had smuggled drugs in his anus at some unspecified time before — was knowingly fabricated by somebody in the chain.

This case sickened me. But I can't say that it surprised me. The only thing out of it that would surprise me is if any of the individual police officers or sheriff's deputies faced any genuine significant consequences arising from it.

Whether or not you agree with my legal criticism of the sufficiency of the warrant application, bear this in mind: because of the mindset promoted by the Great War on Drugs, these cops, this deputy DA, this judge, and this doctor all reached the same moral conclusion. Their moral conclusion was that because they posited that this man had drugs in his anus — necessarily the small amount that could fit there — it was necessary and appropriate and acceptable forcibly and repeatedly to probe his anus, forcibly to give him an enema, to x-ray him, to sedate him, and to perform a colonoscopy on him under sedation. That's the mindset of the Great War on Drugs. It's perverted and despicable. It's subhuman. Do you support it?

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