There are very few people who have inspired as much immediate contempt from the authors of Popehat as Monet Parham-Lee, the California state employee who, with the assistance of the crypto-totalitarian Center for Science in the Public Interest, sued McDonald's because she finds it difficult to say "no" when her daughter demands a Happy Meal.

Yesterday Judge Richard Kramer of the San Francisco County Superior Court dismissed the case. I'm looking for a written order, if there was one.

A small victory against nanny-statism is still a victory.

Pardon me, President Obama?

Ultimately, I’m confident that the Supreme Court will not take what would be an unprecedented, extraordinary step of overturning a law that was passed by a strong majority of a democratically elected Congress. And I'd just remind conservative commentators that for years what we’ve heard is, the biggest problem on the bench was judicial activism or a lack of judicial restraint — that an unelected group of people would somehow overturn a duly constituted and passed law. Well, this is a good example. And I’m pretty confident that this Court will recognize that and not take that step.

Pardon me, Mr. President, but kindly think this thing through before you talk, or shut the fuck up. This is incoherent. You don't agree with conservatives about "judicial activism." Even conservatives don't agree with the conservatives about "judicial activism." You're supposed to be on the side the supports a strong judiciary evaluating the constitutionality of laws, whether they are popular or not. Granted, your side has completely abandoned the concept of judicial review of the scope of the government's power to do things, as opposed to whether government actions violate enumerated or unenumerated rights. But Mr. President, this can't be your argument. You are not arguing on the internet. "This is a bad argument, and generally I don't agree with it, but because they use it, I will use it too, that's only fair," is not a position for a leader of any sort, let alone the leader of a party or of the "free world."

Ahem.

Pardon me, Judge Jerry Smith?

Smith: Does the Department of Justice recognize that federal courts have the authority in appropriate circumstances to strike federal statutes because of one or more constitutional infirmities?

Kaersvang: Yes, your honor. Of course, there would need to be a severability analysis, but yes.

Smith: I’m referring to statements by the president in the past few days to the effect…that it is somehow inappropriate for what he termed “unelected” judges to strike acts of Congress that have enjoyed — he was referring, of course, to Obamacare — what he termed broad consensus in majorities in both houses of Congress.

. . . .

I would like to have from you by noon on Thursday… a letter stating what is the position of the attorney general and the Department of Justice, in regard to the recent statements by the president, stating specifically and in detail in reference to those statements what the authority is of the federal courts in this regard in terms of judicial review. That letter needs to be at least three pages single spaced, no less, and it needs to be specific. It needs to make specific reference to the president’s statements and again to the position of the attorney general and the Department of Justice.

Look, Your Honor, I know that I've judicial bloviation is often more about generic judicial self-indulgence than it is about the specific matter bloviated about. But this was unjudicial, unprofessional, and an embarrassment to the rule of law. You took an off-the-cuff comment at a press conference by the President and turned it into a homework assignment for a lawyer at oral argument in a fit of political pique. You've been on the bench since the Reagan administration, Your Honor, and if you're going to tell me you've never heard a Republican administration gripe about judicial activism, or that you've heard it but never bothered to give the Reagan or Bush I or Bush II Department of Justice an assignment on judicial review, I'm going to tell you that you're a partisan hack.

Gentlemen. Please. Mind the dignity of your offices, if you would.

First of all, remember what I said before: the most important thing you need to know about "blogger" and "investigative journalist" Crystal Cox is that she is the sort of person who will retaliate against a critic by registering a domain in the name of the critic's three-year-old daughter as part of a campaign against him.

But there's something else you should know, too: Crystal Cox is not a sincere supporter of free speech. Crystal Cox is not a defender of the First Amendment. Crystal Cox supports free speech for Crystal Cox, but for her own critics, Crystal Cox is a vigorous (if mostly incoherent) advocate for broad and unprincipled censorship.

This should not surprise us. As I mentioned before, free speech cases often involve defending vile speech by repugnant people. Nearly as often, those repugnant people are no respecters of the rights of anyone else. Do you think the Nazis who marched at Skokie, if they had their way, would uphold the free speech rights of the religious and ethnic minorities who protested them? Do you imagine that Fred Phelps' church, given its choice, would permit the blasphemous and idolatrous freedoms it rails against?

No. We extend constitutional rights to people who, given the opportunity, would not extend the same rights to us. That's how we roll.

Crystal Cox is no different. Eugene Volokh and the Electronic Frontier Foundation are appealing the judgment against her to vindicate (through however flawed a vessel) important free speech issues. But just because Crystal Cox wants free speech for herself, that doesn't mean she supports it for others. In fact, she consistently takes the stance that criticism of her is unlawful and will be met with lawsuits and complaints to state and federal authorities.

Take, for instance, her cross-complaint in the Oregon defamation suit against her. She sued a vast array of people, including all the attorneys in the law firm representing the plaintiff suing her, as well as miscellaneous government entities:

For Complalint against Counter Defendants David Aman, Esq Personally and Professionally, Tonkon Torp Law Firm and all partners, associates and of counsel in their professional and individual capacities, Obsidian Finance LLC and any/all affiliates, Kevin Padrick Esq. officially, professionally and personally, David Brown Esq. professionally and personally, Ewan Rose Esq. officially, professionally and personally, Patrick Flaherty Esq., Bend Oregon District Attorney Office officially, professionally and personally capacities, Deschutes County, Stephanie DeYoung, CPA StudebakerDeYoung CPA PC -Stephanie Studebaker LLP , Mark Neuman, Lane Lyons, Brian Stevens, Tim Larkin, Summit Accomodators Inc. and any and all affiliates, Sean Boushie, Lincoln County Montana District Attorney Bernie Cassidy, P. Stephen Lamont, CEO of iViewit Technologies Inc, Robin Clute Personally and Professionally, and John and Jane Does.

In her Cross-complaint, Crystal Cox asserts that all of these people have engaged in a conspiracy to harass and defame her — by suing her for defamation. Crystal Cox can say whatever she wants about you, but if you say "Crystal Cox defamed me," well, that's illegal:

Plaintif has harmed my Oregon Real Estate Brokerage License by filing a frivolous lawsuit and defaming me among potential real estate clients as I am a licensed real estate broker in the state of oregon.

Writing scores of deranged sites blasting strangers through oddly capitalized screeds is fine when Crystal Cox does it, but if anyone puts up a site that criticizes her, that's a "hate blog" and it's actionable:

Counter Defendant Bernie Cassidy aided and abetted Counter Defendant Sean Boushie to continue on hate blogs, and hate groups, and in conspiracy against counter plaintiff.

Registering domain names incorporating the names of enemies and accusing them of crimes is swell when Crystal Cox does it, but if you try to convince others that she's evil, well, that's actionable too:

Stephen Lamont defamed me in sending emails to all iViewit shareholders to join a hate group against me. This group was and is ran by Sean Boushie of Montana, who claims to this day to be working with David Aman of Tonkon Torp and Kevin Padrick of Obisidian Finance to harm my and financially ruin me.

This pattern repeated in Crystal Cox's motion to exclude a witness. (This witness, a hapless fellow who apparently earned Cox's ire by writing a letter to the editor she didn't like, obtained a restraining order against her; she accused him of a raft of offenses and tried to get a restraining order against him, but was rejected by the court.) Once again, the motion shows Crystal's freakishly narcissistic view of free expression: Crystal Cox can accuse everyone she wants of anything she likes and say any terrible thing about them, but if someone criticizes her in vivid terms, that's "extreme hate, harassment and intimidation" justifying excluding them as a witness.

Finally, consider Crystal Cox's response to the recent attention to her behavior by blogs including this one, not to mention stories at Forbes and the New York Times. Writers, including me, have presented Crystal Cox's own words, her own domain registrations, her own emails, and her own court documents, asked readers to evaluate them, and asserted that they show that Crystal Cox is an evil person who has engaged in what appears to be a campaign of extortion. Crystal Cox crows about her own supposed right to attack strangers on the internet without evidence or reason (or diction, or grammar, or a grasp of reality.) Does she extend that same right to her critics? Of course not. Here's how she plans to respond to her critics:

And now Kashmir Hill of Forbes, David Carr of the New York Times, Marc Randazza, Kenneth P. White of Popehat.com, Tracy Coenen, Randazza Legal Group, have launched a campaign to set up a Blogger for Extortion when I was not accused of Extortion in an Criminal Complaint, nor was I on trial for extortion and now this Lynch Mob has put me under Extreme Duress and ALL will be named in my Federal Hate Crime Filing, Criminal Complaint, Judicial Complaint, FBI Complaint, Attorney General Complaint, Bar Complaint and Department of Justice Complaint.

Crystal Cox is no free speech defender. Crystal Cox is no First Amendment advocate. Crystal Cox is merely that familiar, universally scorned and loathed figure of the playground — the bully who can dish it out, but can't take it.

Every time you think of her, remember: Crystal Cox is someone who will register a domain in the name of the three-year-old daughter of her critic as part of a campaign against him.

Daring state legislators to have me arrested is beginning to feel suspiciously like work.

Last week, you may recall, I sent the Connecticut Joint Committee on the Judiciary a rude post that would probably constitute a crime under the ridiculously overbroad cyberbullying bill they passed. Now a reliable source informs me that bill died in committee. Swell.

But do I get some down time to get some sleep and recover from this miserable chest cold and watch Lena Headey slap Jack Gleeson over and over again? No I do not.

Because fuck you, Arizona.

So tired.

Okay. Here we go. Cowboy up, Ken.

Dear Members of the Arizona State Legislature,

By this post, it is my specific intent to use this digital device — a computer — to annoy and offend you.

I do so because you have passed Arizona H.B. 2549, which provides in relevant part as follows:

It is unlawful for any person, with intent to terrify, intimidate, threaten, harass, annoy or offend, to use a telephone ANY ELECTRONIC OR DIGITAL DEVICE and use any obscene, lewd or profane language or suggest any lewd or lascivious act, or threaten to inflict physical harm to the person or property of any person.

OK. I certainly don't intend to convey any physical threat. And I can't terrify or intimidate you, even with the prospect of revealing you for a pack of morons who ought to be voted out of office — after all, you're in Arizona, where prolonged lawlessness, venality and idiocy seem to be sure paths to electoral victory.

I certainly do mean to annoy and offend you, though. You've been swept up in the moronic and thoughtless anti-bullying craze and consequently passed a bill that is ridiculous on its face, a bill that criminalizes annoying and offending people on the internet. That's like criminalizing driving on the road. By so clearly violating the First Amendment, you've violated your oaths of office. You should be ashamed of yourselves. What kind of example are you setting for the children of Arizona by ignoring the law to pass fashionable rubbish? It is no excuse that you are merely modifying an archaic law to apply it to the internet — you're still enacting patently unconstitutional legislation.

and use any obscene, lewd or profane language or suggest any lewd or lascivious act

Oh, yeah. Also, snort my taint, go to Hell, and go fuck yourselves.

There. I'm a criminal in Arizona. Send some of your cops to collect me. I know it may be temporarily confusing for them, as I'm not brown, but perhaps they can manage.

Come get me.

Cheers,

Ken

Late Friday night I posted my analysis of Crystal Cox's vengeful and freakish assault on Marc Randazza. I discussed how her "oh look I registered a domain in your name, I need money, do you need reputation services" closely resembled a seemingly extortionate email she sent to a previous target of her wrath. I also pointed out the main thing you need to know to evaluate what Crystal Cox is: when she gets mad at you, she'll buy a domain in the name of your three-year-old child as part of an attack on you.

In that post, I argued that the best private response to the sort of gibbering evil Crystal Cox offers is more speech, not litigation. Marc Randazza — whose own three-year-old daughter is a target here — is taking the more-speech road. It works. For example, today David Carr at the New York Times posted a piece about Cox and her behavior, revealing that after his critical piece about her last year she launched a domain attacking him.

Some evidence suggests that this weekend Cox bought up a bunch of new domains. No doubt she'll launch new vile attacks on her growing number of critics. I registered domains in the names of my children, but who knows, maybe she found variations on my name, or my business, or my children's names that I did not anticipate (or could not reasonably afford to buy). That's what she is. That's what she does. Treat her accordingly.

Edited to add: looks like Forbes gets her, too. Note that she also started sites attacking the Forbes reporter based on his prior article on her.

I don't have much time or energy at all to write about this — fighting a bad chest cold — but it looks as if Senator Joseph Lieberman (D-ouchebag Censor) — is seeking to strike a another serious blow against free speech on the internet.

At issue is Section 230 of the Communications Decency Act, which says that hosts — everyone from Google to Facebook to humble little Popehat — is only liable for the content they create, not for the content that others (for instance, thread and forum commenters) put on the internet. It's not an exaggeration to say that this protection is the legal backbone of the modern internet — without it, no site could afford to allow anonymous users or commenters, topics of discussion would be strictly limited by liability-adverse legal teams, and the internet would be a less robust, interesting, and free place.

Apparently Lieberman is about to offer a bill eliminating it.

I wish I could be surprised, but I'm not. Liberman has been making ominous noises about sites hosting material he doesn't like. He's backed not only by people who are foes of free speech on ideological grounds, but those who are foes on economic grounds. And, as we frequently document here, the idea "all you sites have to clean up and police your guests, or get sued" fits perfectly into the insipid nanny-state think-of-the-children "anti-bullying" nonsense so popular now.

Too sick right now to write further. It might be time for another SOPA/PIPA protest. This one is huge.

Please see April 2 update.

Here's the most important thing you need to know about blogger and "investigative journalist" Crystal Cox: when she got angry at First Amendment attorney Marc Randazza, she didn't just register the domains marcrandazza.com and fuckmarcrandazza.com and marcrandazzasucks.com in order to attack him. She registered jenniferrandazza.com and nataliarandazza.com — the names of Randazza's wife and three-year-old daughter.

That's Crystal Cox in a nutshell — an appropriate receptacle.

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Dear Members of the Joint Committee on Judiciary of the General Assembly of the State of Connecticut:

My specific intent in writing this post is to annoy and alarm you.

I am posting this communication to you because of the traits and characteristics that I perceive in each of you, and which I firmly believe you possess. I specifically refer to your venality, your sub-normal intelligence, your poor hygiene, your regrettable oafishness, your indifference to your oath of office under your state's constitution ["You do solemnly swear (or affirm, as the case may be) that you will support the constitution of the United States, and the constitution of the state of Connecticut, so long as you continue a citizen thereof; and that you will faithfully discharge, according to law, the duties of the office of...........to the best of your abilities. So help you God."], and your civil, legal, and constitutional illiteracy. It's not clear to me whether these personal traits and characteristics are the result of poor upbringing, bad pruning on the sad Charlie-Brown-Christmas tree that is your genetic lineage, or the quality identified by philosophers and various Omen sequels as Pure Evil. At any rate, your traits and characteristics inspire me to write about you, and are the subject of my discussion, and I spit upon them like so, ptui.

You have no reason to be in physical fear of me, a blogger on the other side of the country. I am not violent and do not believe in visiting violence upon people like you just because you are oathbreaking censorious twunts. Moral and legal issues aside, there are simply too many of you — including other state legislators like you around the country — and it would be exhausting. I prefer to stay on my couch.

However, it is my sincere hope that by writing to you I will achieve the following:

1. That my message will have a substantial and detrimental effect on your mental health, in that I will help you to realize what an embarrassment to the very notion of responsible self-governance you are, and that you have clawed and bit and scrambled and fought to become dim, petty tyrants; and

2. That my message will have the effect of substantially interfering with your participation in, and ability to benefit from, (a) the academic performance of those of you admirably engaged in remedial math or English classes, (b) with the employment in the Assembly of each of you, and (c) with other community activities or responsibilities (giving speeches, opening strip malls, asking your LAs to write your pro-traditional-marriage speeches while you meet your catamites at the Ramada Inn, collecting your Teamster bribes, etc.). I hope that my message will have that effect because it will show you, and your constituents, that you are worthy of only contempt.

3. Most especially, I hope that this message has the impact of causing you substantial embarrassment and humiliation within the professional community, including the legislative community, the legal community, the political community, the business community, the community of functional illiterates who speechify about education, the community of people who work "liberty" and "freedom" into every speech whilst they find new ways to regulate ever aspect of human existence, and the community of people typically viewed by the general public as slightly more palatable than child molesters but definitely less palatable than car thieves, wife beaters, or lawyers.

Why, you ask?

Well, it's because of Connecticut Senate Bill 456. As the Student Press Law Center reports, you — the members of the Connecticut Joint Committee on Judiciary — have referred Bill No. 456, which expands Connecticut's harassment laws in a stupendously ridiculous and unconstitutional way. How stupendous and unconstitutional? Well, so stupendous and unconstitutional that this blog post could be a crime in Connecticut if the rest of the droolers in your General Assembly approve this turd. Under the current version, it would be a crime to do the following:

(a) A person commits electronic harassment when such person, with intent to harass, annoy or alarm another person, transmits, posts, displays or disseminates, by or through an electronic communication device, radio, computer, Internet web site or similar means, to any person, a communication, image or information, which is based on the actual or perceived traits or characteristics of that person, which:
(1) Places that person in reasonable fear of harm to his or her person or property;
(2) Has a substantial and detrimental effect on that person's physical or mental health;
(3) Has the effect of substantially interfering with that person's academic performance, employment or other community activities or
responsibilities;
(4) Has the effect of substantially interfering with that person's ability to participate in or benefit from any academic, professional or community-based services, activities or privileges; or
(5) Has the effect of causing substantial embarrassment or humiliation to that person within an academic or professional community.

The statute helpfully provides that the crime is committed where the communication is sent or where it is received, apparently meaning that you might assert that I have committed a crime in Connecticut by this post even though I write it in California.

You've joined the moronic headlong rush towards "cyberbullying" legislation that tramples of our heritage of free expression in exchange for a few local news headlines. You've drafted a bill that is stupendously overbroad and chilling of all sorts of protected expression. Frankly, it is not even a credible gesture towards complying with the United States or Connecticut Constitutions. If your lawyers wrote it for you, you need to stop hiring lawyers from gas-station bathrooms and the alleys behind methadone clinics. If you had even a minimal grasp of the power you wield — or if you cared — you would recognize that this statute purports to criminalize all sorts of criticism, argument, and satire based not on any objectively threatening nature, but on the whiny subjective butthurt of the disagreed-with. I'm guessing you'd say you're thinking of the children. But our children are not helped by teaching them to be bad citizens, by teaching them they should look to government for redress when people hurt their feelings, or by steadily weakening their Constitutional heritage in the name of fashionable concerns.

In summary: you are ignorant censorious tools. If your Joint Committee on the Judiciary passes this bill along in anything close to this form, its members should consider this post directed to them all. If the entire General Assembly approves it, it is directed to them as well. If the Governor signs it, he's on the list as well. I will republish the post when the law becomes effective.

Perhaps some of you, members of the Joint Committee on Judiciary, spoke up about this bill. However, so far as I can tell, there's no record of it, and your state does not see fit to attribute the bill to any particular member. At any rate, if your reaction to this bill was anything but immediate denunciation, consider this directed at you as well.

In closing, snort my taint,

Ken

Edited 3/30: Or, sure, you could discuss this in a polite manner like First Amendment demigod Eugene Volokh. I mean, if that's your thing. He's a busy professor, he probably doesn't have time to be extradited to Connecticut.

Ideal clients and ideal political opponents share an important quality: they'll shut up if you tell them to.

James O'Keefe and Nadia Naffe are not ideal clients, and political blogger Patterico is not an ideal political opponent.

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Today I write in praise of First Amendment attorney Marc Randazza.

Frequent readers of the blog know that he's a friend. Today, I'd just like to articulate a few reasons why I admire him.

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A few months ago I pointed out that Andrew Wakefield had sued Brian Deer and the British Medical Journal for defamation. Mr. Wakefield, you might recall, is a widely discredited advocate for the position that vaccines cause autism, a position cherished by people who believe that the scientific method involves believing things very fervently.

In my post I predicted that Wakefield's suit would be an excellent opportunity to test-drive Texas' aggressive new anti-SLAPP statute. As predicted, Mr. Deer and the BMJ have filed an anti-SLAPP motion, which you can read in full here at Mr. Deer's web site.

A fair evaluation of the motion will take a slow and careful reading, which I will eventually undertake. For now, three points: (1) upon a quick read, it appears very strong, (2) note that Mr. Deer and the BMJ "specially appear" to file the motion, preserving their challenge to the Texas court's personal jurisdiction over them (which, hopefully, the Texas court will permit), and (3) if the court finds that the defendants have established that Wakefield's suit is premised on their exercise of protected speech (which the court almost certainly will), then the burden shifts to Wakefield to come forward with admissible evidence sufficient to prove that he can possibly prevail on his claims even in light of the relevant privileges and constitutional protections. In other words, Wakefield will be forced to come forward with actual evidence.

This is one to watch.

Thanks to Mr. Deer for the note referring me to his website and the motion.

I must confess up front: I have a deep and abiding hatred for Louis Vuitton products.

It's not just that they represent ass-ugly pretentiousness. It's a post-traumatic-stress-disorder thing, a leftover of a late '90s drama in which I prosecuted someone for interference with a flight crew for an incident involving a small dog in a Louis Vuitton bag, an incident which involved one side asserting improper restraint with a bejeweled dog leash and the other side asserting the forcible throwing of said dog for emphasis, and which incident eventually led to a professional Kennedy assassination theorist accusing me of participation in a wide-ranging civil rights conspiracy with an international airline conglomerate.

Protip: never accept a case assignment if your normally poker-faced supervisor is snickering when he brings you the file.

Anyway, what I'm saying is take me with a grain of salt here, people. But my bottom line is this:

[The hardest part of making this image was the time I wasted Googling "most pretentious font."]

There's plenty of genuine trademark and copyright piracy out there: people trying to make money off of other people's work, or enjoy it for free. But increasingly, copyrights and trademarks are used by their owners, with the assistance of thuggish lawyers, as weapons to suppress satire, criticism, and comment. We've discussed the trend here before — Forever 21's embarrassing attack on a humor site, Ralph Lauren threatening lawsuits against people who comment on its freakish photoshops of models, Meghan McCain's attempt to use the California "right of publicity" to suppress parody of her awful writing, the TSA attempting to criminalize use of its logo, scummy telemarketers arguing that people criticizing them are violating the trademark in their name, and the Guinness World Records people reacting to a hilarious screenshot with trademark threats. [Now that I look at it, I think we need a tag for this.] Sometimes the copyright and trademark thuggery goes meta, as when jackass attorneys send cease-and-desist letters, claim copyright in the letters, and threaten suit if they are released and discussed.

Anyway, as recent events demonstrate, Luis Vuitton is a repeat offender in this category. Louis Vuitton prides itself in having a large staff of aggressive lawyers. Now, these people are human beings, and as such have value in God's eyes. Everyone needs a job. Some people have jobs, say, coding the nude-NPC skin mods for popular computer games, and their mothers love them too, in a prone-to-sudden-weeping sort of way. So: like TSA agents and obscenity prosecutors, Louis Vuitton's lawyers are technically people with rights. More specifically, they are people trained and paid to be censorious asshats.

The latest example: the Penn Intellectual Property Group at University of Pennsylvania Law School created a poster for its symposium on "fashion law." The poster, in an as-close-to-explicit-as-possible reference to Louis Vuitton's hard-earned reputation for aggression-to-the-point-of-censorious-thuggery, used the same Louis Vuitton pattern you see above, minus my comment. Of course Louis Vuitton lawyer sent a snotty legal threat through its attorney Michael Pantalony. Fortunately, Penn told them to piss off. As Eugene Volokh comments, that was the right stance in response to such attempts to suppress commentary, satire, and parody, especially in such a patently non-commercial context. (Check out the comments to Volokh's post to see links to examples of past Luis Vuitton overreaching.)

I know you're tired of the mantra, but here it is again: the American legal system allows thugs to suppress speech through frivolous lawsuits and the threats thereof. This is especially true when there is a power disparity between the threatener and the threatened. There are at least three ways to deal with it:

1. Learn about, and support, proposed anti-SLAPP laws and other legislation calculated to protect freedom of expression.
2. Support institutions like FIRE and the Electronic Frontier Foundation that crusade to protect freedom of expression and defend victims of censorship.
3. Call out the censorious asshats. Write about instances of censorship like this one. Name and shame the lawyers as well as the clients.

In a perfect world, enough people would write about this that a Louis Vuitton bag would be seen as a signifier — not of "I'm affluent and fashionable" (or even "I'm a follower"), but "I support censorship and am indifferent to free expression." Then perhaps Louis Vuitton would pay a price.

Hat tip to Walter Olson.

Coeducational versus single-sex education is controversial. College administration is controversial, in an extremely tedious and petty way. The economics of running a college is more controversial the more you know about it.

Americans are a contentious people. We like to argue about controversial things.

Many of us see this as a good thing. We see it as part of our cultural heritage, our hard-earned exceptionalism, our competitive advantage.

Unfortunately, too many of us — even those of us in industries ostensibly devoted to open inquiry, like higher education — see it as a bug, not a feature. Too many of us react to criticism through abuse — actual or threatened — of America's deeply flawed legal system.

It is the job of everyone who loves freedom of expression to identify these people, call them out, and condemn and ridicule them.

Let's start today with Peace College of North Carolina and their lawyer, Catharine Biggs Arrowood of the firm Parker Poe.

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Does the First Amendment need revision?

It does if you're Tracey Cline, the second Durham County, North Carolina District Attorney to be removed from office in the past five years.  Today Ms. Cline failed in her attempt to persuade a court that the First Amendment gave her the freedom to make the following statements, in open court, about another judge who'd overturned convictions obtained through fraudulent evidence.

This Honorable Court's authority and power are no longer controlled by constitutional limits, morality, or conscience.

This shameful, disgraceful conduct is unimaginable, but true with this Honorable Court.

That in these cases this Honorable Court's agenda is to impede the administration of justice, attack the calendaring authority of this District Attorney, and appease friends of associates who share his common agenda of falsifying prosecutorial misconduct to make and mold a media mania of unsupported and unwarranted allegations of prosecutorial misconduct, and generally whatever actions in this Court's power whether ethical or not to clandestinely hinder the operation of the District Attorney's office and to draw a media light to the media mayhem this Court personally manufactured.

[D]on't hide your dirty hands; and to those who have seen, and know, yet turn a blind eye, acknowledge that your hands are covered with the blood of justice. And be ashamed.

Cline's attorneys pointed out, in her defense, that she had always capitalized the word "Honorable" while slandering the judge, to no avail.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

More to follow next week.