Category: Law

The Procedural Tail That Wags The Substantive Dog: Update On Michael Mann's "Hockey Stick" Lawsuit

I've collected, under this tag, my posts about Michael Mann's defamation lawsuit against National Review, Mark Steyn, the Competitive Enterprise Institute, and Rand Simberg.

The lawsuit is back to the District of Columbia Court of Appeal upon the National Review's denial of their renewed anti-SLAPP motion. The key issue currently presented is a procedural one that will strike many non-lawyers as irritatingly dry, obscure, and removed from the heart of the case: when a District of Columbia court denies an anti-SLAPP motion under DC's anti-SLAPP statute, can the losing party appeal immediately, or do they have to wait until the end of the case?

Though seemingly procedural, the question has such a substantive impact that it transforms how anti-SLAPP statutes work and how effective they are at stopping and deterring frivolous suits.

Stand by while I put you in a coma with my lawsplaining.

(more…)

Supreme Court Conjures Corrorboration of Anonymous Tip Out of Thin Air To Justify Traffic Stop

Today the United States Supreme Court decided Navarette v. California, upholding a California court's determination that a traffic stop of Navarette's truck — which, as it turned out, contained drugs — was supported by reasonable suspicion, and therefore constitutional. The opinion is here. It's a 5-4 decision, with Justice Thomas writing the majority opinion and Justice Scalia writing the dissent. It should have gone the other way.

The issue at hand is the power and reliability of anonymous tips. Here the California Highway Patrol received an anonymous tip through a 911 dispatcher that a silver Ford 150 pickup on a particular highway had run the tipster off the road. The CHP saw a truck matching the description on the highway and stopped it on suspicion of drunk driving — but did not first observe the truck doing anything illegal or reckless. In fact, the cops followed the truck for five miles without observing any traffic violations. The cops approached the truck and (allegedly) smelled marijuana, which led to a search and the discovery of a substantial amount of marijuana in the truck bed.

The Supreme Court has found that the Fourth Amendment permits brief, investigative stops of vehicles based on reasonable suspicion alone — that is, a "particularized and objective" basis to believe some crime is being committed. That's not new. Nor is it new that an anonymous tip can form part of the basis for reasonable suspicion or probable cause — if the tip is corroborated.

What's novel here is that the majority agrees that reasonable suspicion can be premised entirely on a functionally anonymous tip.1 Traditionally the key to corroboration has been confirmation of incriminating details, not details that any observer could make about a innocent subject. So, for instance, if you call in an anonymous tip that I am running a meth lab in my blue house on the corner, and the cops confirm that I have a blue house on the corner, those details are not meaningfully corroborative. If the cops find evidence of witnesses seeing me move precursor chemicals into my blue house on the corner, that's meaningfully corroborative. Here, the police observed no erratic driving or other corroboration of meaningful facts. In fact, they observed five minutes of unremarkable driving. The only corroboration was the innocent fact of the truck being present on the highway.

The majority uses sophistry to turn innocent facts into facts that corroborate the anonymous typster:

By reporting that she had been run off the road by aspecific vehicle—a silver Ford F-150 pickup, license plate 8D94925—the caller necessarily claimed eyewitness knowledge of the alleged dangerous driving. That basis of knowledge lends significant support to the tip’s reliability.

. . . .

A driver’s claim that another vehicle ran her off the road, however, necessarily implies that the informant knows the other car was driven dangerously.

. . .

There is also reason to think that the 911 caller in this case was telling the truth. Police confirmed the truck’s location near mile marker 69 (roughly 19 highway miles south of the location reported in the 911 call) at 4:00 p.m.(roughly 18 minutes after the 911 call). That timeline of events suggests that the caller reported the incident soon after she was run off the road. That sort of contemporaneous report has long been treated as especially reliable.

. . . .

Another indicator of veracity is the caller’s use of the 911 emergency system. See Brief for Respondent 40–41,44; Brief for United States as Amicus Curiae 16–18. A 911 call has some features that allow for identifying and tracing callers, and thus provide some safeguards against making false reports with immunity.

The majority is turning three things into corroboration here: (1) the fact that the person claimed something happened immediately after it allegedly happened, (2) the fact that a person predicted that a particular car would be on a particular highway, and (3) the fact that the person called 911 and made the claim. But the 911 caller could have claimed anything — that someone was pointing a rocket launcher out the window of the truck, that someone was stabbing a nun in the back of the truck — and gotten the same result. (1) and (3) are just restating the premise "we got an anonymous tip about this," and (2) is a purely innocent fact that any public observer could know. This approach renders the concept of corroboration almost meaningless by making calls to 911 about highway behavior effectively self-corroborating. If I want to call 911 and report that you are weaving in and out of traffic and appear drunk, under this decision, I just created reasonable suspicion to stop you. The cops can pull you over without observing you driving oddly at all — in fact, they can stop you even if they follow you for five minutes and you are driving perfectly.

Justice Scalia's dissent is thorough and merciless, as it should be. Here's how he ends it:

The Court’s opinion serves up a freedom-destroying cocktail consisting of two parts patent falsity: (1) that anonymous 911 reports of traffic violations are reliable so long as they correctly identify a car and its location, and (2) that a single instance of careless or reckless driving necessarily supports a reasonable suspicion of drunkenness. All the malevolent 911 caller need do is assert a traffic violation, and the targeted car will be stopped, forcibly if necessary, by the police. If the driver turns out not to be drunk (which will almost always be the case), the caller need fear no consequences, even if 911 knows his identity. After all, he never alleged drunkenness, but merely called in a traffic violation—and on that point hisword is as good as his victim’s.

Drunken driving is a serious matter, but so is the loss of our freedom to come and go as we please without police interference. To prevent and detect murder we do not allow searches without probable cause or targeted Terry stops without reasonable suspicion. We should not do so for drunken driving either. After today’s opinion all of us on the road, and not just drug dealers, are at risk of having our freedom of movement curtailed on suspicion of drunkenness, based upon a phone tip, true or false, of a single instance of careless driving.

Justice Scalia is right. This decision waters down corroboration to the point that it is meaningless, effectively making any anonymous tip of a driver's behavior sufficient to justify a traffic stop. That's a bad result.

See also Jonathan Adler.

Guest Post: Peoria Mayor Jim Ardis On The Rule of Law

  • BOWYOURHEAD

Today's guest author, Jim Ardis, is the Mayor of Peoria, Illinois.

Ladies and gentlemen, the rule of law is what separates us from animals and barbarians and people from Joliet. It is that rule of law that I now invoke to prevent so-called "satire" from being used to abuse my person and position.

By now you have heard that someone pretending to be me on Twitter has breached the peace by suggesting that I am some sort of corrupt, disturbed drug fiend. The statements attributed to me have been scandalous, personally hurtful, and textually ambiguous.

Let me clear some things up right now:

  • I am devoted to my loving family and have not "shacked up" in a motel with a so-called "notorious furry."  I do not visit motels because their low thread-count sheets make my skin chafe.  I have not been observed at any motels and if I had been it would have been to visit with community leaders about growing jobs in Peoria's business climate.  I had a soiled fox costume in my car because I was going to participate in a pantomime for children at a local cancer hospital.  My staff's nickname for me is "Swift," not "Yiff."
  • I have not hired any sex workers.  I have nothing against them, and feel our system should do a better job protecting them from harm and providing them with opportunities to better themselves and stop being such fucking liars about important people.
  • I do not have a "drug problem."  Drugs are a scourge of impoverished, powerless, and dark people everywhere.  I am fortunate to be affluent, to have friends, and to know many people in the criminal justice system.  Throughout my career I have strongly advocated that people, including myself, avoid the ruinous consequences of drugs.
  • Interns hallucinate and are prone to sudden unconsciousness.  It's a thing.  You can Google it.
  • I have not accepted cash in low denominations for political favors, as has been claimed.  That's ridiculous.  I am reliable and honest.  Look — I have a lapel pin!

People may believe that they can get away with mocking me or saying unpleasant things about me because of the "First Amendment."  They are mistaken.  Here in Peoria we have a system that respects the law — and respecting the law means respecting the Office of Mayor.  When I was victimized by satire — abused by someone with no regard to my right to self-esteem and dignity — my good friend Peoria Police Chief Steve Settingsgaard sprang into action. Could you get the police to devote substantial resources to investigating someone being making fun of you on the internet? Probably not — but frankly you don't carry the burdens of state that I do. Uneasy lies the head that wears the crown, and all that.

With the help of Steve, your tax dollars, scores of police hours, and other resources, we were able to present search warrant applications. First we got a warrant for Twitter from Judge Kirk D. Schoenbein. Good old Kirk understood that "satire" is no excuse for disrespect here in Peoria. Then we went to Judge Lisa Wilson to force Comcast to cough up the subscriber information associated with the Twitter account. Lisa gets it too: who does this punk think he is, making fun of the mayor? Finally we went to Judge Kim Kelley with an application for a warrant to search this asshole's home, and to toss it for drugs while we were at it. And what do you know? They found drugs! Time for this little shit to face some real consequences.

You hear all the time about judges getting all bent out of shape about the First Amendment. So why did three judges issue warrants here? Well first of all, they all understood that as the Mayor of Peoria I am an important man, and my reputation is something that should be protected under the law. Second, I made it clear in the warrant application how just plain mean some of those "satirical" tweets were. Now, some eggheads out there might say that the warrant suggested, on its face, that the tweets were not meant to be taken seriously, and that there's no articulated basis to search for drugs in the warrant. You just remind those eggheads that a Mayor in a town like Peoria can get things done. I know people, and people know me, and when I want a warrant, then by God I get a warrant. I know all of these judges. This is exactly why you cultivate relationships, my friends. That kid in your fourth grade class eating paste and wetting himself during story time may seem worthless to you now, but you never know when he's going to wind up having the power of life and death over people because he's got an inoffensive name and photographs well.

In conclusion: this is a case of the system working the way it ought to. Someone disrespected me, a man of respect. The system turned around and bit him in the ass. That will teach you to think twice about mouthing off about people like me, won't it?

Fear Cuts Deeper Than Swords: Bergen Community College Freaks Out Over "Game of Thrones" T-Shirt

Tragedy is inevitable. Our reaction to tragedy is not. We cannot govern every risk, but we must govern our reactions to risks. Here's the question we must ask ourselves: when awful things happen in the world, will we abandon reason and accept any measure urged by officials — petty and great — who invoke those awful things as justifications for action? Or will we think critically and demand that our leaders do so as well? Will we subject cries of "crime" and "drugs" and "terrorism" and "school shootings" to scrutiny? Will we be convinced to turn on each other in an irrational frenzy of suspicion, "for the children?"

If we don't maintain our critical thinking, we wind up with a nation run more and more like Bergen Community College in New Jersey, where we may be questioned and sent for reeducation for posting a picture of our daughter in a popular t-shirt on Google+.

Naturally the FIRE has the story, sourced from Inside Higher Education.

Francis Schmidt is a popular professor of design and animation at Bergen. Schmidt posted to Google+ a cute picture of his young daughter wearing a Game of Thrones t-shirt in a yoga pose next to a cat. The t-shirt was this one, bearing the phrase "I will take what is mine with fire and blood," a quote from Daenerys Targaryen, a fictional character in a series of fantasy novels (which has sold tens of millions of copies) turned into a hot TV series on HBO (with close to 15 million viewers per episode.) Googling the phrase will instantly provide a context to anyone unfamiliar with the series.

So: a professor posts a cute picture of his kid in a t-shirt with a saying from a much-talked-about tv show. In the America we'd like to believe in, nothing happens. But in the America we've allowed to creep up on us, this happens:

But one contact — a dean — who was notified automatically via Google that the picture had been posted apparently took it as a threat. In an email, Jim Miller, the college’s executive director for human resources, told Schmidt to meet with him and two other administrators immediately in light of the “threatening email.”

Although it was winter break, Schmidt said he met with the administrators, including a security official, in one of their offices and was questioned repeatedly about the picture’s meaning and the popularity of “Game of Thrones.”

Schmidt said Miller asked him to use Google to verify the phrase, which he did, showing approximately 4 million hits. The professor said he asked why the photo had set off such a reaction, and that the security official said that “fire” could be a kind of proxy for “AK-47s.”

Despite Schmidt’s explanation, he was notified via email later in the week that he was being placed on leave without pay, effectively immediately, and that he would have to be cleared by a psychiatrist before he returned to campus. Schmidt said he was diagnosed with depression in 2007 but was easily cleared for this review, although even the brief time away from campus set back his students, especially those on independent study.

So. That happened.

Pressed for an explanation of this lunacy, Bergen Community College Kaye Walter retreated into the first refuge of a modern authoritarianism, "think of the children":

Walter said she did not believe that the college had acted unfairly, especially considering that there were three school shootings nationwide in January, prior to Schmidt’s post. The suspects in all three shootings were minors targeting their local schools (although three additional shootings at colleges or universities happened later in the month).

This — this — is the core demand of the modern Fear State. Tell us what to fear, leaders, for the night is dark and full of terrors. Tell us what we have to do. Tell us what to think, and how to assess risks. Tell us "if you see something, say something" so we may feel duty-bound to vent our fears and insecurities about our fellow citizens rather than exercising judgment or compassion or proportion. Assure us that you must exercise your growing powers for our own safety, to ward off the terrible things we worry about.

Is Bergen some sort of unlikely citadel of irrationality? At first glance it may seem so. After all no well person would interpret the t-shirt as a threat and report it. That takes irrationality or dysfunction. No minimally competent or intelligent or honest school administrator would pursue such a report upon receiving it; rather, anyone exercising anything like rational discretion would Google the thing and immediately identify it as a mundane artifact of popular culture. No honest or near-normal intellect would say, as Jim Miller did, that the "fire" in the slogan might refer to an AK-47, a profoundly idiotic statement that resembles arguing that "May the Force Be With You" is a threat of force. Nobody with self-respect or minimal ability would claim that this professor's treatment was somehow justified by school shootings.

But Bergen isn't an anomaly. It's not a collection of dullards and subnormals — though Jim Miller and Kaye Walker could lead to think that it is. Bergen is the emerging norm. Bergen represents what we, the people, have been convinced to accept. Bergen is unremarkable in a world where we've accepted "if you see something, say something" as an excuse to emote like toddlers, and where we're lectured that we should be thankful that our neighbors are so eager to inform on us. Bergen is mundane in a world where we put kids in jail to be brutalized over obvious bad jokes on social media. Bergen exists in a world where officials use concepts like "cyberbullying" to police and retaliate against satire and criticism. Bergen exists in a world where we have allowed fears — fear of terrorism, fear of drugs, fear of crime, fear for our children — to become so powerful that merely invoking them is a key that unlocks any right. Bergen exists in a country where our leaders realize how powerful those fears are, and therefore relentlessly stretch them further and further, so we get things like the already-Orwellian Department of Homeland Security policing DVD piracy.

Certainly the Miller-Walter mindset is not unique in American academia. We've seen a professor's historical allusion cynically repackaged as a threat. We've seen a community college invoke 9/11 and Virginia Tech and Columbine to ban protest signs. In pop-culture debacle much like this one, we've seen a college tear down a "Firefly" poster as a threat. We've seen satire and criticism punished as "actionable harassment" or ""intimidation."

As a nation, we all need to decide whether we will surrender our critical thinking in response to buzzwords like "terrorism" and "drugs" and "crime" and "school shootings." On a local level, we must decide whether we will put up with such idiocy from our educational institutions. So tell me, students and teachers and alumni of Bergen Community College. Are you going to put up with that? Because institutions that act like this are not helping young people to be productive and independent adults. They are teaching fear, ignorance, and subservience.

If you feel strongly about it, you could tell Bergen Community College on its Twitter Account or Facebook page.

Update: Bergen made a statement doubling down:

"The referenced incident refers to a private personnel matter at Bergen Community College. Since January 1, 2014, 34 incidents of school shootings have occurred in the United States. In following its safety and security procedures, the college investigates all situations where a member of its community – students, faculty, staff or local residents – expresses a safety or security concern."

There are at least two maddening components to this. First, they didn't just "investigate" — they suspended the professor and made him see a psychiatrist because he posted a picture of his daughter in a wildly popular t-shirt from pop culture. Second, the statement is an implicit admission that the college refuses to exercise critical thinking about the complaints it receives. There is no minimally rational connection between school shootings — or any type of violence — and a picture of someone's kid in a pop-culture t-shirt. The college is saying, in effect, "complain to us about your angers or fears, however utterly irrational, and we will act precipitously on them, because OMG 9/11 COLUMBINE TEH CHILDREN." Shameful. Ask yourself: what kind of education do you think your children will get from people who think like this?

Michael Mann Files Anti-SLAPP Motion Against Mark Steyn's Counterclaims

Last month I critiqued Mark Steyn's counter-claims against Michael Mann in Mann's defamation suit, and predicted that Steyn may have subjected himself to an anti-SLAPP motion.

Yesterday Steyn revealed that Mann has, indeed, filed such a motion.

The motion is here. It's colorable, at least. It makes many of the arguments one would expect when a pro se defendant counterclaims against the plaintiff for suing the defendant.

Do not misconstrue this as bragging that I was particularly insightful or clever. I wasn't. This was a consequence of Steyn's counterclaims that anyone reasonably acquainted with First Amendment law and anti-SLAPP statutes predicted.

Steyn's complaint seems to be that the anti-SLAPP statute hasn't protected him effectively even though his speech is protected by the First Amendment, that even with the statute the litigation has been lengthy and extremely expensive, and that the system is broken. I believe all those things are true. But I don't see that Steyn's approach of going pro se, railing against the court, and raising questionable claims is one that is rationally calculated to produce a better result. To me it too closely resembles the losing strategy of people who refuse to acknowledge the court's authority at all.

I acknowledge that I am a practitioner with a practioner's biases. Steyn, on the other hand, is a writer and advocate of political philosophies rather than of clients. He's free to abandon the strategy urged by lawyers of employing the dry and tedious procedural strategies available to him in favor of spectacle. Perhaps it will even produce a satisfactory result, eventually. But many, if not most, important American free speech victories have been won by time-consuming, expensive, and painstaking legal machinations. It may not be right, but it's true. Steyn would be better served by finding and listening to pro bono First Amendment attorneys. I'm confident there are some that would help him.

Meanwhile, you can support Steyn's legal fight against Mann here. Though I think Steyn's approach is reckless, I also think he is in the right on the free speech issue.

LEAVE HOUSTON CITY ATTORNEY DAVID M. FELDMAN ALONE

ATTENTION ENTITLED MISCREANTS IN HOUSTON AND ELSEWHERE:

You may believe that the First Amendment to the United States Constitution gives you a right to petition the government for the redress of grievances. You may also believe that Article I, Section 27 of the Texas Constitution gives you the same right. But those rights must yield to the personal inconvenience and/or annoyance of your betters in government, specifically including but not limited to Houston City Attorney David M. Feldman and the other officials of that city.

SHUT YOUR PIE HOLE YOU NOISY NOISOME VILLEIN.

SHUT YOUR PIE HOLE YOU NOISY NOISOME VILLEIN.

Look, you pack of sticky-fingered dawdlers, these are busy, busy people, doing important government things that you cannot possibly understand. They don't have time to be distracted by your email campaigns addressing things you have the gall to think they ought to do, let alone respond to your confused and ill-penned entreaties. So CEASE AND DESIST. Go back to the way things are supposed to be: your leaders do government and you sit there and take it. Don't make Houston City Attorney David M. Feldman tell you again:

Robert – Please consider this as a formal demand that your client, Uber, cease and desist from transmitting or aiding in the transmission of form e-mails to City officials regarding the adoption of an ordinance to accommodate their enterprise. Despite my informal request to you by telephone on Monday, the excessive number of e-mails has gone unabated, to the point that it has become harassing in nature and arguably unlawful. Failure to cease and desist will be met with appropriate action by the City.

Do you hear that, you pack of querulous intermeddlers? ARGUABLY. UNLAWFUL. By God you had better take that seriously, whatever the so-called Constitutions of the United States or Texas say, because that legal opinion comes from a man who "has been named to Texas Super Lawyer (2004-2009)," which means that he takes marketing very seriously, which in turn demonstrates that he is not a man to be trifled with. No sir. He is paid $350,000 per year to give legal opinions like that so you know they must be of the highest quality.

No go back to watching wrestling or eating pork rinds or whatever it is you normally do when you aren't interfering with the duties of your leaders.

The Kaley Forfeiture Decision: What It Looks Like When The Feds Make Their Ham Sandwich

Yesterday, in Kaley v. United States, the United States Supreme Court ruled 6-3 that a criminal defendant has no right to challenge the pretrial freezing of assets based on a forfeiture allegation in a grand jury indictment, even if the criminal defendant needs those very assets to pay his or her attorney of choice.

The question presented was not whether assets can be frozen before trial — it's old news that they can — or whether they can be frozen even if it deprives the defendant of the ability to pay counsel. The question presented was whether the defendant could ask the judge to review the grand jury's probable cause finding in the course of challenging the freeze. The Court found that the defendant had no such right, because of the trust we place in the grand jury:

A grand jury has already found probable cause to think that the Kaleys committed the offenses charged; that is why an indictment issued. No one doubts that those crimes are serious enough to trigger forfeiture. Similarly, no one contests that the assets in question derive from, or were used in committing, the offenses. See supra, at 5. The only question is whether the Kaleys are constitutionally entitled to a judicial re-determination of the conclusion the grand jury already reached: that probable cause supports this criminal prosecution (or alternatively put, that the prosecution is not "baseless," as the Kaleys believe, supra, at 5). And that question, we think, has a ready answer, because a fundamental and historic commitment of our criminal justice system is to entrust those probable cause findings to grand juries.

As Scott Greenfield puts it:

Indictment = Probable Cause

Forfeiture = Probable Cause

Indictment = Forfeiture

Others, including Scott, have explained what this means: prosecutors can deprive you of the effective defense of your choice by aggressive use of forfeiture statutes. I have seen it done to my clients.

Rather than tread over the ground well-described by my colleagues in the criminal defense bar, today I'd like to describe something else for you: what a federal grand jury proceeding looks like. From 1995 through 2000, I presented cases of varying complexity to federal grand juries as a federal prosecutor in Los Angeles. That experience did not inspire confidence in the process. Rather, it taught me that the adage that a grand jury will indict a ham sandwich is an understatement. A better description would be that the prosecution can show a grand jury a shit sandwich and they will indict it as ham without looking up from their newspapers. The notion that the Supreme Court relies upon — that the grand jury has a "historical role of protecting individuals from unjust persecution" — is not a polite fiction. A polite fiction would have some grounding in reality. It's an offensive fiction, an impudent fiction, a fiction that slaps you across the face and calls your mother a dirty bitch.

(more…)

Controlling Public Art By Lawsuit: Japanese-American Citizens Sue To Remove "Comfort Women" Memorial

I have written about many maddening lawsuits at Popehat. But I cannot remember a lawsuit that so immediately repulsed and enraged me.

During the Second World War, the Empire of Japan sexually enslaved women — at least tens of thousands, and perhaps hundreds of thousands — to be raped by its troops. They were forcibly seized from the countries Japan occupied, primarily Korea. Though Japan officially apologized in 1993, in recent years right-wing forces in Japan have been seeking to retract those apologies, asserting that the enslaved women were actually voluntary prostitutes, or that the Empire itself wasn't involved in any coercion. This attempted walkback can best be understood in the broader context of Japanese nationalist politics, in which right-wing politicians play to their base by doing things like visiting shrines honoring war criminals.

Now Japanese-American plaintiffs, served by American megafirm Mayer Brown, are pursuing the agenda of reactionary Japanese politicians through despicable litigation.

Glendale, California is a suburb of Los Angeles. I grew up next door and still live there. It's incredibly diverse with many thriving ethnic communities. In 2013 the City of Glendale erected a modest memorial to the comfort women of World War II in a public park next to the library. Japanese politicians were enraged and have repeatedly demanded that the memorial be removed. The federal lawsuit filed by Mayer Brown seeks to have the memorial removed by force of law.

The plaintiffs in the lawsuit — which I have uploaded here — are Glendale resident Michiko Shiota Gingery, Los Angeles resident Koichi Mera, and GAHT-US Corporation, which says it is in the business of providing "accurate and fact-based educational resources to the public in the U.S., including within California and Glendale, concerning the history of World War II and related events, with an emphasis on Japan’s role." The plaintiffs complain that the presence of the comfort women memorial in Glendale causes them to suffer "feelings of exclusion, discomfort, and anger because of the position espoused by her city of residence through its display and endorsement" of the monument, and that they avoid the park because it shows a "pointed expression of disapproval of Japan and the Japanese people" and diminishes their enjoyment of the park. Though the lawsuit discusses a controversy over what the Empire of Japan did to women in the war, the complaint unsubtly conveys a position: "These women are often referred to as comfort women, a loose translation of the Japanese word for prostitute."

Plaintiffs argue in part that the City of Glendale did not follow its own rules in approving the exact language on the memorial. But their primary argument — the most shocking one — is that the City of Glendale cannot erect such a memorial because it violates the Supremacy Clause of the U.S. Constitution and interferes with the federal government's sole right to conduct U.S. foreign policy.

Glendale’s installation of the Public Monument has a direct impact on U.S. foreign policy that is neither incidental nor indirect. By installing the Public Monument, Glendale has taken a position in the contentious and politically sensitive international debate concerning the proper historical treatment of the former comfort women. More specifically, given the inflammatory language used in the plaque that is prominently featured alongside the statue, Glendale has taken a position at odds with the expressed position of the Japanese government.

Though the plaintiffs make this argument about the comfort women memorial in Glendale, it is nearly limitless in its application. For instance, though this fight is over a memorial, it could just as easily be about a city council resolution recognizing a day to remember some historical event. Similarly, though this fight is about the agenda of reactionary Japanese forces that seek to suppress discussion of wartime conduct, it could just as easily be about a hundred other historical disputes. If you think that's mere speculation, think again. Glendale, California and the surrounding communities are also home to one of the largest Armenian diaspora groups in the United States. Will Mayer Brown next be suing to force the removal of memorials to the Armenian Genocide, or to prohibit city councils from recognizing it, because it is extremely controversial to apologist forces in Turkey? Given the delicacy of U.S. relationships with the new government of Afghanistan, will someone use the federal courts to police the language of civic war memorials and commemorative statements across the nation, to make certain that they portray the Afghans as our allies?

This is not a First Amendment issue, exactly, because government entities don't have First Amendment rights. But it is an issue of federalism, of local self-determination, and of citizenship. Local citizens, through their local elected government, wished to recognize a historical atrocity using local government money on local government land. Their city did not purport to engage in negotiation with any foreign government or to take any position on behalf of the United States — they just took a position on behalf of its citizens. They did not do anything prohibited by the Constitution, like establishing a state religion. The notion that the federal government or the federal courts should regulate this expression is noxious.

Moreover, the argument against it is vague, unprincipled, and endlessly malleable. If a case like this succeeds, what will the courts say to a Holocaust denier who argues that a memorial is too harsh in condemning Germany, a nation with whom we have dicey relations? The plaintiffs here might argue that the difference is that recognition of the Holocaust isn't controversial and wouldn't anger most Germans, while the comfort women issue has angered Japanese politicians. But that's just another way of saying that foreign politicians should be able to dictate what American towns put on their civic memorials. The more that foreign politicians are willing to make demands and issue denunciations, the less free American towns would be to commemorate historical events. This would drive exactly the sort of entitled, thuggish behavior that Japanese politicians have shown here, issuing churlish demands that a foreign city shut up about their nation's history.

This lawsuit is thoroughly contemptible. It should fail, and everyone involved should face severe social consequences.

Edited to add: It occurred to me what this reminded me of: Croat lawfare trying to get Bob Dylan charged with hate speech for talking about Croat atrocities.

Rep. Steve Stockman (R-TX) Files Highly Questionable Defamation Suit

Steve Stockman is a Republican Member of Congress from Texas currently running for Senate on the "should we impeach President Obama" platform. Steve Stockman's angry. Not Texas-shoot-someone-or-wear-stupid-hats angry. Suing angry.

Stockman has recently sued Texans for a Conservative Majority over their campaign ads and communications against them. He says they're guilty of some of the most "outrageous, malicious defamation ever recorded in Harris County." Stockman complains that the defendants defamed him by saying that he was "jailed more than once," that he was "charged with a felony," and that he violated ethics rules.

There are a number of problems with this suit.

First problem: as a public figure, Stockman will have to prove that the defendants made false statements against him with actual malice — meaning knowing that they were false or with reckless disregard to their truth or falsity. But as the Dallas Morning News reports, Stockman previously admitted to newspapers that he had been jailed several times and charged with a felony:

Tonight, Rep. Steve Stockman accused a group that supports Sen. John Cornyn of lying about him, by asserting that he had been “jailed more than once” and was “charged with a felony.”

That is strange, because Stockman has admitted to these facts, several times.

“I may have been in jail a couple of times, two or three times,” he told this newspaper.

As for the felony charge, that stemmed from the time his girlfriend hid three Valium tablets in his underpants when he was reporting for a weekend in jail. “When they found that they charged me with a felony,” he told the Houston Chronicle.

I suppose it's possible that Stockman actually means to complain about some other unspecified statements defendants made that don't match things he's already admitted are true. However, as a general rule, if a defamation plaintiff doesn't list a false statement in their complaint, you can predict that either (1) the statement they are complaining about is a non-actionable statement of opinion and they are trying to hide that fact, or (2) it doesn't exist. Remember what we say around these here parts: vagueness in a legal threat is the hallmark of meritless thuggery.

So: it's not clear how the defendants could have committed defamation by repeating something Stockman previously admitted. How can he prove that it's false, let alone that they knew it was false or were reckless about its falsity? Perhaps Stockman means to suggest that it's reckless to take a Member of Congress at his word, an argument with some appeal. Or perhaps Stockman's argument about the ethics charges has merit.

Next problem: in his complaint, Stockman repeatedly argues that truth is not a defense to saying these things about him:

Even if true, which it is not, truth is not a defense to this statement.

That's pure bullshit, and the attorney who asserted it is either dishonest or an idiot. "Whether the plaintiff is a public figure or not, falsity is always an element of the cause of action, and truth is an absolute defense to defamation. See Garrison v. Louisiana, 379 U.S. 64, 74, 85 S.Ct. 209, 215, 13 L.Ed.2d 125 (1964) (public figure); Philadelphia Newspapers, Inc. v. Hepps, 475 U.S. 767, 768–69, 106 S.Ct. 1558, 1559, 89 L.Ed.2d 783 (1986) (private figure); Bentley v. Bunton, 94 S.W.3d 561, 580 (Tex.2002) (public figure); Turner v. KTRK Television, Inc., 38 S.W.3d 103, 116 (Tex.2000) (public figure); McIlvain v. Jacobs, 794 S.W.2d 14, 15–16 (Tex.1990) (private figure)." Pardo v. Simons, 148 S.W.3d 181, 186 (Tex. App. 2004). The Supreme Court recently reaffirmed this.

The defendants ought to introduce Steve Stockman and his lawyer to Texas' new and vibrant anti-SLAPP statute, get the case dismissed, and get attorney fees. People considering whether to vote for Stockman ought to bear in mind that (1) someone nominally a member of a party that decries frivolous lawsuits is suing people for saying things about him that he's already said about himself, and (2) someone who takes an oath to uphold the Constitution is stating, falsely and moronically, that the Constitution lets him sue people for saying true things.

He sounds overqualified for the Senate.

Mark Steyn Has A Fool For A Client

Back in 2012 I wrote about Michael Mann's lawsuit against National Review Online, Mark Steyn, the Competitive Enterprise Institute, and Rand Simberg. There's been plenty of water under the bridge since then — the defendants have filed and lost a motion under Washington D.C.'s anti-SLAPP statute, appealed unsuccessfully, re-filed it as a result of procedural hijinks too dull to discuss here, and lost again.

My view of the case is unchanged. I think the statements Mann attacks are best viewed as opinions expressed through vivid rhetoric and hyperbole, rather than statements of literal fact susceptible to defamation analysis. That view is strengthened by the steady progress of the law since 2012 in cases like Cox v. Obsidian Finance, which I discussed last month.2 The tone and rhetorical flair of the statements, the places they were published, and their entire tenor strongly suggest they were argumentative opinions rather than falsifiable statements of fact. Therefore, they ought to be absolutely protected by the First Amendment. In this I agree with Jonathan Adler and Dan Farber.

Quite frankly I also think that the lawsuit is part of a larger effort to conduct the climate change debate by other means, including lawfare — part of the effort to label certain viewpoints as so unacceptable that they do not deserve full legal protection. As an example of the tone I am talking about, consider a cartoon in today's New York Times:

KillingPeopleWhoDisagreeIsFunny

Mann's case may still be resolved on the grounds that he's complaining about protected opinions rather than defamatory statements of fact. Moreover, Mann may not be able to prove that the statements were false, or if they were false, that they were uttered with the requisite mental state. I will not dwell on that point; I'm scientifically illiterate.

I will, however, dwell briefly on Mark Steyn's disastrous response.

First, Steyn is representing himself — he characterized it as "firing" the well-qualified firm that was representing him. Such a defense can be ruinously expensive, and I'm sure that cost was one factor, but as you'll see it doesn't appear that it was the only one.

Second, Steyn has used the opportunity of defending himself to engage in what can only be described as pro-se antics. He's attacking the judges and the system both in print and in legally feckless and argumentative court filings. Is it Steyn's First Amendment right to rail against the judges associated with his case? Of course it is. May a pro se litigant file a motion as a vehicle to rant about the case as a whole, and the law, and society, and the universe at large? Sure. But while such behavior is viscerally satisfying, it tends to produce bad results. Judges are human, as are their law clerks.

Steyn suggests that his behavior is a strategy, of sorts:

As readers may have deduced from my absence at National Review Online and my termination of our joint representation, there have been a few differences between me and the rest of the team. The lesson of the last year is that you win a free-speech case not by adopting a don't-rock-the-boat, keep-mum, narrow procedural posture but by fighting it in the open, in the bracing air and cleansing sunlight of truth and justice.

Third, Steyn has now answered Mann's complaint and filed two counterclaims against Mann seeking $10 million. Steyn's answer and counter-claims are here. The counter-claims are, to put it mildly, problematical. Steyn doesn't state clearly what causes of action he is asserting, but his text suggests he is suing Mann for suing him, and for threatening to sue him and others, and for chilling speech by issuing legal threats. There are many problems with this legal theory. Among them: the litigation privilege generally prevents you from suing people for suing you, or for things they say in the lawsuit. The exception is the tort of malicious prosecution, but to sue someone for malicious prosecution you first must show that you won the case. Steyn hasn't won the case, and can't sue for malicious prosecution. (This is exactly why "I'm counter-claiming against you for suing me!!!" is something you generally only see from pro se litigants. It doesn't end well for them.) Moreover, the litigation privilege often covers threats to sue, treating them as part of the litigation as a whole.3

The bottom line is this: Mann's threats and litigation may well be privileged — immune from suit. If that's the case, then Mann may be able to respond to Steyn's counter-claims with an anti-SLAPP motion of his own. He may win, which would not only require Steyn to reach into his pocket for Mann's legal fees, but would hand Mann a huge and dramatic propaganda victory.4 I know California's anti-SLAPPP statute and litigation privilege well, but I am not an expert on District of Columbia law. But my review of the law suggests that Steyn's counter-claims are, at a minimum, a very risky gambit. Perhaps there is some theory behind them with a sound basis in law; perhaps Steyn is getting competent legal advice. But I am skeptical.

Mark Steyn seems very frustrated and impatient with the flaws and delays of the legal system, and how it has failed to dismiss what appears to be a censorious lawsuit attacking opinion. It's not unreasonable to be frustrated and angry. It's not unreasonable to say that our legal system ought not require this priest caste of lawyers to navigate lawsuits attacking our fundamental rights. It's not unreasonable to say that such things are outrageous, and the public ought to know about them. But it is unreasonable to expect to be able to navigate the existing complex legal system without training and experience. It is unreasonable to expect publicly castigating your judges to produce favorable results. It is unreasonable to expect angry pro se behavior to produce something other than angry pro se results. You can argue that things ought to be different. I do. But, in terms of producing a good result in a particular case, such arguments are like quarreling with the barrel of a gun.

I support the defendants, including Steyn, in their defense of Mann's censorious lawsuit. I would donate to a Steyn defense fund. I would, if asked, try to round up pro bono support for Steyn — though he is a much, much bigger fish in this bloggy ocean that I am and ought not need my help. I've supported Steyn's efforts against censors for years. But I can't support what appears to be either a grand mal seizure of self-indulgence or an ill-considered piece of performance art. Steyn's approach to this makes it significantly less likely that this case will produce a result favorable to free speech. That hurts not just him, but his codefendants and everyone who might face a censorious and politically motivated lawsuit. If Steyn's antics help Mann win, censors everywhere will be emboldened. I hope someone with Mark Steyn's ear convinces him to stop treating this as a show trial.

Cathy Gellis Wins Second Victory Against U.K. Subpoena Seeking To Pierce Blogger Anonymity

Back in October I described how attorney and blogger Cathy Gellis won a significant pro bono victory, quashing Oliver Gobat's subpoena to unmask the blogger behind the St. Lucia Free Press. Gobat, who was suing over blog posts from and about St. Lucia, sued in the United Kingdom, which is to defamation plaintiffs what Walt Disney World is to sticky and demanding children: a fantasy tourism destination. Cathy convinced a California court to quash a subpoena issued here based on the U.K. proceeding; that subpoena to the St. Lucia Free Press's California-based ISP sought the identity of the anonymous blogger. The court quashed the subpoena on the grounds, among others, that the United Kingdom proceedings that generated the subpoena were insufficient and did not comply with domestic free speech or due process requirements. The court even granted Cathy very modest fees and costs — though surely nothing compared to the hours she devoted to the important issues at hand.

But Mr. Gobat and his U.S. attorneys are persistent. They engaged in some rather desultory additional proceedings in the United Kingdom and re-issued the subpoena. Cathy Gellis filed a motion to suppress the subpoena again, and the result is nothing less than an utter rout of Gobat and his attorneys. The California court quashed the subpoena, issued an injunction forbidding Gobat from trying to subpoena the ISP again, and awarded $15,000 in attorney fees to Cathy Gellis, owed jointly by Gobat and his California lawyers.

But why did the court quash the subpoena originating in the U.K.? The court followed California law requiring defamation plaintiffs to make a "prima facie showing" of defamation in order to pierce a defendant's anonymity through discovery. That's not a particularly robust test — unlike the more protective Dendrite test favored in some jurisdictions, it only requires the plaintiff to offer some evidence which, if accepted, would satisfy the elements of defamation. Here, the court found that the statements Gobat complained of appeared to be opinion and hyperbole under American law, not actionable false statements of fact, and that American law controlled in evaluating whether a British subpoena could pierce anonymity in America. In his recommendation to the court, the Judge Pro Tem said this:

Applying the balancing test endorsed by Krinsky v. DOE 6 (2008) 159 Cal.App.4th 1154, 1165, and considering whether a prima facie case of defamation has been stated, the Court finds that the anonymous comments complained of appear to be opinion mixed with sarcasm and hyperbole, rather than objective statements of fact. See discussion in Krinsky v. DOE 6 (2008) 159 Cal.App.4th 1154 at 1175-1178. The Court rules that the 1st Amendment of the U.S. Constitution trumps English law in deciding whether a prima facie case for defamation has been made. Krinsky at 1173, citing Gertz v. Robert Welch, Inc. (1974) 418 U.S. 323, 347 [states may define their own law of liability for defamation, but must remain within Constitutional limits].

In his recommendation to the court, the Judge Pro Tem highlighted why it would be perilous for American courts to pierce the anonymity of speakers just because a foreign court decided that their speech was defamatory:

My view is that the language in this case is not that far removed from that in the leading case of Krinsky — it is aggressively critical, but so over the top that the typical reader, reading in context, would recognize it as a rant—an opinion, possibly from a disgruntled consumer of the real estate, or simply from a gadly.

Under Krinsky, another issue is whether English law should be applied to determine if there is a prima facie case of defamation. Krinsky involved Florida law, so we may be dealing with a case of first impression in California. The cases cited above say “no” if English law has a looser definition of defamation than the U.S. Constitution. I posed a hypothetical to Gobat counsel: if a foreign country had a law stating that any woman who criticizes a man is liable for defamation, would a U.S. court use that law in deciding if there was a prima facie case of defamation for purposes of ruling on a subpoena just like the one in this case?

It's fairly unusual, by the way, for a court to make an attorney fee order jointly and severally payable by a party and the party's lawyer. Why would the court do that here? It might be because the second subpoena still suffered so clearly from the defects of the first. Or perhaps it was because Gobat's counsel implied, in a footnote, that Cathy Gellis might have to start legal proceedings in the U.K. to collect on the modest fees awarded in the prior motion:

Petitioner's apparent suggestion that Gobat's California counsel should be sanctioned so that Petitioner need not "chase down [Gobat] all over the world to recover fees and costs" (Pet.'s Mot. to Quash 9), is an improper one. There is no legal basis for levying expenses against a party's counsel as a proxy for levying those expenses against the party himself. Petitioner cites no statute or case law allowing such a practice. Additionally, Petitioner fails to show how he or she would need to "chase down" Gobat. In the event that Petitioner needs to collect a judgment from Gobat, he or she could easily do so by instituting an appropriate action in the U.K.

That was a tactical error. The right answer was "there is no need to sanction counsel because the party, which is taking advantage of this court's processes, will comply with its orders and pay what it is ordered to pay." This line was a red flag to the judge.

This is a tremendous victory for Cathy, and an important recognition of the state of the law protecting anonymity in California courts. Join me in congratulating her.

Her motion is here, and Gobat's opposition is here, and her reply is here.

Science Fiction Community Generates This Weekend's Buffoonish Defamation Threat

Sean P. Fodera is a science fiction writer who works in the publishing industry. He's angry.

He started out angry over ongoing upheaval in the science fiction and fantasy literature community. That upheaval is mirrored in the gaming community and skeptic community and other communities with devoted and vocal fanbases. It's a conflict between two groups: a group that thinks the communities have a problem with racism, sexism, and harassment and should take steps to address it, and a group that thinks that the first group is engaged in free-speech-suppressing political correctness and should be resisted. A full description of the dispute would be too lengthy for this post.5

The Daily Dot published a post about this ongoing dispute, and in the course of doing so quoted and linked to some of the angrier things that Fodera said about Mary Robinette Kowal, a science fiction author and officer of the Science Fiction and Fantasy Writers of America. Kowal has spoken out against harassment in the science fiction and fantasy literature community, and SFWA is currently a locus of controversy about such allegations and the official reactions to them. In forum threads on SFF.net, Fodera complained at rather tedious length about Kowal, called her things like "incompetent," said that she agitated him in a manner he compared to how dogs agitate him, and sneered that she was a hypocrite for complaining about sexism given how she sometimes dresses:

I find it very funny and ironic that she would jump on this bandwagon. For a long time, her website featured an array of photos of her in a diaphanous white outfit, posing on a beach. No metal bikinis or such, but they were not innocuous writer headshots either. One of them, with her recumbent on the sand with legs exposed, made her somewhat attractive. I also recall she's fond of wearing tight-fitting gowns and plunging necklines when she attends cons and award ceremonies.

I'll have to add "phony" to "incompetent" and "arrogant" in the mental tags I've assigned her.

Girls give up the right to complain about sexism unless they dress conservatively. It is known.

Anyway, if Fodera was angry before, this coverage made him really angry. How dare someone quote him and link to the full quotes! He penned this threat:

I will note that since I now have the name of the writer, and I can prove that the quotes were edited to change their meaning, I have a very good case for a libel suit. I suppose no one noted that I work in the legal profession within the publishing industry, and have taught college courses on the subject.

BTW, as of now, it looks like the article was "shared" 1,200 times already. That makes each of those sharers a part to the libel, and makes each of them equally culpable in the eyes of the law. I'll speak to my attorney first thing tomorrow.

The Streisand Effect predictably ensued. Multiple people — author John Scalzi, for instance — wrote about Fodera's bumptious legal threat, and the Daily Dot article probably got several orders of magnitude more traffic than it otherwise would have.

Though Fodera works "in the legal profession" and has "taught college courses," he does not appear to have a firm grasp of the subject matter.

First, Fodera thinks that the Daily Dot article is defamatory. It isn't. The article quotes things he wrote on the internet. It links to his original text so that the readers can judge for themselves. Fodera seems to think that the Dot article wrongly paraphrases or selectively quotes him. That's a tendentious and unpersuasive reading. Take, for instance, how the Dot quoted and paraphrased him in his dog analogy:

He calls Kowal, who is a Hugo-award-winning author, "an unperson… no one you should have heard of." Then he goes on to compare her to an aggressive dog:

“Oh, I know she has no power over me. Still, I get agitated when I think about her. There was a lot of good I could have done for SFWA, and she was a primary factor in my not being able to do it… In a way, it's like my reaction to dogs… My brain kept saying 'it's a service dog; they're well-trained; he won't hurt you,' but my body wanted nothing more than to dump my bowels and flee…”

But the Dot directly links to Fodera's own words. The Dot description and partial quote is fair and accurate. And the readers can determine that for themselves by following the link.

Is it possible for misquoting someone to constitute defamation? Yes. But the bar is set very high. In Masson v. New Yorker Magazine, the United States Supreme Court examined whether fabricating quotes and attributing them to an interviewee could be defamatory. The court applied the familiar "gist" or "sting" doctrine, saying that misquotes are only "false" for defamation purposes if they materially change the meaning of the quote:

We conclude that a deliberate alteration of the words uttered by a plaintiff does not equate with knowledge of falsity for purposes of New York Times Co. v. Sullivan, 376 U. S., at 279-280, and Gertz v. Robert Welch, Inc., supra, at 342, unless the alteration results in a material change in the meaning conveyed by the statement. The use of quotations to attribute words not in fact spoken bears in a most important way on that inquiry, but it is not dispositive in every case.

Here, the Dot has not materially changed the meaning of Fodera's words. Frankly I don't think they've changed the meaning at all. Moreover, they've linked the words so the reader can review them directly. The Supreme Court's discussion of misquotes was premised in part on the notion that the misquote misleads the reader and gives them no notice that the quote might not be exactly what the speaker said; the Dot's article serves up a way for the reader to read the underlying words if the paraphrase or partial quote interests them. Courts increasingly recognize that linking to one's sources for a challenged statement makes it less likely that it will be treated as defamatory.

Fodera's claim of defamation therefore appears specious.

Second, Fodera appears confident that if the Dot article is defamatory (and it isn't), then anyone who merely links to it is a participant in defamation. That confidence is misplaced; it's not clear whether Fodera is ignorant of the law or merely argumentative about it. While not firmly established in every jurisdiction, the emerging trend is for courts to rule that merely linking to defamatory content does not republish it for defamation purposes. Eric Goldman has good coverage of this issue.

New York, regrettably, has only a mediocre anti-SLAPP statute that wouldn't be of assistance if Fodera is foolish enough to follow up his threats with a lawsuit. But as the sad case of Rakofsky v. The Internet demonstrates, New York judges are still prepared to dismiss frivolous and censorious lawsuits. Moreover, any lawsuit would be an extinction-level event for Fodera's reputation and credibility in the publishing industry, as it ought to be. I would not hesitate to light the Popehat Signal to find pro bono assistance for anyone Fodera menaces.

It's banal to be a trash-talking blowhard on the internet. Fodera could have gotten away with that — there are so many blusterers, and so little time to care about them. But Fodera has transformed himself into something else, something more iconic: the big talker who can dish it out but can't take it. Nobody respects that person. Nobody should. Fodera strikes me as a sad and stunted person, lashing out at someone for holding a mirror up to him.

I sent Mr. Fodera an email seeking comment, and asking for responses to some specific questions, but have not heard back as of the time of this writing.

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

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

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

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

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

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

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

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

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

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

The injunction under review prohibits Ms. Chevaldina from: “directly or indirectly interfering in person, orally, in written form or via any blogs or other material posted on the internet or in any media with Plaintiffs’ advantageous or contractual business relationships”; and “directly or indirectly publishing any blogs or any other written or spoken matter calculated to defame, tortuously interfere with, invade the privacy of, or otherwise cause harm to Plaintiffs.” This injunction improperly burdens Ms. Chevaldina’s speech more than necessary, attempts to enjoin future defamation, and fails to put Ms. Chevaldina on notice as to what she may or may not do under the injunction.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Your Criticism of My Holocaust Analogy Is Like Yet ANOTHER Holocaust

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

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

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

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

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

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

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

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

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

So: indulge yourself if you must. Call the people speaking ill of you a "lynch mob." Call that person criticizing your political screed a "cyber-bully." Cry "witch hunt" when someone doesn't like what you say. Cry "Holocaust" if you're rich and you don't like people pointing out that the system is rigged in favor of the rich.6 But just know that the price of your self-seriousness is the creeping notion that speech is just like action, and that therefore maybe we ought to regulate it a little more.

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