As I announced previously, today I am giving an talk on Google Hangouts on convention anti-harassment policies and how they fit into American anti-harassment law. Some related links:
As I announced previously, today I am giving an talk on Google Hangouts on convention anti-harassment policies and how they fit into American anti-harassment law. Some related links:
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.
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.
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.
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.
Via Ken on Twitter:
Genius. Sheer genius.
I love everything about this, right down to the fine print on the website: "All audio, visual, and textual contents on this site have been granted an intellectual monopoly by the powers vested in the G-force."
"One horse-laugh is worth ten thousand syllogisms. It is not only more effective; it is also vastly more intelligent." – H. L. Mencken
Conservative author and speaker Dinesh D'Souza has been indicted in federal court in New York for campaign finance violations. More specifically, the feds have charged D'Souza with what is frequently called donation laundering. They assert that he reimbursed other for their donations to his chosen United States Senate candidate, thereby exceeding the statutory limit on personal donations. They also assert that he caused a false statement to be submitted to the feds, in that as a result of the alleged donation laundering the candidate's Federal Elections Commission statement identifying donors was rendered inaccurate.
Some people are suspicious that D'Souza is being singled out for his strong criticism of the Obama Administration, including his polemical documentary "2016: Obama's America." I hold no brief for D'Souza — I find him to be a crass, Coulteresque, unconvincing bomb-thrower. But I do not find it difficult to believe that the United States Department of Justice would single out an American for prosecution based on political views that are unpopular or offensive to those in power. My view is absolutely not limited to the Department of Justice under this administration. Selection of anyone for prosecution based on their views — whether I like their views or not — is an abhorent abuse of power that could easily be turned upon me or upon people with views I like.
A federal defendant who feels targeted based on protected speech may file a motion to dismiss the case for "selective prosecution." But it's a very difficult motion to win.
Federal prosecutors have extraordinary broad discretion in deciding whom to prosecute. However, they can't target people for prosecution based on constitutionally prohibited factors:
As we have noted in a slightly different context, however, although prosecutorial discretion is broad, it is not “ ‘unfettered.’ Selectivity in the enforcement of criminal laws is … subject to constitutional constraints.” United States v. Batchelder, 442 U.S. 114, 125, 99 S.Ct. 2198, 2205, 60 L.Ed.2d 755 (1979) (footnote omitted). In particular, the decision to prosecute may not be “ ‘deliberately based upon an unjustifiable standard such as race, religion, or other arbitrary classification,’ ” Bordenkircher v. Hayes, supra, 434 U.S., at 364, 98 S.Ct., at 668, quoting Oyler v. Boles, 368 U.S. 448, 456, 82 S.Ct. 501, 505, 7 L.Ed.2d 446 (1962), including the exercise of protected statutory and constitutional rights, see United States v. Goodwin, supra, 457 U.S., at 372, 102 S.Ct., at 2488.
Even though prosecution based on impermissible factors like race or protected speech is prohibited, the standard for proving it is high. The Supreme Court has announced that prosecutorial decisions are cloaked with a "presumption of regularity," and that courts must "presume" they have acted rightly absent "clear" evidence of discriminatory targeting. The Supreme Court explains:
Judicial deference to the decisions of these executive officers rests in part on an assessment of the relative competence of prosecutors and courts. “Such factors as the strength of the case, the prosecution's general deterrence value, the Government's enforcement priorities, and the case's relationship to the Government's overall enforcement plan are not readily susceptible to the kind of analysis the courts are competent to undertake.” Id., at 607, 105 S.Ct., at 1530. It also stems from a concern not to unnecessarily impair the performance of a core executive constitutional function. “Examining the basis of a prosecution delays the criminal proceeding, threatens to chill law enforcement by subjecting the prosecutor's motives and decisionmaking to outside inquiry, and may undermine prosecutorial effectiveness by revealing the Government's enforcement policy.” Ibid.
Sometimes, when you devote so much concern to the state's interest in unfettered prosecution, there's not much concern left for the defendant. Judges are only human, after all.
Under this regime, to show selective prosecution, a defendant must establish by "clear" evidence that "similarly situated individuals" without the prohibited characteristic were not prosecuted, and that the motive in this case was impermissibe. In a case alleging racial selective prosecution the defendant would have to show similarly situated people of a different race weren't prosecuted. In a case like Mr. D'Souza's the defendant would have to show both that (1) similarly situated people who didn't engage in the protected speech weren't prosecuted, and (2) the decision to prosecute was based on animus towards the protected speech. This is a tremendously difficult standard to meet. How is a defendant supposed to know whether other people have committed the same crime and been passed over by the government, particularly when the government's investigations are secret and when the conduct in question is difficult to detect?
A defendant can demand discovery from the government about whether it has passed over other people who committed the crime. But the Supreme Court has set a high bar for entitlement to such discovery. To force the government to produce statistics and other information about its prosecution decisions, the defendant must produce "some" evidence in support of both prongs of the selective prosecution test — that is, some evidence that others similarly situated are not being prosecuted, and some evidence of improper motive. In U.S. v. Armstrong in 1996, the Supreme Court held that it was not enough that defense lawyers in Los Angeles showed that the defendants in federal crack cocaine cases were almost all African-American; to get discovery they also had to supply some evidence that the feds were passing over white defendants.
In short, a mere suspicious appearance — like the indictment of a vigorous critic of the administration — is not enough to show unconstitutionally selective prosecution. D'Souza's attorneys should certainly explore the issue, but it will not be an easy motion to win. The system only nominally protects rights; for the most part the system protects the system.
The controversial billionaire Charles Saatchi told journalist Taki Theodoracopulos that his ex-wife 'always found you toe-curlingly vile' in a bizarre open letter to the magazine which has now resulted in the 77-year-old offering to take on Mr Saatchi in a cage fight.
Rumors that Taki Theodoracopulos has asked Texas lawyer Carl David Cedar to be his second at the cage match duel have not yet been confirmed as of press time.
In the comments to the previous post, many people were a bit confused by why an innocent man would falsely confess to a crime. Lots of advice and commentary appeared in the reader responses: "I don't…", "I would…", "It's simple…".
In my opinion all of these responses were utterly misguided…except for one guy who got it dead on right:
Don't talk to the police without a lawyer. Ever. Then it doesn't matter if they lie to you. Cases like this are more proof that if it's just you against the police, you will lose every time. After two days of interrogation in that kind of an environment, I doubt that he was processing anything well enough to defend his own interests. Nobody would.
Even aside from the general advice that one should never talk to the cops (a video well known to most of us here, but I was still happy that Doctor X presented another link), there's a specific bit in Dick Taylor's comment that deserves to be presented in a 70 point font made out of glowing red neon letters:
I doubt that he was processing anything well enough to defend his own interests
I have never been handcuffed, taken down to the police station, or put in a room with a one way mirror.
…but I was once, years ago, ruthlessly grilled by two cops on the sidewalk in a situation where I was not free to leave. I am a very strong willed individual who knew deep in my bones that I was right, they were wrong, and that I should not say anything to them. So, of course, I didn't say anything to them, and the whole thing resolved itself.
But the point I want to make is even a very strong willed individual who is mentally prepared for a confrontation with the cops and has rehearsed what he will (or rather, won't) say still experiences a level of psychological pressure that is hard to describe. This was in a neutral settings, in an encounter that lasted less than an hour, on an average day. I can not imagine the psychological pressure one would feel after 12 hours of interrogation, in a locked room far from home, while wearing handcuffs, after a family member had died.
Barracks lawyers asserting "I don't…", "I would…", "It's simple…", etc. do not, I suggest, have a feeling for what it feels like to actually be in the kinds of situations they are talking about.
I strongly recommend reading “Only the Guilty Would Confess to Crimes” : Understanding the Mystery of False Confessions by Douglas L. Keene and Rita R. Handrich.
It's about 10,000 words, so it will take 10 to 15 minutes…but it's 10 to 15 minutes well spent.
The original headline is "Court Weighs Police Role in Coercing Confessions", but I like mine a bit better.
detectives told Mr. Thomas repeatedly that the baby’s condition was an accident and that he would not be arrested. Several times they threatened to arrest his wife if he did not confess to abusing the baby, prompting him to say he would “take the rap.” Later they told him his son, who was already brain-dead, might die if he did not help doctors by describing how he hurt the boy.
Of course, the boy was already dead, and the detectives lied to the father, basically promising him that his son would live if he agreed to the fiction that he had done it, even if he hadn't.
After two days of interrogation, the father broke down, and agreed to the police lie, to save the life of his son and the freedom of his wife.
He is now serving a life sentence.
The judges were not with out sympathy. Oh, they had sympathy aplenty:
During arguments, several judges — among them Judge Lippman, Robert S. Smith and Eugene F. Pigott — expressed sympathy for Mr. Thomas’s contention that his confession was made under unfair pressure.
But sympathy only goes so far. There's precedent to worry about, and if innocent men have to go to jail to uphold precent, well, then, government employees understand the relative importance of these two things:
“We have precedent that says the police can use deception,” Judge Victoria A. Graffeo said. “What we are trying to figure out is when you enter this area of inappropriate pressure?”
“Don’t threaten to arrest people’s wives whom you know are innocent,” Mr. Frost answered.
“That’s a narrow rule,” Judge Pigott said.
Still, the judges are positively Solomonic compared to the prosecutor.
Ms. Egan… insisted the detectives had done nothing that would cast doubt on the veracity of Mr. Thomas’s statement.
"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.
On 16 November, I told you about Gridiron Solitaire, an indie game developed by Friend-of-the-'Hat and all-around nice guy Bill Harris of Dubious Quality. At that time, Bill had submitted the game to Steam for possible greenlighting and I asked for votes in support of that effort. Alongside some Popehatters, friends of Bill from all around the 'verse joined in, and pretty soon afterward the game was approved.
Well, Gridiron Solitaire is now officially available on Steam! I'll bet it's a great way to spend a snowy evening….
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.
"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.
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
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.