Browsing the archives for the Law category.


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

Law, Politics & Current Events

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

79 Comments

Your Criticism of My Holocaust Analogy Is Like Yet ANOTHER Holocaust

Culture, Law

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

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

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

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

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

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

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

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

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

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

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

138 Comments

British "News" Program Censors Mohammad Cartoon While Covering It

Law, Politics & Current Events

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

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

Well, sort of.

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

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

This resulted:

FEARTHEIROFFENSE

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

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

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

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

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

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

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

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

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

70 Comments

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

Law

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

JP Jassy offers his thoughts as well.

36 Comments

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

Law

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

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

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147 Comments

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.

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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.

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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:

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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.

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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?

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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.

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