So, the feds — more specifically, the U.S. Attorney for the Eastern District of Virginia, assisted by attorneys from the Department of Justice — have secured an indictment of many individual and entity defendants associated with the site Megaupload. The indictment is all over the internet, including here.

A few comments from the perspective of someone who used to indict people for the feds for a living, and now defends people indicted by the feds for a living:

1. The notion that the feds scheduled this as a response to the SOPA/PIPA blackout day is highly unlikely. The grand jury returned the indictment weeks ago and the feds obtained an order sealing it until they arranged the arrests and searches. A multi-country takedown like this is a logistical nightmare involving hundreds of agents and dozens of court filings; it's not something that can be moved on a dime, and appearances aside, I'd rate it as very highly unlikely that it was timed as some sort of response to anti-SOPA protests.

2. Please, for God's sake, so the heads of federal criminal practitioners don't explode, remember that there is little relationship between the maximum sentence that the media (and the prosecutors) announce and the actual probable sentence. The two might coincide, but it's rare. Federal sentences are strongly influenced (but no longer strictly determined) by the arcane United States Sentencing Guidelines. To approximate the experience of calculating a recommended sentence under the Guidelines, attempt to complete a multinational corporation's tax return whilst guiding an overcaffinated min-maxing twelve-year-old through rolling up a Runequest character.

3. The charges are as follows:
a. Conspiracy to commit racketeering under 18 U.S.C. § 1962(d), commonly known as RICO.
b. Conspiracy under the generic federal conspiracy statute, 18 U.S.C. § 371, to commit criminal copyright infringement in violation of 17 U.S.C. § 506(a)(1)(A) and 18 U.S.C. § 2319(d)(2).
c. Conspiracy to commit money laundering in violation of 18 U.S.C. § 1956(h).
d. Criminal copyright infringement in violation of 17 U.S.C. § 506(a)(1)(A) and 18 U.S.C. § 2319(d)(2) and aiding and abetting the same under 18 U.S.C. § 2. These are charged in two separate counts to address the feds' two separate theories of how the defendants violated the relevant statutes.

4. All of those statutes have well-established elements — that is, the building blocks that the feds must prove beyond a reasonable doubt to establish the defendants' guilt. If there is interest I will go into the elements in depth. For now let me focus on one — the plain-vanilla federal conspiracy statute, 18 U.S.C. § 371. Under the Ninth Circuit's model jury instruction (which I link because the Fourth Circuit, in its wisdom, has elected not to publish model jury instructions) describes the elements like this:

The defendant is charged in [Count _______ of] the indictment with conspiring to _______ in violation of Section _______ of Title ___ of the United States Code. In order for the defendant to be found guilty of that charge, the government must prove each of the following elements beyond a reasonable doubt:

First, beginning on or about [date], and ending on or about [date], there was an agreement between two or more persons to commit at least one crime as charged in the indictment; [and]

Second, the defendant became a member of the conspiracy knowing of at least one of its objects and intending to help accomplish it [and;]

Third, one of the members of the conspiracy performed at least one overt act for the purpose of carrying out the conspiracy, with all of you agreeing on a particular overt act that you find was committed.

I shall discuss with you briefly the law relating to each of these elements.

A conspiracy is a kind of criminal partnership—an agreement of two or more persons to commit one or more crimes. The crime of conspiracy is the agreement to do something unlawful; it does not matter whether the crime agreed upon was committed.

For a conspiracy to have existed, it is not necessary that the conspirators made a formal agreement or that they agreed on every detail of the conspiracy. It is not enough, however, that they simply met, discussed matters of common interest, acted in similar ways, or perhaps helped one another. You must find that there was a plan to commit at least one of the crimes alleged in the indictment as an object of the conspiracy with all of you agreeing as to the particular crime which the conspirators agreed to commit.

One becomes a member of a conspiracy by willfully participating in the unlawful plan with the intent to advance or further some object or purpose of the conspiracy, even though the person does not have full knowledge of all the details of the conspiracy. Furthermore, one who willfully joins an existing conspiracy is as responsible for it as the originators. On the other hand, one who has no knowledge of a conspiracy, but happens to act in a way which furthers some object or purpose of the conspiracy, does not thereby become a conspirator. Similarly, a person does not become a conspirator merely by associating with one or more persons who are conspirators, nor merely by knowing that a conspiracy exists.

An overt act does not itself have to be unlawful. A lawful act may be an element of a conspiracy if it was done for the purpose of carrying out the conspiracy. The government is not required to prove that the defendant personally did one of the overt acts.

So: as you can see, the federal conspiracy statute is very broad, requiring that the charged individual himself or herself do little more than join an unlawful agreement.

5. The "overt act" requirement is a favorite of the feds, and the cause of much mischief. Note that the Megaupload indictment is 72 pages long. Much of that is taken up by a recitation of "overt acts" in furtherance of the conspiracy. The feds traditionally use the overt act requirement as an excuse to frame their indictments as recitations of the evidence in support of their case, detailing what happened and what evidence they have in gratuitous detail. Note, for example, the multiple quotations of seemingly incriminating emails in this indictment, recited on the pretext that sending the email was an overt act. Why do this? Well, it makes for good press. It's an avenue for providing many factual details to reporters without running afoul of such modest limits on press communications as the courts and DoJ rules impose. Moreover, many courts will read the entire indictment to a jury at the start of the case — it's like a free extra opening statement. Some courts will even let jurors take the indictment into the jury room with them.

Some judges see through this and don't care for it. The late William Matthew Byrne once yelled at me for the better part of half an hour on this subject, upset that my office had listed overt acts in a drug conspiracy indictment. He was particularly annoyed because the drug conspiracy statute didn't even require an overt act showing at the time. He saw it as a transparent ploy to influence press and jurors, and believed that it violated Federal Rule of Criminal Procedure 7(c)(1), which calls for a "plain, concise, and definite written statement of the essential facts constituting the offense charged," not the prosecutor's LiveJournal page. I viewed the experience as (1) an occasion for development of my moral character, and (2) an occasion for learning to stand there while a federal judge, red-faced, shouts at you whilst you nod and take it and think about pending in limine motions and the Heiligenstadt Testament and reverse cowgirl and the merits of dual-classing (your dwell-upon subjects during judicial tirades may vary).

6. The New Zealand extradition treaty looks fun; it will be interesting to see how it pays out.

More to follow next week.

You might have noticed that Popehat blacked out yesterday to join the protest against SOPA/PIPA. (The technical aspect of that effort was all David's work; if I had tried it . . . well, suffice it to say all these posts might have been lost, like tears in rain, etc.) The widespread protest seemed to succeed at its aim of raising awareness and led to defections from the ranks of SOPA/PIPA supporters.

All of that seemingly effective advocacy raises a question: did its participants have a First Amendment right to protest that way?

For folks like us at Popehat — mere individuals, not corporations or partnerships (we're more like an unincorporated mystical brotherhood) — the answer is rather clearly yes. Few would dispute it.

But for entities like Google, or Mozilla, or the Wikimedia Foundation, the answer is apparently unsettled in the minds of some of you.

Some of the criticism began with the Citizens United case, which held that the McCain–Feingold Act violated the First Amendment to the extent it purported to prohibit a non-profit corporation from producing and airing a film attacking Hillary Clinton. Elements of the Occupy Wall Street campaign took up the cry, asserting that corporations are not people and only people, not corporations, have constitutional rights.

These sentiments seemed largely absent yesterday when various business entities — from non-profits like Wikimedia Foundation to for-profits like Google — expressed themselves in opposition to SOPA/PIPA.

So, to critics of Citizens United, I have a question: should those business entities have had a right to engage in SOPA/PIPA protests like they did? If so, what is the source of that right, and by what mechanism is it vindicated?

After all, not everyone was happy with the corporate participation in the protest. As I discussed on Tuesday, the MPAA broadly hinted that such expression is permitted only at the sufferance of government and its favored lobbyists:

It is also an abuse of power given the freedoms these companies enjoy in the marketplace today. It’s a dangerous and troubling development when the platforms that serve as gateways to information intentionally skew the facts to incite their users in order to further their corporate interests.

Note how the MPAA cloaks itself in populist anti-corporate rhetoric, hoping you are too intractably stupid to grasp that the MPAA is the ultimate corporate lobbyist asking Congress to pass sweeping legislation favoring it over the rights of citizens and other corporations. Note also the MPAA's use of the core idea underlying opposition to Citizens United: incitement, the concept that corporate speech is illegitimate and dangerous because it leads citizens into false consciousness so that they vote and act in ways we don't like.

But the MPAA is just an industry mouthpiece. Surely the media — which prizes freedom of expression above all else — will reject this narrative, right? Wrong — or, at least, wrong in some cases, as with the sad rag-peddlers at the Boston Herald:

Within hours of the online protest, political supporters of the bill — including the usually sensible Sen. Marco Rubio (R-Fla.) — began dropping like flies, thus proving how very powerful these cyber-bullies can be.

"Cyber-bullying" is, of course, one of those Humpty-Dumpty categorical terms that we use when we disagree with speech but can't articulate a principled basis for saying it lies outside the protection of the First Amendment.

So: many were happy with the SOPA/PIPA protests, but some weren't. Some of the unhappy people are powerful — like the MPAA and its gang of censorship apologists.

If you think that Citizens United was wrong — if you think that corporations shouldn't have First Amendment rights — then why, exactly, can't the government punish Wikimedia Foundation or Google or any other non-human entity for speech that offended its favored lobbyist and contributor, the MPAA?

(Note that I'm addressing people who say corporations have no First Amendment rights, not people who say campaign donation restrictions do not violate the First Amendment because money is not speech, which is an entirely different ranty post.)

So:

1. If corporations have no First Amendment rights, why can't federal or state or local governments single out, say, Wikimedia Foundation for its SOPA/PIPA blackout? Why can't they penalize or fine or even dissolve it? Why can't they single Wikimedia Foundation out for disproportionate enforcement of unrelated laws in retaliation for disfavored speech?

2. If your answer is "the political process — the voice of the people — will stop them from suppressing expression in this way," what is the historical basis in America for the assertion that the political process, standing alone, without judicial review based upon application of constitutional rights, is sufficient to stop governmental overreach? How's that working out for, say, the rights implicated by the War on Drugs, or the post-9/11 Security State? How well does the political process work to protect freedom of expression from government efforts to, say, ban mean pictures on the internet? The political process will protect corporations from governmental retaliation against disfavored expression? Are you shitting me?

3. If courts adopt your view — if the Supreme Court says "corporations have no First Amendment rights" — is it really your view that government restrictions on corporate speech will be imposed in a neutral and even-handed manner? Really? You think that corporate influence will be so driven from politics that, for instance, the MPAA and RIAA won't be able to induce the government to retaliate against the Wikimedia Foundations and Googles of the world? Again, on what historical precedent — on what logic — do you premise that belief?

4. You say that people, not corporations, have First Amendment rights. Fine. Tell me: as a person, how do you plan to exercise your freedom of speech if corporate venues for doing so may be restricted by the government? SOPA/PIPA is actually an excellent example of this. SOPA/PIPA did not merely attack accused pirates directly — it used ISPs as its minions. SOPA/PIPA threaten ISPs and major web sites — corporations — with dramatic consequences if they so much as link to sites that the government (or its preferred lobbyists) disfavor. So. If the government is allowed to use this method, what, exactly, protects us when the government decides to bully corporations into making us vanish from the internet? If the government says "you writers at Popehat have First Amendment rights; we can't punish you. But you, Google, you have no First Amendment rights; you have no right to list Popehat in search results. You, ISP, you have no First Amendment rights, you have no right to host sites like Popehat. You, Major Publisher, you have no First Amendment rights, you have no right to publish Popehat's exciting upcoming book, In Which Snark Substitutes For Grammar And Serious Analysis: The Taint-Snorting.

For that last, you might say, "they can't do that, because you have First Amendment rights, and those corporations are just the vehicles through which you are exercising those rights." To which I say: exactly. That's what entities are — vehicles through which people do things. Sometimes they are objectionable things, sometimes they are stupid things, soometimes they are things that, if accepted, would lead to deplorable results. But entities — corporations — are vehicles for human activity, including expression.

So. Advocates of the "corporations have no First Amendment rights" position: why can't the government punish the corporations that blacked out yesterday?

Back in December I wrote about Rhys Morgan, the 17-year-old British skeptic-blogger who stood up to legal threats from the transcendentally nutty fake lawyer Marc Stephens. As I said then, the internet needs more people — whether 17 or 70 — like Rhys, who are willing to stand up against such censorious intimidation tactics.

But standing up is sometimes easier said than done. Legal threats — like physical threats — can have real-world consequences. Rhys is learning that this week, as online threats and complaints have led him to censor his Facebook page upon pain of suspension or expulsion from his school.

Rhys is in what we in America would call high school. In the U.K. I believe they call it Secondary School or Twentieth Form or the loo or lorry or Toad in the Hole or Spotted Dick or something. Recently Rhys saw fit to comment upon something that I discussed here — a controversy at University College of London regarding a cartoon of Mohammed and Jesus, which became embroiled in a discussion of the imagined right not to be offended. Rhys — both as a skeptic and as a supporter of free expression — changed his Facebook profile picture to the cartoon in solidarity with the UCL skeptics.

Then all hell broke loose. Rhys was deluged with demands to take the picture down, insults, and threats. His school got involved, and threatened him with expulsion or suspension — apparently upon the theory that his actions his expression may have brought the dispute into the school, and because his posting causes offense to some classmates. Rhys' critics are employing the classic categorical dodge I've written about, saying that his actions have "nothing to do with freedom of expression" — because, see, if we say it's offensive, if we say it's "hate speech," then it no longer belongs in the free speech box.

Rhys is experiencing harassment and suppression in the U.K., but his situation reflects a universal problem, and one that is at the cutting edge of First Amendment litigation in the United States. The extent to which American public schools can punish students for out-of-school speech — especially speech on the internet — is in flux. First, student free speech rights in general seem to be on the wane, declining from a high-water mark with Tinker as the Supreme Court has given school administrators more discretion to determine what speech is "disruptive" and to police "inappropriate" speech at school-related events. The Supreme Court has not yet applied this line of cases to student expression on social media or other internet venues; just today, in a move that may or may not be significant, the Court declined to review a number of Circuit cases involving off-campus internet speech, leaving the area in doubt.

Though it takes place in another country under notably different legal standards, Rhys' situation perfectly illustrates the dangers of giving schools an unrestricted and unprincipled license to police students' online speech based on their "disruptive" or "offensive" qualities. A compliant school gives Rhys' critics a perfect heckler's veto: merely by attacking, harassing, and threatening him online, even anonymously, they can convince the school that his expression is "disruptive," and therefore make his school feel justified in demanding that he change his Facebook profile to satisfy his censors. Similarly, an utterly subjective and unprincipled notion of "offense" — one that focuses on the feelings of people who voluntarily visit Rhys' Facebook page, and not on the question of whether Rhys is doing anything to interfere with students' day-to-day activities at school — allows anyone who disagrees with Rhys to demand that the school censor him by making the irrefutable claim "this offends me." Under this arrangement, students can only write online under the sufferance of their most censorious critics.

Yet as I suggested before, Rhys Morgan is precisely the sort of student that should thrill schools: engaged in important adult issues, curious, expressive, self-motivated, and involved in larger communities of ideas. Don't we want 17-year-olds thinking and writing about subjects that involve controversy? Don't we want them to engage the big ideas that historically have caused division? Or do we want them to proceed ploddingly from one standardized test to the next, concerned only with dining on the reheated and prefabricated meals that schools put before them, never dabbling in anything that might offend or cause controversy or headlines? Of course, young people who explore and learn and engage and write on their own are independent in ways that might not please people whose power depends upon them acting like junior stenographers. Could there be something about Rhys Morgan — something more than posting a cartoon depicting Mohammed — that threatens and offends modern "education professionals" even more than it angers and offends interest groups? Could part of the conflict between free speech and "disruption" be not so much about harmony on campus, but about "professionals" seeking control over the ways that students think, interact, and learn?

Could one of our readers — perhaps someone from the great state of Florida, from whence this regulatory situation hails — point me to some context or explanation that makes this less ridiculous than it seems?

Because it looks ppretty freaking ridiculous.

(Click to embiggen)

Remember: the regulatory state is its own justification and its own constituent.

Hat tip to reader Dustin.

Today I was resting my eyes on the couch when I got an email tip that someone was making frankly nutty legal threats against a science blogger. There's a blogger in trouble somewhere! I'm like the Wonder Pets, only with 1.375 times more sexual magnetism.

Time for the Popehat Signal.

I investigated, and found that the blogger had written a clear and really extraordinarily mild statement of opinion, and the subject of opinion had posted legal threats on the blog and sent profane, threatening, and frankly disturbing threats by email. The blogger's comment is indisputably protected by the First Amendment and the threat is freakishly frivolous.

I've agreed to help the blogger pro bono. The potential plaintiff has threatened a defamation suit in Texas. Given the communications, it's entirely possible that the threat represents bluster or delusion. But if they are malicious and unethical enough to pull the trigger, we'll need boots on the ground in the Great State of Texas. I'll still do most of the work. Maybe we can test the new Anti-SLAPP statute!

So. Can any Texas lawyers, or people who know Texas lawyers, help us out?

Update: Thanks to all of the lawyers who have responded in the comments or by email, and to those who have suggested leads. Texas attorney Gary Krupkin, an estimable and formidable defender of the First Amendment, has stepped in to act as Texas counsel. Please join me in thanking him: his willingness to help represents the best tradition of service to beleaguered clients and to the First Amendment, and shows how together we can help bloggers resist frivolous legal threats.

There will be an update with a description of the situation only if the best interests of the client warrant. Thanks for understanding.

If you've followed the public discussion over the purported connection between vaccines and autism, you know the name Andrew Wakefield. Wakefield's 1998 article in Lancet purported to find a connection and has long been a battle-standard of anti-vaxxers. Wakefield's purported findings were later widely discredited, and Lancet retracted the original article.

This week Andrew Wakefield sued some of his critics in state court in Texas. Specifically, he sued the British Medical Journal, or "BMJ," and writer Brian Deer. The lawsuit accuses BMJ and Deer of defamation for their vigorous criticism of Wakefield, his publications, his studies, and his claims.

My purpose in this post is not to review what, at the risk of using the term loosely, I will call the "scientific dispute"; others far better qualified than I have discussed Wakefield's record exhaustively. Rather, I have two other purposes: to discuss an attribute of the modern "alternative" medicine movement, and to discuss the significance of Texas' new anti-SLAPP statute to this lawsuit.

First, the "alternative medicine" movement. I use that term to refer both to purveyors of treatments not generally accepted by Western medicine — naturopathy, homeopathy, etc. — and to refer to conspiracy-minded groups that believe that the FDA and "Big Pharma" and the Medical-Industrial Complex are concealing grave truths about Western medicine (like, for instance, the notion that vaccines cause autism).

At the risk of sounding unscientific, the alternative medicine movement strikes me as having a serious taste for censorship and an ingrained intolerance for dissent and criticism. I've written about it here: anti-vax lawyer Clifford Shoemaker's legal harassment of Neurodiversity blogger Kathleen Seidel, the British Chiropractic Association's failed crusade against Simon Singh, naturopath Christopher Maloney's feckless SLAPP threat against blogger Michael Hawkins, and even Marc Stephens lawyer-posing against critics of the Burzynski Clinic.

I realize that is a limited sample from which to draw conclusions, and that nobody has tested my thesis. But if purveyors of tinfoil-hat science have taught me anything, it is that (1) peer review is a hoax, and (2) all alternative medicine practitioners everywhere carry the diluted memory of these particular examples.

Second, the Texas suit by Wakefield will be an excellent opportunity to test Texas' new anti-SLAPP law. Anti-SLAPP laws, for those not familiar with them, are statutes allowing defendants who have been sued based on their speech to force the plaintiffs to establish they have a valid basis for their suit before going forward, and to collect attorney fees if the plaintiff fails. I am rather fond of them.

Anti-SLAPP laws vary from broad and useful to weak and nearly useless. Texas' statute appears to be one of the broadly written and strong ones. If BMJ and Deer decide to use it, here's how it will work:

1. BMJ and Deer have the initial burden of showing that the lawsuit is "based on, relates to, or is in response to" their exercise of their rights to free speech, petition, or association. Those terms are defined pleasingly broadly:

(2) ”Exercise of the right of association” means a communication between individuals who join together to collectively express, promote, pursue, or defend common interests.

(3) ”Exercise of the right of free speech” means a communication made in connection with a matter of public concern.

(4) ”Exercise of the right to petition” means any of the following:

(A) a communication in or pertaining to:

(i) a judicial proceeding;

(ii) an official proceeding, other than a judicial proceeding, to administer the law;

(iii) an executive or other proceeding before a department of the state or federal government or a subdivision of the state or federal government;

(iv) a legislative proceeding, including a proceeding of a legislative committee;

(v) a proceeding before an entity that requires by rule that public notice be given before proceedings of that entity;

(vi) a proceeding in or before a managing board of an educational or eleemosynary institution supported directly or indirectly from public revenue;

(vii) a proceeding of the governing body of any political subdivision of this state;

(viii) a report of or debate and statements made in a proceeding described by Subparagraph (iii), (iv), (v), (vi), or (vii); or

(ix) a public meeting dealing with a public purpose, including statements and discussions at the meeting or other matters of public concern occurring at the meeting;

(B) a communication in connection with an issue under consideration or review by a legislative, executive, judicial, or other governmental body or in another governmental or official proceeding;

(C) a communication that is reasonably likely to encourage consideration or review of an issue by a legislative, executive, judicial, or other governmental body or in another governmental or official proceeding;

(D) a communication reasonably likely to enlist public participation in an effort to effect consideration of an issue by a legislative, executive, judicial, or other governmental body or in another governmental or official proceeding; and

(E) any other communication that falls within the protection of the right to petition government under the Constitution of the United States or the constitution of this state.

2. BMJ and Deer should have no trouble whatsoever meeting that definition — the complaint targets speech about a classic matter of public concern. (Note that the statute does not say "protected by the First Amendment," meaning that Wakefield can't claim that their communications don't qualify because they were uttered in the United Kingdom.) Therefore, the statute requires the judge to dismiss the case unless Wakefield "establishes by clear and specific evidence a prima facie case for each essential element of the claim in question." What does that mean? Following California's model, it probably means that Wakefield must offer specific and admissible evidence that, if believed, would show he is entitled to relief and that the First Amendment or other legal doctrines do not protect the speech complained of. (Note that the First Amendment would protect the BMJ and Deer for these purposes because Wakefield is attempting to use a court — an instrumentality of state government — to punish speech.)

There are subtle differences between an anti-SLAPP motion and a motion to dismiss, sometimes called a demurrer. Generally a motion to dismiss must be based only on the four corners of the complaint — evidence is irrelevant, with a few narrow exceptions. By contrast, good anti-SLAPP statutes — like Texas' — allow the defendant to offer evidence. For instance, BMJ and Deer can submit the full text of the writings complained of so that the judge can evaluate them rather than the complaint's summary or characterization of them. This is particularly important when a defense is based, for instance, on asserting that a complained-of statement is a protected opinion, not a false statement of fact, when viewed in context. Submitting evidence can make it dramatically more difficult for a plaintiff to carry his burden. For instance, a defendant accused of a false statement against a public figure might submit a declaration explaining that he was repeating something heard from a reliable source, thus making it almost impossible to make a showing of malice.

3. If Wakefield can't carry that burden, the court must dismiss the complaint and award legal fees and costs to the defense.

I see one gateway legal issue complicating application of the new anti-SLAPP statute: personal jurisdiction. As The Skeptical Lawyer points out, it is questionable whether the Texas court has personal jurisdiction over Brits BMJ and Deer. This is a hot topic: by merely writing something published worldwide, do you subject yourself to jurisdiction wherever that thing is read, or wherever the subject lives? Hell, I sure hope not; that would be a ludicrous result. (Shame on you, Florida.)

Here's the complication: BMJ and Deer may not be able to file a SLAPP motion without subjecting themselves to the jurisdiction of the Texas court. I'm not a Texas lawyer, but in most jurisdictions, when you are contesting personal jurisdiction, you can only make a special appearance for purposes of filing a motion seeking to dismiss for lack of personal jurisdiction. If you make a broader appearance, courts often deem you to have consented to jurisdiction. Does that mean BMJ and Deer must first file a motion to dismiss for lack of personal jurisdiction, and then file a SLAPP motion if they lose? Maybe. Perhaps a Texas practitioner could chime in. For myself, I'd be inclined to remove the case to federal court based on diversity jurisdiction and litigate the issues there. I have nothing against Texas state courts, other than not particularly trusting Texas state courts. I'd rather address an issue like this in federal court, where judges have more manageable dockets, have more support from law clerks and staff, are more accustomed to resolving legally complex motion practice, and (in my opinion) tend on average to have a higher level of professionalism. Federal courts sitting in diversity apply state anti-SLAPP laws, so the defendants could still pursue that motion after they worked out the jurisdictional issue.

The Texas suit poses many other legal issues; The Skeptical Lawyer discusses some of them. It's one to watch. Stay tuned.

Edit: Orac on the science of it.

Edit 2: I completely forgot to give Liz a hat tip for pointing me to this; she's keeping a list of posts about it.

Yes, I will be discussing Joseph Rakofsky winning Popehat's 2011 Censorious Asshat of the Year Award soon. In the meantime, check out the Thomas Jefferson Center's list of 2011 Muzzles of the Year. For that matter, if you want to ruin your day and spike your blood pressure, check out their archive.

Radley Balko has posted the candidates for his 2011 Worst Prosecutor of the Year award. There's one silver lining in this dark, fetid cloud — it helps showcase the important work that Radley has done at The Agitator, Reason, and HuffPo in the course of covering our deeply troubled criminal justice system.

In every other way, the contest is deeply depressing. The criminal justice system relies upon prosecutors acting honestly and honorably. Too often, they don't.

Go read, throw up in your mouth a little, and vote on who is the worst. I couldn't decide. It made our Censorious Asshat of the Year contest seem like a ray of sunshine by comparison.

As our readers know, free speech — and various enemies thereof — is one of our very favorite topics here at Popehat. After a year of observing various attempts at censorship, I've decided to seek your input in selecting Popehat's "Censorious Asshat of the Year." (I first considered a more generic "Popehat's Asshat of the Year" contest, but soon realized that the eligible posts comprised roughly half of our work product. There may or may not be medication for that.)

Note that big-scale censors — leaders who killed dissidents, national political figures who pushed big and ominous censorship laws, and the like — aren't eligible. "Asshat Censor" requires a certain element of whimsy, fecklessness, and/or lack of actual power.  Also, I only included people on here if we contributed something to the discussion of their asshattery.

Without further ado, here are the candidates. The poll closes at 5:00 PST Friday:

Dr. Karin Calvo-Goller, for pursuing criminal libel charges in French court over a bad book review. In Aggravation: Forum-shopped to France. In Mitigation: Thanked me for my post.

Karen Spears Zacharias, for promoting muddle-headed hand-wringing about how satire can harm children. In Aggravation: Forced me to write poetry. In Mitigation: More a silly Mrs. Grundy/agony aunt figure than a censor, really.

The Federal Bureau of Investigation, for classifying Juggalos as a potentially dangerous gang. In Aggravation: renders assessment of truly dangerous groups properly classified as "gangs" less credible. In Mitigation: as a former federal prosecutor and current federal defense attorney, allow me to assure you that they really, really don't know better. The FBI, I mean. Possibly also the Juggalos.

Tennessee General Assembly Representative Charles Curtiss, for pimping a ridiculous no-mean-pictures cyberbullying bill and then defending it in very, very stupid terms. In Aggravation: he took an oath to uphold the Constitution. In Mitigation: As a state legislator, he is part of an indigenous people with no cultural tradition of the rule of law.

Tennessee State Legislator Joe Armstrong, for pressuring a college bookstore to stop selling novelty mints unflattering to President Obama. In Aggravation: Seriously? Mints? Are you fucking kidding me? In Mitigation: Member of same traditionally oppressed and historically disfavored and probably genetically poorly endowed tribe of state legislators, see above.

Florida Attorney Joel Hirschhorn, for issuing legal threats to critics of his telemarketing client. In Aggravation: criticizes First Amendment defense lawyers for overconfidence while using the web site "www.aquitall.com." In Mitigation: Admits that he knows nothing about First Amendment law and must rely on other lawyers, who are presumably from Florida.

Joseph Rakofsky, for agreeing to defend a murder case as his first trial, doing an appalling job, and then suing critics for defamation. In Aggravation: Sued dozens across the nation for accurate reporting of the contents of a court transcript, sued for "internet mobbing," a tort accepted only by the professionally censorious or the insipidly and self-promotingly contrarian. In Mitigation: increasingly pathetic.

The University of St. Thomas School of Law, for settling with the aforementioned Rakofsky, thus funding his litigation, promoting frivolous defamation litigation, and squandering the heritage of American legal education. In Aggravation: Cowardly capitulation consistent with their touchy-feely let's-reach-consensus approach to legal education, which produces baby seals to be clubbed in the real world. In Mitigation: technically didn't censor anyone themselves; just empowered, promoted, surrendered to, and endorsed censorship.

Froma Harrop, for being part of an organization promoting civility, calling tea partiers terrorists, defending herself by saying that civility means not refraining from such invective but providing everyone with an opportunity to say their piece, and then promptly deleting critical comments on her blog. In Aggravation: No apparent sense of irony or self-awareness. In Mitigation: only censored comments on own blog; went through entire life with a name that sounds like a minor character from the cantina scene in Star Wars.

Sam Houston State Professor Joe E. Kirk, for attacking a free speech wall with a box cutter because one comment on it said "Fuck Obama." In Aggravation: inspired Sam Houston State campus police to threaten the promoters of the free speech wall with disorderly conduct because of the propensity of free speech to cause people like Joe E. Kirk to attack walls with box cutters. In Mitigation: As a university professor, a likely victim of his peer group.

York University student Sarah Grunfeld, for accusing a professor of anti-Semitic comments based on poor listening skills, then doubling down and arguing that the professor should not have uttered hateful words about Jews even in the context of listing them as examples of unacceptable speech, while uttering the same words herself in order to complain. In Aggravation: Also asserted that there was no basis to accept the professor's statement that he himself was Jewish. In Mitigation: too young, stupid, and Canadian to know any better.

Christopher and Maeghan Maloney, for threatening a science blogger with a SLAPP suit for calling Christopher Maloney a "quack" because he promotes naturopathy. In Aggravation: Ms. Maloney, author of the SLAPP threat, wanted an injunction prohibiting all of the blogger's peers from repeating the "quack" statement, and is a state legislator. In Mitigation: The Maloneys were forced to read a ten-page letter from Ken.

Sarah Deming and her lawyer Martin Leaf, for attempting censorship via class action in a lawsuit claiming the movie Drive was actionably anti-Semitic. In Aggravation: "misleading trailer" and "hurtful content" litigation are both forms of censorship. In Mitigation: those Ryan Gosling internet memes are getting really freaking annoying.

Albin H. Gess of Snell & Wilmer, for threatening bloggers who engage in transparent satire of Meghan McCain. In Aggravation: actually smart enough to know that his threats were premised, legally speaking, on sheer bullshit. In Mitigation: forced to work at a giant firm being polite to Meghan McCain.

Thedala Magee and her lawyer Vicki Roberts, for threatening Amy Alkon with a defamation suit because Amy complained when Magee, a TSA agent, went to third base with Amy. In Aggravation: people who threaten Americans with lawsuits for complaining about government sexual assault are vermin. In Mitigation: Mageee has to touch sweaty business travelers all day, Roberts is apparently addled by television appearances and has a wrenchingly sad IMDB page.

University of Wisconsin-Stout Chancellor Charles W. Sorensen, for defending the censorship of obviously satirical and non-threatening posters on a college campus and disrespecting Firefly. In Aggravation: even when he caved, could not resist justifying his clearly unlawful actions. In Mitigation: did eventually, belatedly, do the right thing. Also, Chancellor job market is awful right now, so unable to get other work.

California Assemblywoman and Speaker Pro Tem Fiona Ma, for this deathless quote: "“We found out later on that, Constitutionally, you can not ban a type of music,” said Ma. “Plus, I, like my opponents said, I didn’t really know what was going on.” In Aggravation: she gets to make laws. In Mitigation: only said what they are all, to use the term loosely, "thinking."

Marc Stephens, for posing as a lawyer to threaten a 17-year-old blogger (among others) because they questioned questionable "science." In Aggravation: fond of bizarre conspiracy theories. Marc Stephens would say that if you follow college football, in light of the Penn State scandal you are probably complicit in child sex abuse. In Mitigation: entertained me in the course of threatening me. And who here hasn't wanted to threaten me?

Ken and Patrick, for calling out scrapers and occasionally banning or ridiculing comenters. In Aggravation: V. snarky assholes. In Mitigation: Not technically state action, authors come from broken homes.

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Hiya, friends.

I'm trying to find some modest-scale pro bono legal help for a blogger. No, it's not me. And though, as you know, I've done pro bono First Amendment cases, I can't handle this one.

The issue is whether a plaintiff in a SLAPP suit against another party in Montgomery County, Maryland can convince a court to force Google to reveal the blogger's identity. The blogger will write the papers; he's just looking for someone to review them, advise on compliance with Maryland civil procedure and strategy, and make an appearance at the hearing (if there is one) in Montgomery County to argue the motion. The blogger can cover costs, but can't afford fees.

The cause, in my opinion, is just; the issue presented is blogger anonymity, and the underlying suit against the third party is a contemptible SLAPP. Moreover, the plaintiff has a rather remarkable history of evil.

If you can help — or know someone who can — please let me know. Time is rather of the essence.

Thank you.

As I said recently, even though my identity is no longer a semi-secret, I don't promote my firm or my legal career on this blog. My firm has noting to do with Popehat's content and exercises no editorial control over it. I write here to promote issues that are important to me, for self-expression, because the community of readers and bloggers and commenters is a joy, and because I learn from that community every day. I certainly don't name clients and talk about their cases in an identifiable way here.

Today, with a client's permission, I'm making an exception. I'm doing so to tell you about the successful resolution of a First Amendment pro bono case. I'm doing so because the case is all about free speech, bogus legal threats, and SLAPP suits, some of Popehat's core topics. Sure, it's no Marc Stephens drama, but it's in our wheelhouse.

The pro bono client is Michael Hawkins of For the Sake of Science, and the adversary is Dr. Christopher Maloney, a licensed naturopath in Maine. You can read Michael Hawkins' account of the case here. This is my account.

Continue Reading »

Chickens come home to roost, and little piggies eventually come back to — I don't know. Wallow?

My point is that, sometimes, good triumphs over evil, and rights triumph over rights-violators. That occasional taste of sweet victory keeps the good guys up for the ongoing fight.

Today's example are two little piggies named Junius Peake and Susan Knox.

I wrote about them before, twice. In brief: Junius Peake was a professor at University of Northern Colorado. Student Thomas Mink wrote what was obviously, overtly, clearly, inarguably a parody (and, frankly, a rather mild and inoffensive one) about Professor Peake in a publication called The Howling Pig. Junius Peake reacted not like an adult, not as a university professor should, but like a loser. Junius Peake called the cops. And Deputy District Attorney Susan Knox, showing either wanton malice or a shocking lack or ethics, perspective, and mental ability, approved a search warrant for Thomas Mink's home on the theory that a university student's obvious satire constituted "criminal libel." Thomas Mink sued. Susan Knox repeatedly lost in the appellate court.

Now the last little piggie run weeee, weeee, weeeeee all the way home. As reported by The Fire, the Student Press Law Center, and the ACLU, Susan Knox (who, fortunately, is no longer a prosecutor [edit: see below]) has coughed up $425,000 rather than risk a third smackdown by the Tenth Circuit.

This is a gigantic victory. Rogue prosecutors, as a rule, escape without consequences when they violate even the most clearly defined constitutional rights. That's why the rare cases in which rogue prosecutors do face consequences are so sweet.

Congrats to Thomas Mink and his lawyers. Fighting prosecutorial miscreants can take many years, as in this case. But if we want the system to change, we need to be ready to chase bad actors like Susan Knox to the very gates of Hell.

Edited to add: in the comments, someone points out that she may be an AUSA now. CRAP.

For reasons that will be evident below, I didn't push Reason Magazine's fantastic July 2011 issue, which took a hard look at America's criminal justice system. I should have sooner. If you care at all about criminal justice issues, it's well worth a read. As I've been saying for a long time, everyone should be outraged about how the system doesn't work, because it strikes at the hearts of all of our values — conservatives, liberals, libertarians, and [whatever you call the people who want to regulate Happy Meals]. It deserves the praise it has gotten. Radley Balko and the others involved (including but by no means limited to Jacob Sullum) deserve major kudos for showing what a news and commentary magazine can still do.

Let me add that I'm very proud to have been a small part of it. Radley kindly recruited me to write a blurb about the culture of prosecutorial misconduct. That was my first byline in a national publication; I'm stoked that it was in Reason.

Wow! Hey, Ken, you just revealed your secret identity! Well, yeah, kind of. But realistically the veneer of anonymity has grown pretty thin. When even a cuckoo-for-Cocoa-Puffs twit like Marc Stephens can find me in a few minutes, and when newspapers are making the connection, and when relatively soon I expect to be further outed in a story of a successful pro bono defense of a science blogger against a SLAPP threat [watch this space], there's not a whole lot of point in making a big effort to remain anonymous. I still support bloggers who do, and still believe in my reasons, but the cat is pretty thoroughly out of the bag at this point.

It shouldn't be said, but I will say it anyway: I don't use this space to promote my law firm, and nothing here represents the position of the firm. It's all my fault. I don't plan to throw my full name around here, because this space isn't about my firm.

Seriously, go read the Reason criminal justice issue, if you haven't already.

There's really no excuse for the fact that we don't have a "SHUT UP!" tag; I shall have to remedy that. After all, "SHUT UP!" is one of our most venerable and consistent themes.

There's a reason for this. The reason lies at the heart of law enforcement methodology in general and federal law enforcement abuse of Title 18, United States Code, Section 1001 in particular.

Imagine this scenario, based on an actual situation:

A business associate calls you and says, "my dear business associate, the shit has hit the fan; Federal Agency X is investigating Project Y we did together. Two Agency X agents are interviewing people."

"Oh coitus," says you, or words to that effect, and terminate the conversation.

Later that day, two well-dressed and polite agents of Agency X visit you. Because you despise me and want me to weep and gnash my teeth, you consent to be interviewed. At some point, they ask you "have you talked about this investigation with anyone?"

"No," you say.

They smile.

At the end of the interview, it occurs to you to ask, "Hey, am I in trouble? Do I need a lawyer?"

The agents smirk. "No," they say. "I mean, unless you lied about talking to anyone about this investigation."

See, you've fallen into a false statement trap, which I've talked about before. The feds know that you've talked to somebody about their investigation. They were probably standing next to your friend when he made that call this morning. And now you've talked your way into a felony.

Here's how it works. The feds identify some fact that they can prove. It need not be inherently incriminating; it might be whether you were at a particular meeting, or whether you talked to someone about the existence of the investigation. They determine that they have irrefutable proof of this fact. Then, when they interview you, they ask you a question about the fact, hoping that you will lie. Often they employ professional questioning tactics to make it more likely you will lie — for instance, by phrasing the question or employing a tone of voice to make the fact sound sinister. You — having already been foolhardy enough to talk to them without a lawyer — obligingly lie about this fact. Then, even though there was never any question about the fact, even though your lie did not deter the federal government for a microsecond, they have you nailed for a false statement to a government agent in violation of 18 USC 1001. To be a crime under Section 1001, a statement must be material — but the federal courts have generally supported the government's position that the question is not whether a false statement actually did influence the government, but whether it was the sort of false statement that could have influenced the government.

Hence, the government's chickenshit false statement trap works — even though the government agents set it up from the start. Now, however weak or strong their evidence is of the issue they are investigating, they've got you on a Section 1001 charge — a federal felony. In effect, they are manufacturing felonies in the course of investigations.

You think this is an improbable scenario? You think I'm talking about rare and extreme cases to color the entirety of federal law enforcement? To the contrary, as a federal defense attorney, I'm encountering this more and more often. Not to sound like an old fart, but we never indulged in such bullshit when I was a federal prosecutor (cue the scoffing from many defense attorneys). But in the last 12 years, I've seen it in a dozen cases, and heard about it from colleagues across the country. It's now routine for federal agents to close out an investigation with a false-statement-trap interview of a target in an effort to add a Section 1001 cherry to the top of the cake.

The lesson — other than that criminal justice often has little to do with actual justice — is this: for God's sake shut up. Law enforcement agents seeking to interview you are not your friends. You cannot count on "just clearing this one thing up." Demand to talk to a lawyer before talking to the cops. Every time.

SHUT UP.

Which enumerated power of Congress allows the federal government to prosecute a Texas state court judge accused of beating his daughter with a belt?

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Bonus question:  Does Article II, Section 4 apply to the United States attorney investigating this case?  If so, please give your answer in the form of an essay, in comments.

Update: see comments.