Browsing the archives for the Law category.


The Self-Perpetuating Logic Of Censorship

Law, Politics & Current Events

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

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

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

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

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

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

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

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

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

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

29 Comments

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

Law, WTF?

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

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

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

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

Continue Reading »

55 Comments

Monopoly of Force Monday: Kelly Thomas

Law, WTF?

details

I am incapable of adding any comment, except of the variety that would be get me arrested. Whereof one cannot speak, thereof one must be silent

58 Comments

Protecting The Free Speech of Censors: The Crystal Cox Saga

Law

This is how the rule of law works: we extend rights to the very people who would deny us those rights if they had the chance.

Ariel Castro imprisoned young women in his basement without anything resembling due process, but he got a lawyer and his days in court until he thoughtfully offed himself. We protected the Nazis' right to march at Skokie, and say what you want about the tenets of National Socialism, dude, but it doesn't protect the free speech or assembly rights of others. We protect the right of Fred Phelps' family to protest at funerals even though the America of Phelps' dreams is a theocratic hellhole.

So it shouldn't be any surprise that we protect the free speech rights of the disturbed and vengeful blogger Crystal Cox, even though she abuses the legal system in an effort to censor and retaliate against people for criticizing her.

That's how we roll.

Last week the United States Court of Appeals for the Ninth Circuit upheld Crystal Cox's First Amendment rights, and in doing so protected yours, and mine, in important ways. This post is about that decision, and about what Crystal Cox was doing to undercut the First Amendment while the Ninth Circuit was thinking about it. As you will see below, I am one of the people Cox has tried to silence with frivolous litigation even as courts were protecting her right to speak.

Continue Reading »

96 Comments

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

Law

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

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

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

Continue Reading »

98 Comments

The Privilege To Shut Up

Law, Politics & Current Events

One of the most consistent messages I offer here is about interactions with law enforcement, and can be expressed in two words — shut up — although "oh you dumb son of a bitch will you for the love of God shut up" might capture the flavor better.

Continue Reading »

94 Comments

Eventually That Animal Is Going To Turn On You, And You're Going To End Up The Victim!

Law

You have 13 minutes to spare. Do yourself a favor. Waste 13 minutes with Harvey Silverglate.

Many people write for this blog. We disagree about a great many things. But we all agree, I dare say that if this blog has a fundamental idea, it's that eventually, that animal is going to turn on you.

37 Comments

NYPD: Baby, You Know We Love You. Why Do You Make Us Angry Like That?

Law

Back in September, several NYPD officers were confronted with an agitated mentally ill man in Times Square. When — according to the officers — they believed he was reaching for a weapon, they fired three shots with their handguns, missing the agitated man entirely and hitting two citizen bystanders.

Police said officers saw a man on foot weaving erratically through traffic and sometimes blocking vehicles. After approaching him, police said, the man reached into his pocket as if grabbing a weapon, and two officers fired a total of three shots. They missed him but struck a 54-year-old woman in the right knee and a grazed a 35-year-old woman in the buttocks, police said.

The women were taken to hospitals, where they both were listed in stable condition, according to police. Neither had injuries considered life threatening, police said.

The man was taken into custody after a police sergeant subdued him with a Taser. No weapons were found on him.

Police said the 35-year-old suspect was taken to Bellevue Hospital, where he was in stable condition. They described him as "emotionally disturbed."

As long as you ignore the fact that the shooting victims were innocent bystanders, hitting two people with three shots represents unusual excellence in marksmanship for the NYPD, matching another recent incident in which skilled NYPD officers were able to hit their target and nine bystanders with only 16 bullets. Overall the NYPD usually requires about 331 rounds to hit 54 targets, of which 14 will be innocent bystanders, 24 will be dogs, and 16 will be people the NYPD was actually aiming at. Statistically, if you aren't a dog, it is slightly more dangerous to be the person the NYPD was shooting at than a bystander (16 people out of 331 shots for intended targets for a 4.8% hit rate vs. 14 people out of 331 shots for bystanders, a 4.2% hit rate.) NYPD has a better success rate for other weapons, and certain factors, like shooting unarmed people in the back, tend to increase hit rates.

When NYPD officers fire 331 shots, and hit 16 targeted people, 24 dogs, but also 14 bystanders, there is a problem.

That problem is the people who are making the NYPD think they need to open fire.

That's why the District Attorney has indicted Glenn Broadnax, the mentally ill homeless man who created the disturbance in Times Square back in September.

Initially Mr. Broadnax was arrested on misdemeanor charges of menacing, drug possession and resisting arrest. But the Manhattan district attorney’s office persuaded a grand jury to charge Mr. Broadnax with assault, a felony carrying a maximum sentence of 25 years. Specifically, the nine-count indictment unsealed on Wednesday said Mr. Broadnax “recklessly engaged in conduct which created a grave risk of death.”

“The defendant is the one that created the situation that injured innocent bystanders,” said an assistant district attorney, Shannon Lucey.

This is perfectly fair. Look, Mr. Broadnax, you know how the NYPD is. They love the people of New York. They just . . . they just get stressed out and angry sometimes. Why do you have to make them angry like that? Look what you made them do now. Look what you made them do.

126 Comments

I Smell French Blood. Also, Croat.

Law

I smell French blood. Croat blood too. It smells like thuggery, cowardice, officiousness, and petty and insipid bureaucratic tyranny.

Okay. I can't actually smell anybody's blood. That's silly. But I see and hear French cretinism, leavened by Croat entitlement.

The occasion is French and Croat pestering of professional mumbler Bob Dylan. Dylan, interviewed by Rolling Stone, offered some thoughts about race in America:

This country is just too fucked up about color. It's a distraction. People at each other's throats just because they are of a different color. It's the height of insanity, and it will hold any nation back – or any neighborhood back. Or any anything back. Blacks know that some whites didn't want to give up slavery – that if they had their way, they would still be under the yoke, and they can't pretend they don't know that. If you got a slave master or Klan in your blood, blacks can sense that. That stuff lingers to this day. Just like Jews can sense Nazi blood and the Serbs can sense Croatian blood.

Dylan is an American. He was talking about race and culture in America. He was speaking to an American publication. He was being interviewed in Santa Monica, California, which — notwithstanding some French elements — is in America.

Yet French magistrates — acting upon the demands of something called the Council of Croats — have brought "preliminary charges" against Dylan for "public insult and inciting hate" in France:

French magistrates have pressed preliminary charges against Bob Dylan, a poster child of the American civil-rights movement, for allegedly violating antidiscrimination laws in a 2012 magazine interview in which he appears to compare Croatians to Nazis and the Ku Klux Klan.

The probe is a turn of fortune for the iconic American singer in France, where just three weeks ago he was awarded the country's highest cultural award, the Légion d'honneur.

Preliminary charges of "public insult and inciting hate" were filed against Mr. Dylan on Nov. 11, a spokeswoman for the Paris prosecutor's office said Tuesday. That was two days before he was honored by France's culture minister, who called the singer "a hero for young people hungry for justice and independence."

Dylan probably faces a monetary fine, like other celebrities pestered by the French for Wrongthink. The Croats don't want Dylan jailed. They only want to use the French government to coerce a sign of submission from him:

If he apologies we will withdraw the suit,” Ivan Jurasinovic told the Telegraph. “The aim is not to hurt anyone but to hopefully have him say that he didn’t mean what he said and that he regrets it.”

This Croat organization is angry that Dylan associated all Croats with genocide and atrocities. But some Croats are undeniably guilty of atrocities. You can — and should — conclude that not all Croats are morally responsible for the attrocities of some Croats. But that's a rhetorical point, not — at least in a civilized society – a legal limit on speech. If Ivan Jurasinovic doesn't want Croats associated with atrocities and genocide, then he's a damn fool to abuse the mechanism of the state to charge critics with crimes to silence them, because that's how the perpetrators of historical atrocities act. Ivan Jurasinovic's message is "some of my people may have committed genocide but I'm going to have you prosecuted by the government if you talk about it in a way I don't like." Does that sentiment flatter the Croats?

This use of French hate-speech law to police historical and social commentary should not surprise us. "Hate speech" laws will generally be used as weapons in political infighting. They will generally be used to pursue ancient grievances and to punish others for pursuing them. They will generally be used to batter opposing sides in religious and ethnic disputes. That's why, as I've shown in my continuing series on blasphemy law, laws protecting group feelings are often used to persecute minorities and the powerless. Bob Dylan has money, and therefore freedom and power; he's not powerless. But in a system in which the state will use unprincipled force to protect the feelings of a vast array of squabbling interest groups, that power doesn't buy him much other than the ability to pay the arbitrary fine when the state imposes it. Moreover, his prosecution sends a powerful message to the powerless: shut up about grievance-mongering groups, because you might not be able to afford this.

Dylan's rhetorical conceit that people can smell tainted blood is silly and obnoxious. The remedy for that amongst civilized people is to call Bob Dylan silly and obnoxious, to write about it, to speak about it, and to buy some other mumbler's records. Civilized people shouldn't plead for the machinery of the state to grind their rhetorical enemies.

Bob Dylan could yield to French state-sponsored ethnic coercion and apologize to Croats for a rhetorical fillip. He could go to court and defend free speech and ultimately pay the fine when he loses because freedom of expression is not a defense in France. But he could also really impress me: he could tell the French, and the Croats, to fuck right off. He could return — postage due, please — the Légion d'honneur, and tell the French he doesn't want the recognition of thought-policing twits. He could stop traveling to France. He could encourage his artistic friends to stop traveling to France and performing there. He could inspire a new free speech movement amongst the artistic elite. Imagine the power of him telling actors and artists and musicians this: "why do you want to do business with a country that thinks it should be able to launch official proceedings against you for offering your opinion in an interview thousands of miles away in Santa Monica because a mouthpiece for an interest group didn't like what you said?"

After all, if the French want to start asserting aggressive extra-territorial jurisdiction, they should do it like Americans, by killing people with drones and kidnapping them, holding them without due process, and occasionally torturing them. Who would complain about that?

89 Comments

Quasi-Literate Racist Asshole Jim DeBerry of Definitive Television Threatens To Sue Above The Law For Calling His Video Racist

Law, WTF?

If you want to be a quasi-literate racist asshole, go right ahead. It's a free country. There are lots of quasi-literate racist assholes around and it's unlikely you will distinguish yourself. I trust the marketplace of ideas to assign appropriate social consequences to you and your business. I may or may not help distribute those social consequences depending on the degree to which you irritate me.

But when you start threatening to sue people for pointing out that you're a racist asshole, I feel that you are going out of your way to antagonize me. I feel that it's time to put on my cockroach-stomping boots.

You might have seen the coverage at Lowering the Bar or FindLaw or numerous other sites of a breathtakingly racist caricature in a purported law firm advertisement produced by a company called Definitive Television, the vehicle of one Jim DeBerry of DeBar Holdings Ltd. The advertisement features a man dressed up in an Asian-caricature costume using an Asian-caricature voice to recommend a law firm called McCutcheon & Hamner, PC in Alabama. The caricature is a character Definitive TV offers to its clients. Definitive TV is a little defensive about it right out of the gate:

IF YOU ARE ON A SENSITIVE WITCH HUNT OUR SUGGESTION IS TO FOCUS YOUR ATTENTION TO MURDERERS, DRUG DEALERS, CHILD MOLESTERS THAT LIVE NEAR BY YOU.

So touchy!

When Joe Patrice at Above the Law reported on this, two things happened. First, the law firm of McCutcheon & Hamner PC claimed that it had been "hacked" and that it did not approve the commercial. That may or may not be true. Second, Jim DeBerry wrote Above the Law and threatened to sue for suggesting that the advertisement is racist.

The threat is a masterful example of sub-literate drivel from a self-important tool who thinks he's learned law from ten minutes on Google, seven of which were spent looking at lolcats. There's the moronic "it's not racist under this dictionary definition I chose" rhetoric:

We object to the statements of racism, as we do not fit under the legal definition, which is, The belief that race accounts for differences in human character or ability that a particular race is superior to others. 2. Discrimination or prejudice based on race.

There's the bizarre use of commas, odd diction, and weird capitalization that suggest that Jim DeBerry just took a break from sending 419 scam emails:

Furthermore, upon your interview request, we have read MR. JOSEPH PATRICE article/blog

YOU MAY FIND IT ODD THAT I EMAIL YOU BUT I HAVE A BUSINESS PROPOSITION FOR YOU MR. JOSEPH PATRICE. I AM THE QUEEN OF ROMANIA.

Finally, there's the barely-coherent jibber-jabber threat:

We firmly believe MR. JOSEPH PATRICE statements of racism when done with intentional malice and to damage our name for gain of revenue and promotion on his article through your business. Mr. Patrice is not stupid or ignorant, by lacking intelligence or common sense. By all appearances, He is educated and he fully understood the reckless racist statement claims with intentional malice he chose to type and for yourself to distribute when he submitted for article creation in which you accepted. We are currently consulting with another party regarding how we should pursue action against the libel statements made by Mr. Patrice, through your company, and others.

I will accept a retraction and apology related to the racist claims made by MR. JOSEPH PATRICE published by your company.

Let's be clear: Jim DeBerry's legal threat is complete bullshit and shows that he's pig-ignorant in addition to a racist. When Above the Law or any other blog or individual looks at DeBery's douchey video and calls it racist, that's a classic statement of opinion absolutely protected by the First Amendment. Above the Law didn't claim that DeBerry's company produced a racist video based on a secret review of some undisclosed videotape. If that had been the case, DeBerry might argue that Above the Law was implying false undisclosed facts. Instead, Above the Law and other commentators are offering opinions based on a specific disclosed fact — the video. You might not share the opinion that the video is racist, or that it reflects racist attitudes by the people who produced it. That's your prerogative. But calling the video racist — and calling the classless untalented hacks who shat it out racists — is classic opinion. As I have explained before, such an opinion is protected by the First Amendment:

This is not a case of opinion premised on false unstated facts, as if someone said "based on what I overheard Donna Barstow say, she is a racist." Rather it's pure opinion based on disclosed facts — the very cartoons she complains they posted. (Note that this strengthens the fair use argument.) Partington v. Bugliosi, 56 F.3d 1147, 1156–1157 (9th Cir.1995) ("when an author outlines the facts available to him, thus making it clear that the challenged statements represent his own interpretation of those facts and leaving the reader free to draw his own conclusions, those statements are generally protected by the First Amendment.") Such accusations of racism are routinely protected as opinion by the courts. See, for instance, Rambo v. Cohen, 587 N.E.2d 140, 149 (Ind.Ct.App.1992) (statement that plaintiff was “anti-Semitic” was protected opinion); Stevens v. Tillman, 855 F.2d 394, 402 (7th Cir.1988) (Illinois law) (accusations of “racism”); Smith v. Sch. Dist. of Phila., 112 F.Supp.2d 417, 429–30 (E.D.Pa.2000) (granting judgment on the pleadings after concluding that the accusation of racism was an opinion); Martin v. Brock, No. 07C3154, 2007 WL 2122184, at *3 (N.D.Ill. July 19, 2007) (accusation of racism is nonactionable opinion in Illinois); Lennon v. Cuyahoga Cnty. Juvenile Ct., No. 86651, 2006 WL 1428920, at * 6 (Ohio Ct.App. May 25, 2006) (concluding that in the specific context of the accusation, calling a co-worker racist was nonactionable opinion); Puccia v. Edwards, No. 98–00065, 1999 WL 513895, at *3–4 (Mass.Super.Ct. Apr. 28, 1999) (concluding accusations of racism are nonactionable opinion); Covino v. Hagemann, 165 Misc.2d 465, 627 N.Y.S.2d 894, 895–96 (N.Y.Sup.Ct.1995) (concluding statement that plaintiff had “racially sensitive attitude” is not actionable). By contrast, cases finding that accusations of racism were actionable defamation usually involved implication of false facts. See, for instance, Overhill Farms v. Lopez, 190 Cal.App.4th 1248 (2010) (accusation that business fired workers for racial reasons was a statement of fact distinguishable from a mere opinion that farm owners were racist). And those are just the cases I found in about five minutes whilst distracted by yelling at an associate.

Similarly, if I said "I've reviewed his personal papers and Jim DeBerry is illiterate," that might be defamatory, because I'm implying potentially false facts. But that's not what I'm saying. I'm saying that Jim DeBerry's idiotic legal threat, which I've linked, shows that he's less literate than the average penis-enlargement spammer — in addition to being a racist douchebag. That's opinion based on disclosed facts and therefore absolutely protected.

Before closing comments on the YouTube video, someone (consider the diction and grammar, and guess who) from Definitive TV wrote this:

We are respect your 1st amendment right and your freedom of opinion and speech on our comment board and will approve your comments. Due to the overwhelming feedback (50% positive and 50% negative) and at the request of McCutheon & Hamner at Law we have elected to disable the comment thread. We may open the comment section back up soon when we can reply.

Of course, this is wrong. YouTube is private and Definitive TV is private and nobody has a First Amendment right to post comments there if YouTube and Definitive TV don't want them to. But Definitive TV's mention of the First Amendment here is more than a little erratic, given their bogus legal threat to Above the Law. Maybe being a racist douchebag all the time is mentally taxing.

So: don't let the stupid threats of the Jim DeBerrys of the world chill you. Instead, call them out.

And I propose, to commemorate Mr. DeBerry's idiocy forever, that we make "We are respect your 1st amendment right!" a catchphrase for dealing with such censorious thugs.

90 Comments

Shore Dreams Vacation Rentals Sees KlearGear Catastrophe, Says "I Gotta Get Me Some Of That"

Law

The clause at issue in this post has been removed. See last update.

Most people who have read about KlearGear's repulsive non-disparagement clause are shocked and appalled. The fundamental concept — that a company would demand that customers promise not to criticize it as the price of doing business — strikes us as thuggish and un-American.

But KlearGear is not alone in foisting such a clause on its customers.

Meet Shore Dreams Vacation Rentals, which offers rentals in Florida. Shore Dreams has a thoroughly sleazy non-disparagement clause:

Certain websites allow reviews that are unchecked with regard to reasonable sentiment. Guest agrees that even minor unreasonable negative sentiment can unjustly cause damages to owner's future business. Therefore, Guest accepts and is hereby notified that Shore Dreams Vacation Rentals, LLC does not participate in reviews from websites that are not owned or controlled by Shore Dreams Vacation Rentals, LLC and the business transaction between all parties should remain private. This Paragraph is a material provision this agreement. All communications related to this transaction shall remain private. Specifically, Guest and invitees agree not to criticize, make any statement which disparages or post any review on any website unless requested in writing by the Shore Dreams Vacation Rentals, LLC or agent. If any review is posted by Guest or invitee thereof, and found to contain unreasonable negative sentiment in the sole opinion of the Shore Dreams Vacation Rentals, LLC and is not removed within 72 hours (the Review), Guest agrees that a copy of this rental agreement shall serve as Guest's full authorization to request and oblige the third party or website hosting or displaying the Review to remove it promptly upon request by Shore Dreams Vacation Rentals, LLC. Failure to remove the Review will be considered a breach of this Agreement, and Shore Dreams Vacation Rentals, LLC will consider this act to have irreparably harmed by loss of business and goodwill due to violation of this provision. In this event, Shore Dreams Vacation Rentals, LLC will immediately charge Guest a fine of $500 upon sent email notice, which is refundable at compliance of this agreement, and seek damages of up to $10,000 from Guest and Guest agrees to pay all such damages requested by Shore Dreams Vacation Rentals, LLC upon written demand. Guest will pay any additional legal fees necessary to enforce demand should Guest not comply.

So: that means that (1) you can't criticize Shore Dreams without their written permission, (2) if you do you agree in advance that the criticism must be taken down upon their demand, if they decide they feel it is "unreasonable," (3) if you do you owe them a fine of $500, and (4) they can sue and you have to pay them up to $10,000 and their legal fees.

Apparently CNN did a story about this, which I haven't been able to find online. Shore Dreams reacted angrily and rather dishonestly:

The recent story as reported by Pamela Brown on CNN does not reflect our policy accurately and as we explained to Ms. Brown, we strive to encourage our guests to communicate any issues or requests while they are staying with us. In the past we have had a some guests try to demand compensation or refunds after departure by threatening a bad review, while not providing an opportunity for management or the owners to fix any issues while they were in the unit. We don't participate in any of these threats that are unreasonable and untruthful, therefore our policy was implemented to include potential legal fees in the event of a libel lawsuit and any fines reported were grossly exaggerated by CNN. We have many reviews on our website and vacation rental listing sites both positive as well as negative and encourage feedback from all of our guests via online surveys, our mobile app and vacation rental listing reviews. Again, we appreciate your concerns and hope you understand our side of the story as well.

That's their explanation of the non-disparagement clause. But that's not what the non-disparagement clause says. It doesn't just provide for attorney fees in the case of a libel lawsuit — it also has a penalty provision and a substantive promise not to criticize Shore Dreams without their permission. Oddly Shore Dreams posts this explanation right next to the non-disparagement clause that it misrepresents.

I haven't found any indications that Shore Dreams has used its clause the way KlearGear did attack the credit score of a critic. But the potential to do so is there.

Why would you do business with a company that demands that you refrain from criticizing it except through its chosen channels?

Why would you do business with a company that thinks you should pay a $500 fine if you criticize it?

Why would you do business with a company that thinks you should agree in writing that any criticism of it that it doesn't control should be taken down?

Why would you do business with a company that hides ridiculously one-sided non-disparagement clauses in its terms and conditions?

If a company feels entitled to be free of criticism it doesn't control, do you think you can trust that company to provide quality services and treat you fairly and honestly as a customer?

If a company says "you can't criticize us unless we give you permission, and you have to pay a fine if you do, and agree in advance to take down any reviews we don't like," does that company share your values? Does it have values that are worthy of respect? How do you feel about a company like that getting your money?

So. What can you do about companies like this? You could read the terms and conditions of the agreements you accept when you do business with companies. Unfortunately, many people find that too onerous, particularly when the offending legal jargon is buried in lengthy boilerplate. Here's another thing you can do: when a company like KlearGear or Shore Dreams Vacation Rentals hides a thoroughly sleazy and despicable non-disparagement clause it its boilerplate, you can help spread the word about it to warn people. Shore Dreams Vacation Rentals and the people behind it should face the natural and probable consequences of their behavior: contempt and infamy.

Hat tip to Simon.

Edited to add: Via Adam Steinbaugh, here's Christo Properties in Seattle, another home-rental place with a sleazy non-disparagement clause.

NON-DISPARAGEMENT

Tenant agrees not to post any negative reviews referencing Christo or Christo rental property nor use the threat of negative reviews as a tool for negotiation and/or extortion. The definition of negative shall be determined solely by Christo. If tenant does post a negative review of Christo or Christo rental property, tenant shall have 48 hours subsequent to notification by Christo to remove the review. Failure to timely remove the negative review shall result in tenant being liable to Christo for $178.14 per day the review is viewable to the public from the date of notification. Tenant agrees that Christo may charge tenant’s on-file credit card for any fees in this clause.

Because Christo believes that honest reviews are an important part of the vacation rental experience, If contested, tenant may post any type of unbiased internet review after being found true and of fact by any court of competent jurisdiction covered within the geographical area of this agreement.

How generous of Christo to say that Americans may express themselves after a court says they can.

Apparently this is a thing now with some vacation rentals. Seems like a good way to address it would be to start a "bad citizens running bad businesses" list showing the places that use such clauses.

Edited to add: Shore Dreams has removed the non-disparagement clause. In an email to me that she asked me to publish, the manager said this:

Hi Ken, I wanted to email you and let you know that I appreciate your forum as an important function of free speech and recognize that our clause was very restrictive; however it is a very common inclusion in agreements these days, be it right or wrong. Meanwhile I have removed the clause from our rental agreement. I am not an attorney, but a business owner and real estate investor and have worked had to make my business grow in a down real estate market as well as the economic effects of the oil spill. I run the company by myself, which is mainly due to the hardships with real estate and my need to climb out of the economic hole I was in. CNN made us look awful and like we are this huge BIG BUSINESS that doesn’t care, but we do. I work 7 days a week to make this work and have many happy guests over 10 years and over 7000 reservations. We have great approval ratings and reviews on Tripadvisor, Flipkey, VRBO, HomeAway and an A+ rating on the BBB. We are one of the best pet friendly rental companies in the Southeast, which is hard to find. While your forum is great, the emails I am getting are full of profanity and degrading comments. I hope that you will update your column and let them know that we are sorry and have removed the clause and encourage reviews and feedback always. Thanks again for your consideration in advance. Renata, Owner SDVR

Though it was a bad decision to include the clause, I think they've done the right thing by removing it, and should get credit for responding to criticism. We should continue to identify and criticize lawyers and others who encourage such clauses, who ultimately may be harming the people they advise.

71 Comments

Why Is a British-Recognized Esquire Asking Questions in an American Court?

Law, Law Practice, Philosophy, Politics & Current Events

I think I've mentioned that I don't acknowledge the legitimacy of the US government for Spooner-like reasons, and I consider most LEOs thugs.

…and yet, after watching this, I find that there's a part of me – a very small part – that really just wants to curb-stomp Natural Law protesters.

Get off my lawn side, you damned hippie kids!

141 Comments

Bless Her Heart, Cartoonist Donna Barstow Complains To Google About Popehat

Law, WTF?

Remember Donna Barstow? She's the cartoonist with a history of bogus legal threats who got into an ill-considered internet fight with the forum goons of Something Awful when they posted some her cartoons in a thread that criticizes awful cartooning. I wrote about her in July 2012, which resulted in a truly surreal phone call from her. I also wrote about her odd follow-up rant in which she suggested that copyright is a federal crime. Apparently she actually meant that copyright violation is a federal crime. I think.

Anyway, this morning (that is, nearly 17 months after I wrote about her) I got an email from Google indicating that she had complained that my post contained private information:

Hi,

We're writing from Google.com to bring the following page to your attention:

http://www.popehat.com/2012/07/06/cartoonist-donna-barstow-engages-in-modern-online-version-of-hey-guys-watch-this/

A Whois search indicated that you're the host for this page.

A concerned user contacted us to report that handwritten signature is published on this page. We hope that you'll assist this individual in restricting access to this private information by removing the page from the web. If it's changed to return a true 404 error via the http headers, please let us know and we'll also remove the listing from the Google index.

We appreciate your assistance. Should you have any questions, please don't hesitate to contact us.

Regards,
The Google Team

On 11/18/13 15:54:25 donnabarstow@gmail.com wrote:
your_name: D. Barstow
email: donnabarstow@gmail.com
webmaster_info_live: agree
number_url:

http://www.popehat.com/2012/07/06/cartoonist-donna-barstow-engages-in-modern-online-version-of-hey-guys-watch-this/

results_url_ssn:

https://www.google.com/search?q=donna+barstow&ie=utf-8&oe=utf-8&aq=t&rls=org.mozilla:en-US:official&client=firefox-a&channel=fflb

webmaster_info_contacted: agree
webmaster_info_whois:

http://www.networksolutions.com/whois/results.jsp?domain=popehat.com

hidden_subject_signature: Your personal information removal request for a
handwritten signature

As far as I can tell, Ms. Barstow has used a Google tool asking Google to remove my post about her from Google's search results. Her premise is that I published "private information" about her — to wit, her "handwritten signature."

There's only one place Ms. Barstow's signature appears in my post about her — it's in her cartoon about Mexico, which I put in the post to comment upon it, criticize it, and report on ongoing allegations that some of her cartoons are racist or otherwise obnoxious. It's the signature that she displays to the world in all of the cartoons she publishes. It's "private" in the sense that you can't see it unless you look at one of her cartoons on her web site or published elsewhere by her.

I've written back to Google. I presume they won't fall for what I can only characterize as a dishonest — and even fraudulent — attempt to de-list criticism.

Seriously?

I've written Ms. Barstow seeking comment. I'll update this post if I get a reply.

43 Comments

The First Amendment Protects Satire Even When Reckless, Stupid, Or Ideology-Addled People Fall For It

Law, Politics & Current Events

Someone once said — and I wish I could figure out who it was — that all satire is a shared joke between the writer and the reader at the expense of a hypothetical third person — the dupe — who takes the text at face value.

Of course, sometimes the dupe is not hypothetical.

Continue Reading »

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D.C. Circuit: First Amendment Trumps Birthers, Stupid People, Walruses

Law

The United States Court of Appeal for the District of Columbia Circuit today handed a victory to Esquire Magazine and a bitter defeat to Joseph Farah of WorldNet Daily and author Jerome Corsi, who are widely known as critics of the Obama Administration, conspiracy theorists, birthers, and repeat sexual abusers of walruses.

Equire's victory, and Farah's and Corsi's salty defeat, ended a defamation lawsuit Farah and Corsi brought against over a satirical article lampooning Corsi's book "Where's the Birth Certificate? The Case that Barack Obama is not Eligible to be President, With Comments On How Walruses," which Farah was publishing and distributing to his (for want of a better word) readers. The article portrayed Farah and Corsi deciding to withdraw and pulp the birther expose on the grounds of inaccuracy:

In an exclusive interview, a reflective Farah, who wrote the book's foreword and also published Corsi's earlier best-selling work, Unfit for Command: Swift Boat Veterans Speak out Against John Kerry and Capricorn One: NASA, JFK, and the Great "Moon Landing" Cover-Up, said that after much serious reflection, he could not go forward with the project. "I believe with all my heart that Barack Obama is destroying this country, and I will continue to stand against his administration at every turn, but in light of recent events, this book has become problematic, and contains what I now believe to be factual inaccuracies," he said this morning. "I cannot in good conscience publish it and expect anyone to believe it."

In an odd detour, Esquire's article also reported upon a 2010 incident in which Farah and Corsi, visiting an aquarium during a World Net Daily team-building exercise, rushed the stage during a children's show and began sexually abusing a performing walrus to the gasps and horrified screams of onlookers. "TAKE THAT KENYAN FASCIST," Farah and Corsi reputedly screamed, although the aquarium's presenter had specified that the walrus was indigenous to the Pacific. Esquire writer Mark Warren speculated that the outburst was spurred by the revelation that the walrus was named "Barry."

Although Esquire updated the story to explain that it was satirical, at least as to the book, Farah and Corsi sued, claiming that many booksellers and retailers had taken the story literally and that their sales had suffered as a result and that a recent excursion to Sea World had been "tense." The federal trial court granted Esquire's motion to dismiss Farah's and Corsi's complaint, finding that the article was clearly satirical — and therefore not a statement of fact subject to defamation analysis — and that the court could take judicial notice under Federal Rule of Evidence 201 that Farah and Corsi were in fact sexual abusers of walruses because, in the words of that rule, that fact "can be accurately and readily determined from sources whose accuracy cannot reasonably be questioned."

Today the D.C. Circuit affirmed that decision. The court explained that only false facts can be defamatory under the First Amendment. Whether satire can be taken as a statement of fact — as opposed to ridicule — must be determined based on how a reasonable reader familiar with the full context would take it:

To determine whether Esquire’s statements could reasonably be understood as stating or implying actual facts about Farah and Corsi and, if so, whether those statements were verifiable and were reasonably capable of defamatory meaning, the “publication must be taken as a whole, and in the sense in
which it would be understood by the readers to whom it was addressed.” Afro-American Publ’g Co. v. Jaffe, 366 F.2d 649, 655 (D.C. Cir. 1966) (en banc). “[T]he First Amendment demands” that the court assess the disputed statements “in their proper context.” Weyrich, 235 F.3d at 625. Context is critical because “it is in part the settings of the speech in question that makes their . . . nature apparent, and which helps determine the way in which the intended audience will receive them.” Moldea II, 22 F.3d at 314. “Context” includes not only the immediate context of the disputed statements, but also the type of publication, the genre of writing, and the publication’s history of similar works. See Letter Carriers, 418 U.S. at 284–86;
Moldea II, 22 F.3d at 314–15.

Farah and Corsi argued that the story should not be treated as satirical because (1) some people took it literally, and (2) it did not state that it was satire until Esquire supplemented it, and (3) it did not include overt signs of satire. The court disagreed, finding that explicit disclaimers of satire were not required, and that circumstances — including Farah's and Corsi's reputation as birthers and notorious walrus-fuckers — made the satirical nature of the piece adequately clear to someone familiar with them:

With that baseline of knowledge, reasonable readers of “The Politics Blog” would recognize the prominent indicia of satire in the Warren article. Most notably, the very substance of the story would alert the reasonable reader to the possibility that the post was satirical. The essence of the fictitious story was that Farah, a self-described leader (along with Corsi) of the movement to challenge President Obama’s eligibility to serve, see Appellants’ Br. 31, had suddenly and without any warning
decided to recall and “pulp” the Corsi book the very day after it was released. The supposed basis for this decision was President Obama’s earlier release of his long-form birth certificate; yet that release occurred three weeks before Corsi’s book was published, and, as Farah acknowledges, he and Corsi remained (and still remain) committed to the book even after that event. See Compl. ¶¶ 11, 17. After the release of the birth certificate, Farah appeared on MSNBC and published more than 40 articles on WorldNetDaily continuing to promote the book. See Findikyan Decl. Exs. 7, 21, 22–25; Farah, 863 F. Supp.2d at 32. The day of the Corsi book’s release — the day before Esquire posted its fictitious story — WorldNetDaily announced the publication on its website with an article entitled, “It’s out! The book that proves Obama’s ineligible: Today’s the day Corsi is unleashed to tell all about that ‘birth certificate.’”
Findikyan Decl. Ex. 26. It is inconceivable that Farah would reverse course so abruptly, as Esquire’s fictitious story claimed. Readers of “The Politics Blog” would have recognized that the article was “reporting” events and statements that were totally inconsistent with Farah’s and Corsi’s well-publicized views, and could not reasonably have taken the story literally.

The court also noted that satire does not lose its protection just because some people take it literally; rather, that is the nature of satire:

But it is the nature of satire that not everyone “gets it” immediately. For example, when Daniel Defoe first published The Shortest Way with the Dissenters, an anonymous satirical pamphlet against religious persecution, it was initially welcomed by the church establishment Defoe sought to ridicule. See JAMES SUTHERLAND,ENGLISH SATIRE 83–84 (1958). Similarly, Benjamin Franklin’s “Speech of Miss Polly Baker,” a fictitious news story mocking New England’s harsh treatment of unwed mothers, was widely republished in both England and the United States as actual news. See MAX HALL, BENJAMIN FRANKLIN &
POLLY BAKER:THE HISTORY OF A LITERARY DECEPTION 33–35, 87–88 (1960).

First Amendment rights, in other words, are limited neither by the skill of the writer nor the stupidity of a particular audience.

In short, the D.C. Circuit agreed with the trial court that because reasonable readers could not take the Esquire article about stating facts about Corsi's and Farah's book, the article could by definition not be defamatory. The Court made shorter work of the walrus issue, terming it "regrettable" and "more suited for state court, or possibly for some sort of televised court." Ultimately the court rejected Corsi's and Farah's walrus-related claims, ruling that even if the trial court erred in taking judicial notice of their odobenusophile habits, the evidence was sufficient to support the judgment:

Appellants take issue with the portion of the Esquire article suggesting that they were "repeat" abusers of walruses. The trial court did not err here. Even if the evidence of the San Diego Incident were insufficient, the 2010 Aquarium Incident technically demonstrates repeated conduct, as the testimony was that Corsi and Farah took a hiatus mid-attack to purchase Dippin' Dots from a vendor. (RT 124.) Moreover, Farah's objection that there was no evidence that he was attempting to cause sexual gratification to the walrus — and, indeed, clear and convincing evidence that he lacked the capacity to do so — is immaterial, as that is not an element of the offense under the relevant animal cruelty statute. We will not address Corsi's and Farah's claim that the walrus in the 2010 Aquarium Incident was actually a seal "foisted upon the public in a deception of historical proportions," as they did not brief that issue below. Finally, we note that damages are an element of defamation. Even if Farah and Corsi had shown that they were falsely accused of sexually assaulting a walrus — and they have not — they have not presented evidence that being associated with such conduct would harm their reputation amongst their audience of World Net Daily Readers. Indeed, Esquire offered evidence to the contrary. See Trial Record at 350 (Federal complaint by O. Taitz asserting that walrus was part of civil rights conspiracy against her); 387 (Tweet by T. Kincannon asserting walrus was sexually promiscuous and part of "thug culture"), 411 (J. Taranto column calling for walrus to be deported).

Corsi's and Farah's defamation claim was fundamentally a SLAPP suit, and it's a good thing that it failed. Courts should protect satire broadly.

Hat tip (except for the walrus part) to Alison Frankel.

UPDATED TO ADD:

World Net Daily has a very angry post up about this decision, followed by comments that are, to the extent I could follow them, also very angry. They wouldn't approve my comment posting a link to this post. So I had to send my message by other methods:

Ken

When will courts protect your rights?
As long as Obama is in office, not any time soon.
Lamentably he controls the courts through his sycophants.
Really it's time for someone to do something about it.
Unfortunately not enough people grasp the problem.
Soon, though, they will.

Strong Americans will speak up and take action.
Everyone will take note.
X-men will seem weak compared to an informed American electorate!

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