All of Popehat's Prenda coverage is collected here.

There have been many small-to-medium developments in the Prenda Law saga. I'm preparing for trial, so I won't be covering them any time soon. But I will leave you with one: a consequence for a Prenda Law lawyer in the Ninth Circuit.

You may recall that Prenda figure Paul Hansmeier has dabbled in representing people objecting to proposed class action settlements. Apparently Mr. Hansmeier was seeking admission to the bar of the Ninth Circuit in order to represent an objector on the Groupon class action. The Ninth Circuit, having seen Judge Wright's order, is less than welcoming in an order by an appellate commissioner:

On April 5, 2013, attorney Paul R. Hansmeier entered his notice of appearance as counsel of record for Objector-Appellant Padraigin Browne. At that time, Hansmeier’s application for admission to the bar of the Ninth Circuit was pending.

On May 15, 2013, the court ordered that Hansmeier’s application for admission be held in abeyance pending the outcome of his referral to the Minnesota State Bar and the Central District of California Standing Committee on Discipline in Ingenuity 13 LLC v. Doe, No. 2:12-cv-8333-ODW(JCx) (C.D. Cal. May 6, 2013) (Order Imposing Sanctions). See In re Hansmeier, No. 13-80114.

Because Hansmeier’s application for admission to the court’s bar cannot be approved at this time, he cannot represent parties in this appeal. See Fed. R. App. P. 46(a); 9th Cir. R. 46-1.2. Accordingly, within 14 days after the filing of this order, Hansmeier shall withdraw from this case. Hansmeier’s notice of withdrawal shall contain proof that he has informed Browne that Hansmeier cannot represent him in this court and that Browne may obtain new counsel or represent himself. Hansmeier’s notice of withdrawal shall also contain contact information for Browne unless a notice of substitution of counsel has been filed by the time Hansmeier files his notice of withdrawal.

Failure timely to comply with this order may result in sanctions.

In other words: no, Paul, you can't have admission to the Ninth Circuit until this is cleared up, and we won't let you represent a client before us in the interim.

Actions have consequences.

(Thanks to a tipster for word of this order)

Various journalists are claiming they have seen a video of Toronto Mayor Rob Ford smoking crack.

This led to the most darling legal threat ever from a lawyer named Dennis Morris — who has represented Ford for some time — to Gawker:

Update: We've received an email from Dennis Morris, a gentleman with a hotmail.com email address purporting to be Ford's attorney. Here is the message. We haven't corrected its formatting.

Greetings;I am a lawyer,and have been contacted by Mayor Ford's office in reference to your indicating you will post a photo of Mayor Ford smoking crack cocaine. Mayor Ford denies such took place,and if such posting occurs,it is false and defamatory,and you will be held legally accountable.In reference to the photo,you wish to publish, Mayor Ford has his photo taken daily,sometimes with others.

If the person you mention is now deceased,it is sad,regardless of his alleged background.

Please govern yourself accordingly.

Dennis Morris.

This is delightful, like that video of the kitten freaking out when it sees a lizard.

First, nobody ever governed themselves accordingly based on a threat from a hotmail account. Second, are you using some sort of comma-based operating system? Third, what the fuck are you talking about?

This sets a high bar.

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

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

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

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

And later in that hearing . . .

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

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

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

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

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

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

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

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

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

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

All of Popehat's Prenda coverage is collected here.

When last we left the Prenda Law team, it was reeling from a devastating sanctions order and referral for criminal investigation. Now, as predicted, defense attorneys across the country are filing that order in cases brought on behalf of Prenda Law clients.

This has already led to one comical result.

You may remember that Attorney Jacques Nazaire, representing Prenda Law entity AF Holdings in Georgia, filed an angry and rather bizarre opposition to a defendant's motion for sanctions there. Now, in response to that defendant filing Judge Wright's order — which is what Judge Wright clearly contemplated, and which involves informing the Georgia federal court of an order that is patently relevant to the proceedings — Jacques Nazaire has doubled down and flipped out.

In his objections to defendant Patel's filing of Judge Wright's order about Prenda and AF Holdings, Nazaire argues that the filing is late and not authorized by the local rules, because it is effectively a "sur-reply" – that is, a reply to a reply. That's what just about any lawyer would say; it's within the realm of reason.

But then:

9. While this Court may or may not agree with some of the issues presented in
the California case, unbeknownst to the defendant, the California case will not necessarily become a mandate on this Court. It is solely within the discretion of this Court to follow or not follow the decisions made in the California case.

10. The defendant should realize that California has different laws than
Georgia, a different Governor than Georgia; a different legislative body than Georgia, different business needs than Georgia and different views than Georgia and as such all of its decisions cannot serve as a mandate for Georgia.

11. For example the California Courts have legalized gay marriage. Perry v.
Schwarzenegger 704 F.Supp.2d 921 (N.D. Cal., 2010);Certified question, 628 F.3d 1191 (9th. Cir.); Answered 52 Cal.4th 1116 (2011) Affirmed, 671 F.3d 1052 (9th Cir.) Such a decision cannot serve as a mandate on Georgia Courts to legalize gay marriage as well.

Sure, Nazaire is trying to make a point that the decisions of a United States District Judge in one state do not dictate the decisions of a United States District Judge in another state. But he's doing it in a hilariously silly and inflammatory way. Moreover, the core argument is misleading: both cases are copyright cases premised in federal law, and Judge Wright's decision was premised in federal law. This isn't a case about California or Georgia state law.

Nazaire then proceeds to start throwing Prenda principals under the now battered and flat-tired bus, suggesting he shouldn't be sanctioned:

19. Defendant also argues that plaintiff’s counsel should have made reasonable inquiry of the signature. Prior to filing the document, the undersigned contacted Prenda Law to find out whether or not Mr. Cooper would be available to testify at trial but was advised that they could not locate Mr. Cooper. The undersigned was advised that Mark Lutz and Peter Hansmeier would be available to testify as witnesses. Had the undersigned realized that the Electronic Frontier Foundation was hanging with Mr. Cooper, he would have been able to track down Mr. Cooper and questioned him about the documents. It turns out that Mr. Cooper was a caretaker of one of the properties of a Prenda Law member and had left said property in August, 2012.

20. Therefore, even if the undersigned had placed a knife to the throats of each of Prenda’s members, none would have been able to give him Mr. Cooper’s contact information at the time on November 5, 2012 when Plaintiff commenced its law suit. It is certainly not the first time a company has lost contact with an agent (or alleged agent as stated).

I'm going to give Mr. Nazaire Internet Points for responding to Star Trek references with a "Hangin' With Mr. Cooper" reference that is far more subtle.

Nazaire is also infuriated that his opposing counsel submitted one of his emails:

32. Additionally, an email containing information that was sent by the undersigned, in strict confidence, to Mr. Chintella was presented as evidence in that California case by Mr. Chintella. Chintella went behind plaintiff’s counsel’s back without any notification and submitted the email contents as evidence in order to influence the California case; the same case that now he presents to this Court as a mandate; the same Georgia case from which he intends to profit.

Yeah, here's the thing: if you write something to opposing counsel, especially in a case like this, you should expect it can get filed in court if it's relevant.

Nazaire's filing is furious and more than a little manic.

Is this real life?

Hat tip to Fight Copyright Trolls, via Twitter.

Nakoula Basseley Nakoula is in federal prison. He's scheduled to remain there until September. He's held under the name "Nakoula Basseley Nakoula," not as "Sam Bacile" (the name he used make the anti-Islamic film "the Innocence of Muslims,") nor under the name "Mark Bassely Youssef" (which he now claims is his current correct name, notwithstanding that he pleaded guilty to a federal crime under the Nakoula name).

Why is he in prison? It depends on who's talking.

To hear some people talk, he's in prison because he made an anti-Islamic movie, because the Obama Administration is eager to cover up the root causes of the Benghazi catastrophe, and because the Obama Administration wants to appease censorious Islamists. Some people merely imply this with headlines: "The guy who made “Innocence of Muslims” is still in jail, and we still don’t know who attacked Benghazi" Some people, like National Review's Rich Lowry, come right out and say it, asserting that Nakoula would not have been arrested and charged with a supervised release revocation but for his speech:

He is not going to win any good citizenship awards and violated the terms of his probation by using an alias (something Nakoula admits).

A violation of probation, though, usually produces a court summons and doesn’t typically lead to more jail time unless it involves an offense that would be worth prosecuting in its own right under federal standards. Not for Nakoula.

This wasn’t a case of nailing Al Capone on tax evasion. As Nina Shea of the Hudson Institute points out, Al Capone’s underlying offense was racketeering and gangland killings. Nakoula Basseley Nakoula’s underlying offense wasn’t an underlying offense. He exercised his First Amendment rights.

Some call him a political prisoner.

These people all have something in common. They've never prosecuted a supervised release revocation in federal court. They've never defended someone accused of violating supervised release in federal court. They've never worked as a federal probation officer or filed a petition to revoke a sueprvisee's release. They've never worked as a federal judge and approved or denied such a petition, or presided over such a hearing. They've never seen a supervised release revocation hearing. Moreover, I'd wager a substantial amount of money that before they opined about the proceedings against Nakoula they didn't talk to anyone who had ever done any of these things, or anyone reasonably well informed about how they are done.

I've observed, and participated in, federal supervised release revocation proceedings since 1995. In writing about Nakoula I've drawn not only on that experience but on the actual documents from his case and on the law. My premise has been this: anyone on supervised release for a federal fraud conviction and owing more than $700,000 in restitution would face supervised release revocation if the Probation Office discovered that they were using aliases, engaging in unreported financial transactions, and using computers in those transactions, all in violation of their terms of release. Most federal judges would issue arrest warrants, not summonses, and most federal judges would order jail time to such a person if they found he had obtained and used a false driver's license and concealed transactions from the Probation Officer. Rich Lowry's claim that "[a] violation of probation, though, usually produces a court summons and doesn’t typically lead to more jail time unless it involves an offense that would be worth prosecuting in its own right under federal standards" is quite frankly pulled straight out of his ass. Supervisees are routinely arrested rather than summoned, particularly when there are indications they might be a flight risk — like using a false identity. Supervisees are routinely returned to prison for offenses that would never be prosecuted federally as separate crimes.

Is Nakoula in federal prison because he made the "Innocence of Muslims" video? Superficially, perhaps, in the sense that his behavior may have escaped detection if he hadn't become famous. It's even possible that someone in the Obama Administration tipped off — or pressured — the Probation Office about his conduct. (If that's what happened, there ought to be a Congressional investigation.) But Nakoula's conduct is the sort that would absolutely be pursued if detected by his Probation Office and would routinely result in a revocation of supervised release and a return to federal prison. People saying otherwise don't know what they are talking about or don't care, or both.

I support a vigorous Congressional inquiry into the attack at Benghazi. The most charitable interpretations of the inquiry to date raise grave concerns about the honesty and decency of Obama Administration officials. I support asking hard questions about whether anyone in the administration contacted the U.S. Probation Office in Los Angeles about Nakoula. But this inquiry doesn't require, and shouldn't encourage, lying about the law. We should absolutely fight, to our last breath, pressure to yield to unprincipled "hate speech" and "anti-blasphemy" norms of other countries. But the cause of freedom of expression is not advanced by cynical and dishonest partisan bullshit.

Edited to add:

Mr. Baldwin, you're completely awesome. But my days of taking you serious politically are certainly coming to a middle.

It's time for the Popehat Signal. I'm looking for attorneys admitted in Massachusetts to represent both named and anonymous online commenters. They've been sued by a man named Jonathan Graves Monsarrat based on a series of LiveJournal posts and comments.

Monsaratt's lawsuit is here. You can see LiveJournal threads talking about the lawsuit here and here.

The lawsuit targets posts and comments about Monsarrat's January 2010 arrest. Various sources reported that police arrested Monsarrat when they found him at a loud Somerville party that featured (gasp) underaged drinking. The charges against Monsarrat were later dismissed. Monsarrat was already known locally. Some of his fame was benign — he ran a whimsical message board called the "Wheel of Questions" where people could leave notes and have them answered. Some of his fame, on the other hand, was not positive. In 2003 the MIT and Harvard student papers reported complaints by participants in a Harvard-MIT-Wellesley matchup program he created and operated; participants asserted that Monsarrat chose people he wanted to meet from the matchup he was running and persistently contacted them in a way they found harassing. He was quoted thus:

Monsarrat, who also participated in the matchup service, said that he had heard of complaints about his personal use of data from the service, but said “I kind of don’t get that. I signed up like everybody else. There was no privacy policy.”

These reports led to a certain amount of internet infamy, including an unflattering entry on Encyclopedia Dramatica.¹ Monsarrat filed a DMCA notice against Encylcopedia Dramatica seeking to remove among other things, pictures of him they posted in the course of ridiculing him.

When Monsarrat's arrest broke in 2010, people began writing about it, and him, and his past, on LiveJournal. People writing about it referred to past stories about him in connection with the matchup incident, and other critiques of him. As is common online, many criticisms were vivid and accusatory and hyperbolic. That's the basis of Monsarrat's suit against two named defendants (a blogger and a poster on LiveJournal) and multiple anonymous commenters.

Monsarrat's complaint cites some statements made about him which, if untrue, could be defamatory. So why do I think this case is worthy of the Popehat Signal? It's because the complaint is overtly censorious and abusive of the legal process in multiple ways.

First, the complaint jumbles allegedly false statements of fact together with clear statements of opinion and insulting rhetoric. The former can be defamatory; the latter is protected by the First Amendment.

Second, the complaint jumbles together numerous defendants and suggests that they are all jointly responsible for each others' words. But under Section 230 of the Communications Decency Act content providers — like bloggers — can't be held liable for the words of their commenters. Moreover, Monsarrat's conspiracy theory appears to be a method to target people for protected speech (like insults or statements of opinion) on the theory that the protected speech was connected to non-protected speech (like false accusations of fact). Practically speaking, that theory means if you post an insult or opinion about someone in a thread that also contains a false statement by someone else, you could be sued for conspiracy to defame. The chilling effects are obvious.

Third, the complaint suggests that bloggers, and commenters, cannot report and comment based on stories published in newspapers. There can't be any dispute that a local paper reported on Monsarrat's arrest and that student papers reported on the matchup incident. Misstating what's in those articles can be defamatory, but suing people for repeating what was published in the paper — without any basis for asserting they knew it was false — seems overtly censorious, and faces substantial legal barriers.

Fourth, Monsarrat cites some commenters merely for linking to other sites, like Encyclopedia Dramatica and the Harvard student paper. But there is — thankfully — an emerging legal consensus that linking to content does not constitute republication of that content for defamation purposes.

Fifth, for some reason, it appears that Monsarrat has waited to the very ragged edge (if not beyond) of Massachusetts' three-year statute of limitations for defamation actions. That does not support the assertion that he was actually harmed; it appears tactical.

Sixth, Monsarrat's non-defamation causes of action appear highly dubious. His "common law copyright" claim is based on uses of content that are clearly intended to critique or satirize. His commercial claims seem to rely on the highly dubious proposition that the defendants were involved in commercial activity. In short, the other claims appear to be a kitchen-sink approach. And, of course, there's Butthurt In the First Degree, also known as Intentional Infliction of Emotional Distress.

The Streisand Effect may yield results that Monsarrat will regret. He needs to prove that the things said about him are untrue. A lawsuit like this seems designed to generate widespread publicity and encourage any witnesses that might support the defendants to come forward.

The complaint is highly vulnerable to attack. The named defendants need legal help. One of them — Ron Newman — helps maintain a LiveJournal community. Like many Americans, he's out of work, and like almost all Americans, he'd find it impossible to fund the defense of a lawsuit. Lawsuits are ruinously expensive to most folks — which is exactly why merely the threat of a defamation suit can silence people, and why plaintiffs can abuse the legal system to chill expression.

Someone may have uttered false and genuinely defamatory words against Monsarrat; I don't know. I do know that defamation cases — particularly ones where the plaintiff is pursuing extravagant legal theories that threaten everyone's speech — are best resolved with vigorous and capable counsel on both sides. Here Monsarrat's complaint, whatever elements of merit it might have, is framed in a way that should be of grave concern to anyone who values freedom of expression and opposes legal bullying.

So: if you are a Massachusetts lawyer, please consider helping the named defendants. I suspect that First Amendment lawyers across the country will be willing to offer support and advice. In addition, the anonymous commenters require counsel to help them oppose discovery calculated to pierce their anonymity.

Thanks, as always, for standing up to defend free speech.

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

But it's not the only possible bad consequence.

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

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

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

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

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

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

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

Hey guys. Was it worth it?

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

The U.S. Attorney's Office for the District of Massachusetts has just filed two criminal complaints arising from the Boston Marathon bombing investigation. One complaint is against two men, Dias Kadyrbayev and Azamat Tazhayakov. The other complaint is against one man, Robel Phillipos.

Documents are already available on PACER.

The current docket (the record of court actions in the case, with links to documents) is here in the case against Kadybayev and Tazhayakov. The complaint cover sheet against them is here. The affidavit in support of the complaint against them — which has an FBI agent's statement of the evidence supplying probable cause — is here.

The docket in the case against Pillipos is here. The complaint against him is here. The affidavit — which appears at a brief glance to be the same one from the case against the other two men – is here.

The first complaint charges Kadybayev and Tazhayakov with a conspiracy to violate federal law in violation of Title 18, United States Code, section 371 — the generic federal conspiracy statute. The object of the conspiracy — the federal law the defendants are alleged to have conspired to violate — is destruction of evidence in a federal investigation in violation of Title 18, United States Code, section 1519.

The second complaint charges Phillipos with making a false statement to the government in violation of Title 18, United States Code, section 1001.

Read the affidavit yourself. Very briefly, the affidavit alleges that Dias Kadyrbayev and Azamat Tazhayakov saw emptied-out fireworks in accused bomber Dzhokhar Tsarnaev's room, concluded that he was one of the Boston Marathon bombers, and decided to dispose of the container of hollowed-out fireworks, apparently to protect Tsarnaev. Phillipos, the FBI alleges, gave multiple statements and initially lied about what he knew of actions by Dias Kadyrbayev and Azamat Tazhayakov.

A few points:

1. They may or may not have their first appearance today, May 1st. here's what I wrote about how a first appearance works and what happens next.

2. Why did they charge Phillipos separately? It's too early to say. They may be cutting him out from the other two to testify against them, they may be avoiding "misjoinder" (putting together different charges and defendants that don't belong together) even though it's premature to worry about that before the indictment, or there may be some other strategic reason.

3. Remember how I said earlier today that you should shut up rather than talk to the feds, because you'll just wind up (1) confessing, (2) making a stupid false statement that will make you look guilty, or (3) make a stupid false statement that will get you charged with making a stupid false statement? Yeah. This is what I was talking about.

4. The same magistrate judge signed off on the complaints. I'm going to have to come up with more conspiracy theories.

It's my best piece of advice — and the advice most consistently ignored. If you're dealing with the government, and you are in any doubt, why won't you just shut up?

Yesterday at Ars Technica, Nate Anderson had a great piece about the FBI's capture of a couple of meatheads who were extorting a professional poker player with nude pictures hacked from his email account. Some people may walk away with the lesson, "you're a fool to keep your naked pictures online." Some may walk away with a Coen Brothers type of lesson that some criminals are stupid and doomed to failure. I walk away with the same lesson as always: shut your damnfool mouth and stop trying to convince law enforcement of anything.

Nate's article tells about two defendants — Keith Hudson and Tyler Schrier. The FBI confronted them both in a manner well-calculated to scare the living shit out of them, rousting Hudson at gunpoint at his home and yanking Schrier out of his dorm room in his underwear. Most people have a hard time thinking straight under those circumstances. They forget things, they misread signals, they judge poorly, and they let their desperation to control the situation overcome whatever minimal good sense they have. The only good approach is to shut up. Hudson and Schrier didn't. They both talked, and both started with a series of stupid and easily countered lies, before blundering around towards the truth.

"The FBI does not fly us out here and we don't break into your door to talk to you if we don't have a substantial amount of evidence against you," said one of the FBI agents to Hudson. Actually, the FBI goes off on a wild tear based on lousy evidence all the time. But this much is true: when the FBI shows up to interrogate you, there is an excellent chance they already know the answers to their questions (or think they do) and already have evidence lined up to back their beliefs. When you run your fool mouth, you are probably doing one of three things: (1) incriminating yourself by admitting to parts of their case, (2) telling stupid and easily disproved lies, which make you look guilty, thus making you easier to convict, and (3) telling stupid and easily disproved lies that the government will use to pile additional charges onto you.

Indeed, in this case, when the feds indicted Hudson and Schrier, they added a charge under 18 U.S.C. section 1001 against Schrier for lying to the FBI during his interrogation. They did that even though the FBI agents knew it was a lie at the time and had the evidence they needed to disprove it and it didn't slow or deter the investigation by a hair. Now, that extra charge probably didn't have much impact on Schrier's sentence — it's really chickenshit rubble-bouncing — but it's an additional federal felony that makes his case more complicated, needlessly.

Some people are sociopaths and would try to fast-talk God Almighty. Some people talk compulsively under any pressure. And some people have somehow picked up a foolish notion that if they don't talk, if they don't cooperate, if they don't show the cops that they're good citizens, they'll be hustled off to a cell even if they've done nothing, or that they will lose a chance to divert the cops from the something they have done. Here's the truth: maybe, possibly, there could be a scenario where your long-term interests will be hurt if you refuse to talk to law enforcement. Maybe, possibly, in some extremely unlikely scenario, you could do actual harm to your fortunes by asking to talk to a lawyer before you talk to the cops. But those remote and hypothetical scenarios are vastly outweighed by the strong likelihood that you will make your situation much worse by talking. The "I better talk to the cops right now or things might get worse" approach is like deciding to jump off a bridge because you might get struck by lightening if you keep standing on it.

Shut up. For the love of all that is holy just shut up.

My God, but the law is dreadful most of the time. Trust me. Really. It's insufferable.

So: best to take what pleasures you can when they become available.

United States District Judge Fred Biery of the Western District of Texas understands. That's why he wrings amusement from the dirty throat of the law whenever possible. Of course, that's easier to do when you have life tenure, a bitchin' robe, and armed federal marshals at your disposal, but the point is his spirit is admirable. Judge Biery is well known for amusing himself, and many of his readers, in the course of writing orders. Yesterday, in an order denying a motion for a preliminary injunction against a broad City of San Antonio ordinance regulating strip clubs, he enjoyed himself some more. The order is right here. It begins:

An ordinance dealing with semi-nude dancers has once again fallen on the Court's lap.

. . . and so on, in that style, until:

Should the parties choose to string this case out to trial on the merits, the Court encourages reasonable discovery intercourse as they navigate the peaks and valleys of litigation, perhaps to reach a happy ending.

And in the middle, there is actual law.

I've now written myself well out of contention for any position of public authority anywhere, anywhen. But this sort of order makes me think that if I ever became a judge I could still have fun.

Enjoy. Judge Biery did.

(If you think Judge Biery's humor is adolescent, you haven't seen what judges and attorneys are like when they're being serious. Plus Footnote 5 is masterful.)

"Any man's death diminishes me, because I am involved in Mankind," says John Donne.

But why stop there? Any man's (or woman's) fatigue or writer's block diminishes me as well.

Is anyone sparing any thought for the people furiously writing conspiracy theories about the federal prosecution of accused Boston Marathon terrorist Dzhokhar Tsarnaev? Does anyone even care about the quality of home life of the people laboring to misinform their readers about federal criminal procedure and the contours of constitutional rights?

I care. I worry about whether Pat Dollard is spending enough time with his real and/or imagined family. I kvetch about whether Daniel Greenfield makes time to go to the dry cleaners and buy fresh tinfoil. I'm concerned that the folks at Jihad Watch haven't had time to pick up their prescriptions at RiteAid. I'm concerned that Megyn Kelly has had much less time to spend sneering incredulously at her loved ones. Is Paul Mirengoff eating right? And is John Yoo working out? You're only one person, John, and you can't applaud all the torture in the world all by yourself.

I can help.

I've made up some conspiracy theories and ominous observations about federal criminal procedure for you. Go home early! Catch a movie. Mow the lawn. Throw the ol' pigskin around with the kids. I've got this.

Continue Reading »

Today, when Jason Collins became the first openly gay NBA player, some people were predictably annoyed. One of them was ESPN's Chris Broussard, a lout:

"I'm a Christian. I don't agree with homosexuality," Broussard said. "I think it's a sin, as I think all sex outside of marriage between a man and a woman is.

"If you're openly living in unrepentant sin … that's walking in open rebellion to God and to Jesus Christ," he added.

Yeah, Jason Collins is really bringing down the high moral tone of the NBA.

Chris Broussard is a dinosaur snarling at the oncoming asteroid. Even opposition to gay marriage is doomed in the long term, let alone dwindling opposition to gays and lesbians living openly. If they are angered by people like Jason Collins, Broussard and his ilk are destined for lives of increasingly marginalized bitterness and resentment.

But that's not enough for some who think Chris Broussard's views should be suppressed by force of law. For instance, over at Pacific Standard, Nicholas Jackson uses Chris Broussard as an opportunity to call for censorship and be thoroughly wrong about free speech and the First Amendment. It's typical for people to react to obnoxious speech by waving their arms and proclaiming vaguely there oughta be a law; that's banal. Jackson distinguishes himself by asserting authority and then promoting disinformation about the law, all in the service of an argument that the law should prohibit Broussard's speech.

What authority, you might ask? Authority as a journalist:

It’s the blanket free speech argument. (And I know that argument well. As a wildly conservative—this is back in the jingo days before I came out, when I was using the near-lethal combination of pen and temper to shield my own personal insecurities—high school student, I wrote a number of columns for the student newspaper and regional publications in the Chicago area on this subject.) But the blanket free speech argument is a weak one. Any journalist knows that. After a basic media ethics class (the easy way) or a handful of frightening emails from a subject (the hard way), you’ll know a thing or two about libel and slander.

Jackson relies upon his journalist's experience to tell us that the Supreme Court has many restrictions on free speech, and has been cutting back on the First Amendment.

There’s also, of course, obscenity, child pornography, incitement, false or misleading advertising (all commercial speech is subject to limited protection), and speech owned by others (this is where trademarks and copyright issues come into play). Over the years, the U.S. Supreme Court has tightened the definition of free speech over and over again.

Therefore, Jackson suggests, the "fighting words" doctrine should just be expanded a bit to prohibit words like Broussards'.

Jackson's just flat-out wrong.

First, Jackson's censorious fantasies aside, the Supreme Court has been expanding free speech rights for a half-century, not "tightening" them. With very few context-specific exceptions — like speech at schools — the Supreme Court has used every opportunity to reject the argument that the First Amendment permits suppression of speech because it's "offensive." In doing so, the Court has relentlessly rejected attempts to expand — or even apply — the "fighting words" doctrine. The Court said it wasn't fighting words to wear a jacket with the words "Fuck the Draft." The Court Court held Jerry Falwell couldn't recover for the humiliation of a Hustler ad parody suggesting he lost his virginity to his mother in an outhouse, "fighting words" doctrine or not. The Court overturned flag burning laws, rejecting the argument that flag-burning constitutes "fighting words." The Court found a broad hate speech law to be unconstitutional, noting that the "fighting words" doctrine could not be applied selectively to disfavored speech. And, as Jackson concedes, the Supreme Court rejected — by an 8 to 1 margin — the argument that Fred Phelps' douchebaggery constitutes "fighting words" just because it causes emotional pain.

Nor has the Court been willing to carve out new exceptions to the First Amendment. The Court refused to create a new First Amendment exception for lies about military credentials. It refused to create a new exception for depictions of animal abuse.

In short, the "fighting words" doctrine is dying. It's quite rare to see it used to justify censorship. What Nicholas Jackson is asking for is not the minor tweak to current doctrine that he suggests, but a wholesale reversal of fifty years of free speech precedent. Why does he think we should do that?

Now, as a 25-year-old, I appreciate those restrictions [on speech], because, frankly, I don’t want to listen to your bullshit.

Oh, Nicholas. Believe me when I understand that I get that right now. But it's not enough. My right to free speech depends on the free speech of people like Broussard. If you think that that's just a rhetorical flourish, let me remind you of Nicholas' own words:

After a couple of years in which we’ve seen dozens of studies—LGBT youth who are bullied are far more likely to consider and commit suicide; acceptance from family and friends minimizes risk—and a similar number of deaths, Broussard’s words, and the arguments by otherwise reasonable people that they should be protected by free speech, are no longer acceptable. They’re fighting words. [emphasis added]

Yes: not talking out of your ass when you discuss the First Amendment is now hate speech, according to Jackson.

Broussard's team is losing, or has lost. Their traditional argument — that homosexuality is evil, and dirty, and icky, and morally objectionable to decent people — is no longer palatable to most people, let alone convincing. Therefore their strategy has shifted. More and more, the public argument against gay marriage is not that it's morally wrong, but that expanding gay rights will necessarily lead to fewer rights for everyone else. We're told that recognizing the equal rights of gays and lesbians will lead to suppression of freedom of speech and religion.

I don't think that's a winning argument long-term. But people like Nicholas Jackson do their best to make it seem plausible.

Nicholas Jackson is a useful idiot for the anti-gay right.

Edited to add: My good friend Clark has a critique of my treatment of Broussard, and I have a partial response.

There are many rules governing sensible protection of your company's online reputation. The first is simple, if vague: to quote Wil Wheaton, don't be a dick.

If you've been a dick, there's no need to despair. Everybody has a bad day now and then, and the internet is basically a big old bag of dicks, so your dickery may quickly be forgotten. Redemption is within your reach.

Unless, that is, you double down, and triple down, and quadruple down.

"Doubling down" means that, when called out for being a dick, you retaliate by being even more of a dick. The infamous Charles Carreon doubled, tripled, and quadrupled down in his dispute with The Oatmeal and with a satirical blogger. Paul Christoforo doubled down. Craig Brittain of "Is Anybody Down?" doubled down. Ranaan Katz doubled down.

When you double, triple, and quadruple down on online dickery, you place yourself beyond easy reputational redemption, and instead face the full force of the Streisand Effect.

Illinois bus company Suburban Express learned this lesson over the past week. But even though they engaged in online dickery, and even though they doubled down, having caught a glimpse of the Streisand Effect, they are now retreating furiously from the precipice and avoiding the fatal triple- and quadruple-down. But has their change of strategy come soon enough?

Continue Reading »

In the wake of the terrorist attack on the Boston Marathon and the identification, arrest, and charging of Dzhokhar Tsarnaev, I've been feeling very self-conscious. That's because lots of people are talking about federal criminal law and criminal procedure, subjects with which I am somewhat familiar. When they do, I ask myself: when I very frequently talk about things I haven't bothered to learn about, do I sound like that? God help me.

Today: nutty and deliberately ignorant conspiracy theories about Tsarnaev's first court appearance.

As I mentioned early in the week, Tsarnaev made his initial appearance from his hospital bed on April 22, 2013, the first court day after his arrest. At that hearing, United States Magistrate Judge Marianne B. Bowler said this to him:

You have a right under the Constitution of the United States to remain silent. Any statement made by you may be used against you in court, and you have the right not to have your own words used against you.

In other words, Magistrate Judge Bowler informed Tsarnaev of his Fifth Amendment rights.

(The transcript suggests she did so incorrectly and confusingly — the last clause just isn't right unless you modify it to say "you have the right not to be compelled to say things against yourself," because the government certainly can use your words against you if those words aren't compelled. That may mean that the court reporter got it wrong, or that Judge Bowler had the sort of slip of the tongue any of us can have speaking extemporaneously.)

Judge Bowler reading Tsarnaev his rights has caused great consternation in some circles. It has been reported that he initially answered questions but stopped talking after read his rights. Outrageous! Critics want to know: why was he allowed to make a court appearance? Why did the judge read him his rights? More critically, what motive did the judge have to do so?

The jittery and uncombed are eager to rush in to answer that question.

First, I give you the one-vowel-short-of-aptly-named Pat Dollard, whose headline shrieks "SHOCK: JUDGE WHO ENDED INTERROGATION OF BOSTON BOMBER WITHOUT DOJ KNOWLEDGE LINKED TO MUSLIM BROTHERHOOD":

UPDATE: Judge Bowler lists herself as “a dedicated international traveler” on her bio in Business Week. Where does she travel to in such a dedicated fashion? Who does she see there, and what does she do, so regularly as to be self-described as “dedicated”. And, perhaps, “dedicated” to anything in particular? Did she take on a radical Muslim boyfriend in her travels?

International travel is, indeed, suspicious. An international travel is likely to encounter foreigners, some of whom are not even white.

Or take Daniel Greenfield of Frontpage Mag, who has this on "Boston Bomber Magistrate’s Middle Eastern Connections":

As FOX News reported and Robert Spencer noted, Dzhokhar Tsarnaev stopped talking once he was prematurely read his Miranda rights. That helps the authorities establish the lone wolf narrative. Whatever else we might have learned from him is probably lost.

. . . .

While Islamic infiltration of our political system is well known, the infiltration of our legal system is less well known, but operates within similar parameters with foreign contacts being made. There is no way of knowing how much Bowler has been influenced by her connections with the legal and political systems of the Muslim world, but it is telling that her international judicial relations appear to begin and end with the Muslim world.

The very fact that there is no way to know how much Bowler was influenced by Muslims show exactly how shadowy and mysterious Muslims are!

Now, here's why these people are full of shit.

Magistrate Judge Bowler was required by federal law to tell Tsarnaev of his right to remain silent. Rule 5 of the Federal Rules of Criminal Procedure, governing initial appearances, says this:

(d) Procedure in a Felony Case.

(1) Advice. If the defendant is charged with a felony, the judge must inform the defendant of the following:

(A) the complaint against the defendant, and any affidavit filed with it;

(B) the defendant's right to retain counsel or to request that counsel be appointed if the defendant cannot obtain counsel;

(C) the circumstances, if any, under which the defendant may secure pretrial release;

(D) any right to a preliminary hearing; and

(E) the defendant's right not to make a statement, and that any statement made may be used against the defendant.

And how did Magistrate Judge Bowler wind up holding an initial appearance? The U.S. Attorney's Office — the federal prosecutors, an arm of the U.S. Department of Justice — filed the criminal complaint on Sunday, April 21, 2013, initiating the criminal case. The docket for the case to date is here. Filing a complaint against a person in custody starts the federal criminal process moving, leading naturally to a first appearance. If the feds hadn't filed the complaint, there's no way Judge Bowler could have held a hearing with Tsarnaev without someone filing a habeas corpus petition. Judges can't initiate such federal criminal proceedings on their own.

The Patient Zero for this plague of derangement is Fox News' Megyn Kelly:.

The FBI filed a federal criminal complaint against the 19-year-old on Sunday, and federal District Court Judge Marianne Bowler [emphasis added] arrived at the hospital where he is being treated to preside over his initial hearing Monday, when she read him his Miranda rights.

[FBI officials told The Associated Press Wednesday that Tsarnaev acknowledged to investigators his role in the attacks before he was advised of his constitutional rights. He reportedly said he was only recently recruited by his brother to be part of the attack.]

But Fox News' sources say there was confusion about Bowler's timing, with some voicing concerns that investigators were not given enough time to question Dzhokhar under the "public safety exception" invoked by the Justice Department.

Someone with a saintly level of patience could probably teach prominent journalist Megyn Kelly the difference between a District Court Judge and a Magistrate Judge if she wanted to know for, say, the purpose of reporting accurately about the most important federal criminal case of the year. Maybe the same person could teach her how to use the Google to see which one Magistrate Judge Bowler is.

But Kelly is merely a carrier of the derangement. It is to her credit that she acknowledges being told that Rule 5 required Magistrate Judge Bowler to inform Tsarnaev of his rights — and that she acknowledges being told that the "Judge Bowler initiated the hearing too early" theory is bullshit.

Two officials with knowledge of the FBI briefing on Capitol Hill said the FBI was against stopping the investigators' questioning and was stunned that the judge, Justice Department prosecutors and public defenders showed up, feeling valuable intelligence may have been sacrificed as a result.

Yes, federal agents are often against application of the rule of law. But:

But Justice Department spokesman Dean Boyd disputed the claims, saying that the suspect’s initial appearance was scheduled following the filing of the criminal complaint in a manner “consistent” with procedure – and that the agents were aware.

“The Rules of Criminal Procedure require the court to advise the defendant of his right to silence and his right to counsel during the initial appearance. The prosecutors and FBI agents in Boston were advised of the scheduled initial appearance in advance of its occurrence,” Boyd said.

A federal law enforcement official also told Fox News that the courts, not the Justice Department, made the decision on when and where to hold the hearing.

“The (FBI) agents and prosecutors were notified beforehand,” the official said, claiming those agents had already left the room when the judge came in.

So: some federal law enforcement official says that "the courts" made the decision when and where to hold the hearing. That is almost certainly literally true. But it's almost certain that first, the U.S. Attorney's office informed the court that they were ready for a hearing. Again, the feds initiate cases, and they initiate first appearances by showing up at court with someone in custody or asking the court to hold a hearing. Is it physically possible that Judge Bowler could, on her own initiative, scheduled a hearing after the feds initiated the case by filing the complaint? Yes. But it is an extraordinary claim, requiring some sort of evidence. Unnamed "federal law enforcement officials" are not known for their command of federal criminal procedure.

In short: the proposition that Judge Bowler was motivated by some sleeper-cell jihadist agenda to rush to inform Tsarnaev of his rights in order to shut him up is very stupid.

I recognize that federal criminal procedure is not common knowledge. But it's not hard to figure out either. I figured it out and I'm more than a little dim. A brief call to any first-year Deputy Federal Public Defender or Assistant United States Attorney, let alone any experienced federal criminal practitioner, would have cleared up these imbecilities.

But who wants to do actual research before accusing a judge of being a terrorist parisan? The wild-eyed people sniffing every falafel Judge Bowler ever ate are either (1) crazy (2) lazy (3) stupid or (4) dishonestly partisan, or some combination of those.

Update: A reaction from Pat Dollard:

Perhaps Pat Dollard is not able to understand the difference between an interrogation by law enforcement and an appearance in court. Or, more likely, he doesn't care.

Edited Again:

And in the category of "really ought to know better," consider Paul Mirengoff at Powerline:

I have never practiced criminal law (except briefly at the international level) and have not studied it since 1974. Thus, like most Americans, much of what I think I know about criminal procedure comes from watching television and movies.

My viewing experience does not include any instances in which a judge read a criminal defendant his or her Miranda warning in the middle of police interrogation. Thus, I was shocked to learn that this happened in the case of the surviving Tsarnaev terrorist.

. . . .

I can’t help but that suspect that it was the Obama administration that decided Tsarnaev should receive the Miranda warning. After all, wasn’t it the prosecutor who brought the judge to Tsarnaev’s hospital room in the first place? And isn’t it almost certain that the local prosecutor, an assistant U.S. attorney, acted on instructions from the higest level of the Justice Department? Line prosecutors don’t make decisions about how to treat terrorists in high profile cases when there is time to consult the DOJ.

The party line is that the magistrate judge made the decision to Mirandize the terrorist because she deemed her appearance in the hospital as constituting an appearance in court by Tsarnaev. This strkes me as ridiculous, unless the prosecutor characterized the event as the equivalent of a court appearance.

Although Mirengoff might be known for engaging his mouth without engaging his brain, he's not a moron, and not lazy: he's a well-qualified attorney. But his post amounts to saying "please congratulate me for refusing to research and for assuming criminal procedure works like I see on TV." Mirengoff is perfectly capable of researching the Federal Rules of Criminal Procedure and confirming that Rule 5 requires the judge to inform a defendant of their rights. Mirengoff attempt to evade the issue by asking why the judge would "deem her appearance in the hospital as constituting an appearance in court," and calling this ridiculous. It is Mirengoff's response that is both ridiculous and willfully ignorant. If the hearing held in the defendant's room wasn't an initial appearance, what the devil was it? It wasn't a probable cause hearing — the judge had already found probable cause by approving the complaint, and no further probable cause determination was necessary until either an indictment or preliminary hearing. It was run, in every respect, exactly like an initial appearance. Federal courts sometimes conduct initial appearances by video or in a hospital room when the circumstances require, as minimal research would have shown. It's very likely that the U.S. Attorney's Office pushed for an initial appearance in the hospital in order to ward off any future argument that the government failed to take Tsarnaev before the magistrate "without unreasonable delay" as required by Rule 5(1)(A).

If Meingoff is embarrassing, the loathsome and amoral torture-fetishist John Yoo is infuriating:

This is an outright violation of the separation of powers. It is not for federal judges, or worse yet their assistants, to rove around looking for criminal cases in which to act as law enforcement agents. The decision whether to read Miranda lies up to the executive branch.

Like Meingoff, John Yoo is neither stupid nor lazy nor unqualified to research legal issues. At the most charitable interpretation, neither wants to make even the most minimal inquiry about law and true facts when their gut reaction suits their partisan narrative. More likely, they are both deliberately dishonest people.

We get letters.

This week we heard from a reader who, to protect her privacy, I'll refer to as Rapunzel. Rapunzel had a bad experience with a piece of jewelry she'd ordered from an online merchant. It seems that Rapunzel had ordered a necklace, which she expected to look like this:

What actually arrived looked like this:

But by the time this reached me, the necklace was not Rapunzel's problem. This is not a post about cheap cosmetic jewelry.

This is a post about baseless threats of suit to suppress a dissatisfied customer's speech, spurious allegations of crime, stalking, and  the most bone-headedly aggressive  customer service department on the entire world wide web.

"A bunch of mindless jerks who'll be the first against the wall when the revolution comes." — Douglas Adams.

This is a post about alwaysinfashion.com, the "Online Store of Polish & Russian Amber and Murano Glass Jewelry," whatever that is.

Now ordinarily I would not lift a finger to assist someone who had purchased a trinket online and found its appearance … something less than what was advertised. I would politely commiserate, then point out that I charge more to make one telephone call than the trinket is worth.

To her credit, Rapunzel did not seek my assistance in getting a refund. She had dealt with that herself. After sending an inquiry, she found that the company's return terms (a refund only if the offending merchandise is shipped first-class mail to Italy, at the buyer's expense) were unsatisfactory, and advised the company that she would write a negative review of the product, and her experience with the company.

That's when things got weird. That's when Rapunzel received this email, from "sales" at alwaysinfashion.com:

Mrs. Rapunzel,

We are a reliable and well known company and people on the internet talk about Us very positively.

You have received the items that You have ordered and paid for, that is it.

Thousands of customers are happy for the quality of our products and for our professionalism and We must suppose that You agreed with them since You have decided to place on order from our company.

Be aware that You have threatened, tried to blackmail and accused our company of Scam with your e-mail. This something really serious and inacceptable therefore We will send a copy of your e-mail and all your data to our lawyers.

If You keep on with your defamations and write anything on blogs, forums or social networks, We will immediately start a lawsuit against You.

Sales Department
Alwaysinfashion.com (Emphasis in original)

This email brings several thoughts to mind.

First, it's good to know that Ignatius J. Reilly is alive and well, and working in customer service.

Second, the circular logic that leads alwaysinfashion.com to suppose that Rapunzel, a first time customer, "must have agreed" with the thousands of customers happy for the quality of its products and professionalism, before she ever received a product, is breathtaking.

Third, my co-blogger Ken has said, rightly, that vagueness is one of the hallmarks of a poor legal demand. When the threatening party cannot identify a specific defamatory statement, that's a sign of bullying and bluster. In this case, alwaysinfashion.com goes one better: The company threatened Rapunzel with litigation before she wrote a single word about its product.

Fourth, well, you'll see…

"When the going gets weird, the weird turn pro." — Hunter S. Thompson.

After receiving alwaysinfashion's thug-missive, Rapunzel replied, stating she would communicate with the company no more, but asserting her right to express her honest opinion of the product, as well as the fact that alwaysinfashion had threatened to sue her, to others. I believe she has done so at this point.

Later this week, unsolicited, this popped into Rapunzel's in-box.

Mrs. Rapunzel,

These are the facts:

1)You placed an order of two Amber necklaces ATN002 (realized with irregular beads softly rounded in matte and cognac color) promptly shipped and delivered to You.

2)You liked so much Our Amber necklaces that You have tried to get another couple for free adducing unfounded reasons.

3)After Our denial, your opinion about Our products and Our company suddenly changed:  Our necklaces became “sub par” items and We became scammers.

Objectively if You feel yourself victim of a scam, the only logical thing to do is to ask for product return instructions and surely not to ask for other two pieces of the same item. You also asked for an expedited shipping since you:” really wanted to have this amber for the trip”.

Moreover your scam allegations are based on your personal idea that beads color is  an evidence of Amber quality. Please show Us your credentials as jewelry expert or send Us a copy of the  documentation that certify your statements.

Mrs. Rapunzel You can be sure that We will leave reviews and post on social networks about your blackmail and threatens and We surely inform about this matter all the companies You work for in Oklahoma [REDACTED BY PATRICK]

This is our last warning to You Mrs. Rapunzel: If You keep on with your defamations and write false reviews or lies on blogs, forums or social networks, We will immediately start a lawsuit against You.

This is our last e-mail and We assure You, Mrs. Rapunzel that the next communication will be sent from Our lawyers along to a claim for damages.

Sales Department

Alwaysinfashion.com

Believe it or not, there is a charitable interpretation of this email.

I will assume, charitably, that the mastermind behind alwaysinfashion.com's sales team learned English as a second language.

And one could assume, charitably, that alwaysinfashion's threat to "leave reviews and post on social networks about your blackmail and threatens" is a poorly phrased way of stating, "We will post detailed rebuttals of your online criticisms of our products."

If one were charitable.

I'm not charitable, because the following threat, to contact Rapunzel's employer concerning her "blackmail and threatens," showing that alwaysinfashion had gone so far as to google Rapunzel and name an employer, is extortion in the moral sense of the word if not the legal: a threat to accuse Rapunzel falsely of a crime, and to jeopardize her livelihood, all in order to suppress her speech.

"This aggression will not stand, Dude." — Walter Sobchak.

By this time Rapunzel had contacted Popehat. Where initially she had considered alwaysinfashion's threats to be bluster, that the company had taken the trouble to search her employment history, in a dispute over a cheap piece of jewelry, was so off-the-rails scary that she felt she needed help.

Yesterday I sent the following email to "sales" at alwaysinfashion.com:

Dear Sir or Ma'am.

I am writing to inquire whether a series of threatening emails sent to your customer Ms. Rapunzel concerning Ms. Rapunzel's request to return an amber necklace represent your company's typical customer service.

As I believe you are aware, Ms. Rapunzel recently purchased an amber necklace from your website. She was dissatisfied with the quality of the product. She asked to return the necklace for a full refund. When you informed that she would have to pay shipping costs to return the product at her own expense, Ms. Rapunzel advised she would mention that fact, and her overall dissatisfaction with the quality of your merchandise, in a review of the product.

In response, you sent Ms. Rapunzel an email which contained the following threat:

Be aware that You have threatened, tried to blackmail and accused our company of Scam with your e-mail. This something really serious and inacceptable therefore We will send a copy of your e-mail and all your data to our lawyers.If You keep on with your defamations and write anything on blogs, forums or social networks, We will immediately start a lawsuit against You.

Later this week, although Ms. Rapunzel had not contacted you in the meantime, you wrote her again, threatening to contact a former employer about this situation, and to "leave reviews and post on social networks about your blackmail and threatens."

I write for a weblog known as Popehat, which can be read at www.popehat.com. We write occasionally on legal issues, as well as free speech and threats to free speech. I am an attorney, as are several of my fellow writers. Although I do not represent Ms. Rapunzel as her attorney, I do find it troubling that you would threaten a lawsuit against Ms. Rapunzel simply for exercising her right to express her honest opinion.

I plan to write about this situation. Before I do so, I would like to offer you the opportunity to comment on the situation. If my understanding of the facts is incorrect, please let me know. I would also appreciate it if you could answer the following questions:

1) How has Ms. Rapunzel "blackmailed" your company? Has Ms. Rapunzel threatened or attempted any criminal action against you, as opposed to expressing her honest opinion of the product and what appears, to me as well, to be atrociously poor customer service?

2) Is it usual for alwaysinfashion.com to contact employers of customers who complain about the quality of its merchandise?

3) Is it usual for alwaysinfashion.com to threaten to accuse customers who complain about the quality of its merchandise of crimes on "social networks"?

4) Do you understand that, in the United States as in most free nations, Ms. Rapunzel has an absolute right to express honest opinions, and to write honest reviews, of products and of merchants such as alwaysinfashion.com?  If you do understand this, on what basis do you threaten to sue Ms. Rapunzel?

5) Are you familiar with the term "Streisand Effect"?

For your reference, here are some posts we've written in the past at Popehat about people and companies who baselessly threaten litigation against others who, like Ms. Rapunzel, are simply expressing the truth or honest opinion:

[snipped]

Finally, while I do not represent Ms. Rapunzel at this time, I am an attorney. Naturally I know many attorneys, in California (where your company appears to base its American operations) as well as in Ms. Rapunzel's state of Oklahoma, and around the nation. I do want you to know that in the event alwaysinfashion, or any of its affiliates, files a baseless lawsuit against Ms. Rapunzel for exercising her constitutional right to free speech, we will do everything in our power to see that Ms. Rapunzel is afforded counsel who will vigorously protect her rights, including, if necessary, filing motions for sanctions under appropriate state law to recover her attorney's fees and costs.

I look forward to your response.

Patrick at Popehat

I've sent that email multiple times, with and without links. As of today my emails have been returned as undeliverable or have not generated a response.

I can't say whether alwaysinfashion will follow through on its threats to sue Rapunzel, but that isn't the point. By promising a suit, and by promising to contact her employers, alwaysinfashion has already shown it's willing to use the chilling effect of threatened litigation (and worse) to silence her.

All that I can do at this point is to speak for her, and to encourage her to continue to speak. I'll be the first to admit that I know nothing about jewelry, but even if I did, and I knew enough to say that alwaysinfashion sells the finest Baltic amber jewelry on the planet, I wouldn't use one of their necklaces to wring a chicken's neck.

Stupid defamation threats like those issued by alwaysinfashion, issued before an aggrieved customer even writes a review, threats of extrajudicial terror such as contacting employers, can and should be publicized far and wide. Alwaysinfashion's customers, and its potential customers, deserve to know that if they have a poor experience with the company and complain about it, they may receive the Rapunzel treatment: threatened litigation and threats to employment.

Caveat emptor.

UPDATE: ALERT! ALERT! ALERT!

A representative of Always In Fashion has favored us with a reply.

But the reply raises more questions than it answers and, if possible, makes the company look worse.