Tagged: asshats

24

Ares Rights, Bless Its Heart, Continues Bumbling Attempts At Censorship

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Last summer I wrote about Ares Rights, a nominal "anti-piracy" firm that acts as a small-time legbreaker for various South American governments. When we encountered Ares they were trying to scrub discussions of Ecuador's spying practices through bogus DMCA notices. More recently Ares Rights abused the DMCA to suppress reporting on Ecuadoran corruption.

Now — because the internet is all about shoving everything up its own ass, as Jeff Winger would say — Ares Rights is sending out frivolous DMCA demands trying to silence discussion of its use of frivolous DMCA demands. Ares Rights responded to the Electronic Frontier Foundation's blog post about their abuse with, as Adam Steinbaugh reports, sending a DMCA notice demanding removal of the blog post. If that's not meta enough for you, now Ares Rights has issued a DMCA notice seeking to take down Adam Steinbaugh's blog post discussing their DMCA notice targeting the EFF's blog post discussing their prior DMCA notices.

It's not clear what Ares Rights hopes to accomplish. Their DMCAs will fail. This won't slow coverage. Trying to brush off the EFF or Steinbaugh with a DMCA notice is like trying to get a dog to stop humping your leg by petting it and feeding it bacon. Maybe they bill by the hour, even for patently ridiculous tasks? Maybe they are trying to convince their Ecuadorian masters that they are doing something, anything? Maybe they are just really very bad at their jobs? Stay tuned to find out.

Meanwhile, maybe you could go to their Facebook page and tell them what you think.

Edited to add: Ares Rights is deleting comments on their Facebook page, but they can't delete reviews here.

Adam Steinbaugh has responded to the DMCA notice.

76

Think That Employee Harassment Complaint Is Too Stupid To Take Seriously? Just Write Your Check To Me Now.

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Last week some writers at Jezebel made a public complaint about its parent, Gawker Media:

For months, an individual or individuals has been using anonymous, untraceable burner accounts to post gifs of violent pornography in the discussion section of stories on Jezebel. The images arrive in a barrage, and the only way to get rid of them from the website is if a staffer individually dismisses the comments and manually bans the commenter. But because IP addresses aren't recorded on burner accounts, literally nothing is stopping this individual or individuals from immediately signing up for another, and posting another wave of violent images (and then bragging about it on 4chan in conversations staffers here have followed, which we're not linking to here because fuck that garbage). This weekend, the user or users have escalated to gory images of bloody injuries emblazoned with the Jezebel logo. It's like playing whack-a-mole with a sociopathic Hydra.

The writers further complained that they had repeatedly informed Gawker Media of the problem, but higher-ups failed or refused to do anything about it. A couple of days later, the writers announced that Gawker Media had responded and was taking steps to deal with trolls barraging them with rape porn.

This complaint was ridiculed in some circles. No, I won't link them. The ridicule seemed to be based on the propositions that (1) it's silly to think that Gawker should be responsible for what some third-party troll is doing to its employees, and (2) it's silly to be upset by that sort of thing.

This is a good example of the phenomenon I like to call "bless your heart for thinking that, but it's not the law, dipshit."

American employers are, in fact, responsible for taking reasonable steps to protect their employees from racial or sexual harassment by third parties. This is the example I use when I train companies on sexual harassment prevention: if the UPS guy is constantly and creepily hitting on your receptionist, you need to do something about it. You may think that it is outrageous that this is the rule. Cool story, bro. That's what the law is, and if you employ people or advise anyone who employs people, you're a fool to ignore it. Here's how the United States Court of Appeals for the Fourth Circuit — hardly a bastion of liberalism — recently summarized it:

Similar to the reasoning we set forth for employer liability for co-worker harassment, “an employer cannot avoid Title VII liability for [third-party] harassment by adopting a ‘see no evil, hear no evil’ strategy.' “ Ocheltree v. Scollon Prods., Inc., 335 F.3d 325, 334 (4th Cir.2003) (en banc). Therefore, an employer is liable under Title VII for third parties creating a hostile work environment if the employer knew or should have known of the harassment and failed “to take prompt remedial action reasonably calculated to end the harassment.” Amirmokri v. Baltimore Gas & Elec. Co., 60 F.3d 1126, 1131 (4th Cir.1995) (quoting Katz v. Dole, 709 F.2d 251, 256 (4th Cir.1983)) (internal quotation marks omitted) (applying this standard to co-worker harassment).

In that case, the Circuit overturned a trial court judgment for the employer, finding that there was sufficient evidence to go to trial on the employee's complaints that an asshole customer had created a hostile environment and the employer didn't do anything about it:

Applying this standard here, we conclude that a reasonable jury could find that Dal–Tile knew or should have known of the harassment. Here, Freeman presented evidence that Wrenn, her supervisor, knew of all three of the most major incidents: the two “black b* * * * ” comments, and the “f* * *ed up as a n* * * *r's checkbook” comment. Wrenn was present for the first “black b* * * * ” comment, which Freeman complained about to Wrenn afterward. Freeman also complained to Wrenn specifically about the other two comments from Koester almost immediately after they occurred.5 When Freeman complained to Wrenn about the “f* * *ed up as a n* * * *r's checkbook” comment, Wrenn “scoffed and shook her head and put her head back down and continued on with trying to pick the nail polish off of her nails.” J.A. 102. When Freeman complained about the second “black b* * * * ” comment, Wrenn simply rolled her eyes and went on talking to a co-worker. J.A. 112. In addition to these most severe incidents, Wrenn was also present the time Koester passed gas on Freeman's phone and Freeman began crying and had to leave the room.

That supervisor, Wrenn, reacted rather like the critics of the Jezebel writers: "why, exactly, is this an issue we should care about?" That attitude was rather expensive for the defendant company in this case.

Or maybe you think that trolls constantly posting rape porn isn't severe or pervasive enough to create a hostile working environment. No, thanks, I don't think I'll borrow your laptop. Everyone is entitled to their own opinion, but everyone isn't entitled to the law being what they think it is. Minimal exposure to pornography isn't severe or pervasive. If someone puts up a centerfold and you complain and it's gone the next day, courts wont' find that to be sufficient to create liability. But being constantly exposed to pornography calculated to upset you — meant to troll you? That's probably over the line. "Although most cases involving pornography in the workplace include other elements such as threatening or offensive remarks, see, e.g., Waltman, 875 F.2d at 471, there is no necessary reason why the presence of pornography alone could not create a hostile work environment so long as the pornography was sufficiently severe or pervasive." Adams v. City of Gretna, 2009 WL 1668374 (E.D. La. June 12, 2009).

Let's put it this way: Gawker Media made the wrong choice when they ignored complaints, and the right choice when they started taking steps reasonably calculated to address the complaints. I'm not certain that the writers would win a lawsuit if Gawker had continued to put its head in the sand, but if I had to choose the stronger case, I'd choose the writers.

Preventing harassment is, for whatever reason, a subject that upsets people. Go ahead, be upset. Say it's ridiculous! But part of my job is training companies to minimize liability risks, and I'm here to tell you: if you don't take it very seriously as an employer, you might as well start writing checks to litigators right now.

24

Monday Schadenfreupdates (Now Updated!)

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Why do bad things happen to good people? I can't tell you that. But I can tell you that bad things happen eventually to bad people.

For instance:

1. Perhaps you remember David Bell, chief fraudster of the U.S. Telecom fraud ring discussed in my "Anatomy of a Scam" series. He's had criminal charges pending in San Bernardino County since 2011. Recently he entered a no contest plea to two counts of grand theft auto, plus enhancements for priors, thus not admitting guilt but admitting that the government could prove those particular counts against him. He'll be sentenced in September. And what about the feds? Be patient . . . .

2. You probably also remember Dennis Toeppen, the oddly truculent head of bus company Suburban Express, who liked to threaten online critics with lawsuits and heap them with abuse. Ars Technical reports that Toeppen was arrested on two misdemeanor counts of electronic harassment. I'd reserve judgment until seeing the basis for the case; many cyberbullying and cyberstalking statutes are ridiculously overbroad and a violation of the sacred First Amendment right to be a turd. Ars Technica points out a recent Yelp thread in which Toeppen, true to form, lashes out at bad reviewers; it's bad business, but almost certainly protected speech.

3. The Prenda Law gang, about whom I've written a word or two, suffered another setback last week in the United States Court of Appeals for the D.C. Circuit. On May 27th, the D.C. Circuit overturned a trial court order permitting AF Holdings — a Prenda shell — to take early discovery from Cox Communications of the accounts associated with various IP addresses. The decision did not go well for Team Prenda. The D.C. Circuit recognized the various tactics criticized by other courts across the country, savaged AF Holdings' theories of why they would have personal jurisdiction over nationwide downloaders in D.C., and undermined Prenda's arguments about why they could combine multiple defendants in the same case. The court sent the case back to the trial court to see whether sanctions were appropriate for AF Holdings' notorious use of an allegedly forged signature on a copyright assignment. Protip — if a United States Court of Appeals refers to you as "law firm," with scare quotes thus, you're gonna have a bad time.

The wheel turns slowly, but it turns.

Update: Now With More Schadenfreude!

4. In Oregon Troy Sexton — who responded to the Popehat Signal and won an anti-SLAPP motion on behalf of an anti-telemarketing blogger sued for defamationThatLeftAMark has been awarded around $41,000 in fees and costs against the plaintiff, attorney F. Atone Accuardi. Keep those fee awards against censors rolling in, people.

Science Fiction Community Generates This Weekend's Buffoonish Defamation Threat

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

He started out angry over ongoing upheaval in the science fiction and fantasy literature community. That upheaval is mirrored in the gaming community and skeptic community and other communities with devoted and vocal fanbases. It's a conflict between two groups: a group that thinks the communities have a problem with racism, sexism, and harassment and should take steps to address it, and a group that thinks that the first group is engaged in free-speech-suppressing political correctness and should be resisted. A full description of the dispute would be too lengthy for this post.1

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Fodera's claim of defamation therefore appears specious.

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

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

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

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

News-Reworder SlashGear Turns Expert Into Criminal Defendant

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Dr. Nicholas Weaver is an expert on network security issues. The media frequently seeks him out for input on stories involving the intersection of criminal justice and computer security, like Silk Road and leak investigations. Fair disclosure: he's also an online friend and an expert on one of my cases.

SlashGear is an also-ran tech site that rewrites stories badly.

Case in point: SlashGear took this story from Krebs On Security about criminal charges against Bitcoin traders in Florida. Dr. Weaver was quoted as an expert in that story:

Nicholas Weaver, a researcher at the International Computer Science Institute (ICSI) and at the University of California, Berkeley and keen follower of Bitcoin-related news, said he is unaware of another case in which state law has been used against a Bitcoin vendor. According to Weaver, the Florida case is significant because localbitcoins.com is among the last remaining places that Americans can use to purchase Bitcoins anonymously.

“The biggest problem that Bitcoin faces is actually self-imposed, because it’s always hard to buy Bitcoins,” Weaver said. “The reason is that Bitcoin transactions are irreversible, and therefore any purchase of Bitcoins must be made with something irreversible — namely cash. And that means you either have to wait several days for the wire transfer or bank transfer to go through, or if you want to buy them quickly you pay with cash through a site like localbitcoins.com.”

But when Bittany Hillen penned an awkwardly-worded and uninformative summary of the story for SlashGear, she turned Dr. Weaver from a quoted expert to a criminal defendant:

Yesterday, Florida law enforcement announced the arrests and criminal charges against three individuals under anti-money laundering laws: Michell Abner Espinoza, Pascal Reid, and Nicholas Weaver.

Dr. Weaver captured a screenshot in case SlashGear tries to memory-hole this. He should feel happy he didn't give a quote about the Woody Allen case, I guess.

Dr. Weaver isn't the suing type. But, hypothetically, could he sue for defamation? Sure.

In California the elements of defamation — that is, the things that a defamation plaintiff must prove — are these:

publication of a statement of fact
that is false,
unprivileged,
has a natural tendency to injure or which causes "special damage," and
the defendant's fault in publishing the statement amounted to at least negligence.

Here, SlashGear and Hillen published a false statement of fact about Dr. Weaver — that he had been charged with a crime. The publication was unprivileged, meaning that it was not immunized from liability by statute (for instance, things you say as a witness in court, or in pleadings filed in court, are generally privileged from liability). Accusing some of being charged with a crime is the sort of thing that has a natural tendency to injure, which is why it is often categorizes as "libel per se" — which merely means that the plaintiff doesn't have to prove that he or she suffered damage to reputation, and gets at least nominal damages without such proof.2 Dr. Weaver probably couldn't prove actual or special damages to his reputation — it's doubtful that anyone gives a shit what a clumsy SlashGear rewrite says. But he could get at least nominal damages because of the nature of the accusation.

That leaves us with the question of fault. As I explained in the context of the Crystal Cox case, at least if the issue being discussed is a public one, a defamation claim always requires proof of some level of fault on the part of the defendant. The level of fault depends on whether the plaintiff is a mere private figure (in which case the plaintiff may only need to prove that the defendant got the story wrong out of negligence) or a public figure (in which case the plaintiff would need to prove actual malice, meaning knowledge that the story was false or reckless disregard to its truth or falsity.) There are complexities and gradations; people can be public figures for limited purposes.

Here, the transformation of Dr. Weaver from respected expert to criminal defendant is a result of an incompetent rewrite of a news story. That's at least negligence. If Dr. Weaver is treated as a private figure he would prevail. But since he's frequently quoted in the news on stories like this, he may well be treated as a limited purpose public figure in the context of coverage of network security issues in the news. So the question is probably whether an incompetent rewrite of a story rises to the level of reckless disregard of the truth as required by the actual malice standard. The answer is almost certainly not. "Reckless disregard" requires more than incompetence; it requires conscious disregard of doubt. Here there's no indication that anyone consciously regarded or disregarded anything.

So: Dr. Weaver probably can't prove the requisite fault against SlashGear and Hillen, even if he wanted to. They live to promote shitty rewrites another day. Fortunately for Dr. Weaver it's difficult to imagine anyone taking SlashGear seriously enough for their incompetence to hurt his reputation.

Remember: just because something is written in a "story" by a "journalist" on a well-trafficked website, that doesn't mean it's anything other than incompetent drivel.

Edited to add SlashGear corrected the story to remove the reference to Dr. Weaver as a defendant, but as of this writing has not offered any retraction or apology. Classy.

Rhode Island Cops Vigilant In Face of Scourge of People Making Fun of State Representative Scott Guthrie

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Murder was the case.

No, wait. Mockery was the case.

Somebody was mocking Rhode Island state Representative Scott J. Guthrie. And not even because of his 'stache! No, someone put up a clearly satirical Facebook page about Guthrie, mocking him and attacking his political positions.

Guthrie, as an adult, a responsible citizen, and a government official who cares about the public fisc, laughed it off and talked to reporters about how it demonstrated that his ideas are right.

No, wait. That's the bizarro-America response.

This is the real America — the America of butthurt, the America of snivelers, the America of "I'm entitled not to be offended," the mewling o-help-me-nanny-state America.

So Scott Guthrie went to the cops, and the cops conducted a full investigation — including subpoenas — before realizing that putting up a satirical Facebook page is not a crime, even in a world where we have broad and vague and unprincipled "cyber-harassment" laws.

How extensive was the investigation? Consider the police report yourself.

It turned out that the satirical page was created by Republican Sen. Nicholas Kettle. Guthrie is a Democrat. Kettle, naturally, faced no official consequences; the young communications director who helped him make the page was fired. The communications director used legislative resources, a computer, to create the page, you see. There was no consequence for Guthrie using substantial law enforcement resources to investigate being made fun of.

Kudos are due to law enforcement for resisting the demands of a state legislator:

But on advice of a lawyer in Attorney General Peter Kilmartin's office, they concluded the creation of this fake Facebook page did not constitute "cyber-harassment."

After reviewing the case, "I was informed that a majority of the posts were constitutionally protected activity," and the others "would not have caused substantial emotional distress which is another required element of the crime," the lead detective, Kevin Harris, wrote in a report obtained by The Journal on Tuesday.

After speaking to Assistant Attorney General Ronald Gendron, "it has been determined that there is insufficient evidence to go forward with charges at this time," Harris wrote.

It would have been nice if they had come to that obvious assessment earlier, after a smaller expenditure of taxpayer funds. In their defense, they do far better than most.

But Guthrie may not be done:

But the case may not be over. Kilmartin spokeswoman Amy Kempe said Gendron provided an "initial assessment," but the attorney general intends to review the case. Guthrie said he may now take his complaint to federal authorities.

Scott Guthrie, you petulant, pusillanimous prat, you're a disgrace. You're a disgrace to adulthood. You're a disgrace to American citizenship. You're a disgrace to public service. Stop spending the taxpayers' money as an unguent for your butthurt and react like a grown up with some grasp of American values. Retaliate with a page about Kettle. It should be easy. Dude looks like a spotty douchebro.

(Hat tip to Nicholas Cote.)

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

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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.

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

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

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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.

Frothing Nutjob Gordon Klingenschmitt, His Censorship Is My Censorship Too

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Gordon Klingenschmitt is running for the Colorado General Assembly. His political base is made up of people who think that Obamacare causes cancer; that Justice Anthony Kennedy called Jesus evil; that Obama is ruled by 50 demons3; that demonic spirits inhabit high school track meet officials, transgendered professors, and Madonna; and that gays should be the subject of discrimination. He also thinks that he can exorcise the gayness out of people, though that may be a typo.4

All of this makes Klingenschmitt the darling of some, and the frequent target of coverage by Right Wing Watch, which sort of the Marlin Perkins to Klingenshmitt's irritable wildebeest, if wildebeests were rabidly homophobic and had Charlie Manson eyes. Klingenschmitt doesn't like Right Wing Watch covering him or posting excerpts of his — for want of a better word — talks on their YouTube channel. So he's been making repeated bogus copyright claims to YouTube, claiming that Right Wing Watch is violating his copyright by posting parts of his videos. He's done so even though it's classic fair use to take an excerpt of a political candidate's past comments as part of covering, criticizing, and commenting upon him. YouTube has rejected Klingenschmitt's takedown demands, but he keeps repeating them, resulting in Right Wing Watch's YouTube channel being repeatedly terminated. Klingenschmitt threatens to continue. His quest to suppress criticism in the form of repetition of his own words is aided substantially by YouTube's dumb-as-a-bag-of-hair automated system, which encourages bad-faith complaints by rewarding them with repeated takedowns.

Whether it's Twitter, or YouTube, or Facebook, media sites are faced with a vicious cycle: the more they automate their takedown-demand process and remove intelligent supervision from it, the more that censors and the pathologically thin-skinned will flood them with bogus takedown demands. If you don't like it, you could tweet @YouTube or sign Right Wing Watch's petition. Just do me a favor and be ready to do the same thing next time it happens to someone with whom you disagree.

As to Klingenschmitt: why should Colorado voters accept someone who bears false witness in takedown demands to shut up his critics? Does he stand by the talk about demons and the benefits of discrimination against gays, or not? Also: if demons control Obama, are demons responsible for the disastrous Obamacare rollout? Wouldn't demons want Obamacare to work so it could cause more cancer? Are angels fighting demons? Do angels make web sites not work in order to thwart demons causing cancer through their chosen agent of Obamacare? Are angels responsible when Popehat goes down?

Alabama Blogger Roger Shuler Arrested For Violation of Unconstitutional Injunction

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There are a few things you should know about Roger Shuler, who blogs at "Legal Schnauzer."

First, Shuler is creepy and crazy. (I formed that opinion by reading his blog.)

Second, Shuler is a vexatious litigant, a serial pro se abuser of the court system.5 (I formed that opinion by researching records of his litigation history.)

Third, Shuler is currently in jail, arrested for contempt because he violated an unconstitutional preliminary injunction — a classic prior restraint — prohibiting him from defaming the son of a former Alabama governor.

Some people excuse or applaud the third thing because of the first and second things. They shouldn't. The First Amendment protects everyone — even creepy, crazy vexatious litigants. You should demand that the First Amendment protect people like that, because if it doesn't, it won't protect you when you need it.

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Biology-Online.org, "Urban Whores," And The Many Axes Of Douchebaggery

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Biologist Danielle N. Lee blogs as "The Urban Scientist." She admirably strives to widen the audience for science and explain how the fundamental principles of science can be observed in any environment. A few days ago she received an email solicitation from Biology-Online.org, an ass-ugly advertisement-encrusted content aggregator site. "Ofek," a "Blog Editor" at Biology-Online, wrote Ms. Lee and asked her to contribute blog posts as a "guest blogger." Ms. Lee asked some polite questions — how often, and do you pay your content providers — and upon receiving the answers, very politely declined.

So Biology-Online "Blog Editor Ofek" called her a whore.

Because we don't pay for blog entries?
Are you an urban scientist or an urban whore?

Urban WhoreHOW DARE YOU NOT PROVIDE US WITH CONTENT FOR FREE.

Ms. Lee told her story more kindly than "Ofek" deserved, and used it as an opportunity to advocate for widening access to science and the audience for science. Ms. Lee rocks.

Here the story might have faded quickly into obscurity — it hit on a weekend during a news-heavy month. But remember the first rule of public relations: it may quite difficult to make things better, but it's always very easy to make things much worse by running your mouth before you have time to get a grip. Hence the venerable Scientific American — which for reasons that passeth all understanding partners with Biology-Online.org — elected to delete Ms. Lee's blog entry about the issue from their site. Called on that, Scientific American Editor-In-Chief Mariette DiChristina reacted with a stupid lie:

OhBullshitScientificAmerican

As other Scientific American bloggers pointed out, that's just bullshit. Scientific American allows such blogs all the time. Scientific American's online leadership — faced with a story about a scientist being treated badly by one of its "partners" — deleted the story and lied about it, inexorably prolonging the story, substantially widening its audience, and associating Scientific American with its villain. The Aristocrats!

Many bloggers have written about this as a clear example of how sexism is pervasive in the sciences. After all, how else can you explain the interpersonal dysfunction of someone demanding free content from a female scientist and then calling her a whore when she refuses?

But I think sexism is, at least, an incomplete explanation.

I have no doubt that the scientific community is awash in ignorant and reflexive sexism. I've heard too many stories from loved ones, classmates, and clients6 in the sciences to think otherwise. But human douchebaggery spins upon multiple axes. It may be that the most powerful axis in play here is not sexism, but marketing.

Perhaps "Ofek" is7 some kind of scientist. If he is, and his identity is revealed, he is likely to experience significant social consequences — that is, he is likely to be treated as someone who calls women "whore" when they decline to provide him with free content. But Ofek is currently in the business of spamming bloggers to ask them to contribute free content to a sordid little advertising-heavy aggregator site in order to increase traffic and thereby increase advertising revenue to Ofek and Ofek's team. In other words, Ofek has ceased to be a scientist and begun a career as a marketeer.

And marketeers are entitled douchebags. Within the context of online marketing, Ofek's behavior is perfectly typical. Ofek's belief — that he is entitled to profit off of Ms. Lee's work, and that she's worthy of abuse if she objects — is the apotheosis of marketeer culture.

You can hear echoes of Ofek in the marketeer who called the Bloggess a "fucking bitch" when she snarked about receiving Kardashian spam. You can hear it in the offense taken by the spammer who showed up in our comments, outraged that we called out his spam. You can hear it in the attitude of comment spammers who suggest that if bloggers don't want comment spam they shouldn't have open comments. You see it in the buffoonish look-how-successful-I-am rants of marketeers who defend their vocation. You hear it in the rancor of marketeers who believe they own hashtags on Twitter and that anyone who uses them for criticism is a spammer. You can hear it in the angry entitlement of the marketeer who threatens me with a lawsuit when I call out his deceitful methodology.

It is right and fit that people who learn about Ms. Lee's experience should use it as a teaching opportunity about sexism in science. But that's an incomplete lesson. It's also an opportunity to remind yourself and your readers about the culture of online marketeering. This is what online marketeers think of you. When you treat with them you only help spread this culture. Fight sexism! But don't forget to shun marketeers and their methods.

Note: "Ofek" clearly intended "whore" to be a gendered slur. His communication should be treated accordingly. But when you think about the use of the word "whore", it's a good thing to remember that sex workers are actual human beings, not abstractions. They are more than the collection of social attitudes about them. Read the words of a dozen sex workers and you'll get a dozen different attitudes about what they did and how society treats them. I recommend Maggie McNeill, who writes forcefully from one perspective. Since I started reading her I stopped using "whore" as a political epithet.

Brave Educators Confront Guns, Vampires

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DATELINE Harmony, Florida

In days gone by, the worst that teachers and school administrators had to worry about was chewing gum, running in the halls, and the occasional skirt that brushed the knee.

Now, however, educators face an arsenal arrayed against them and against the safety and discipline of our nation's schools. Students brandish pistols, rifles, grenades, swords (both steel and plasma), gigantic fighting robots, and occasionally dinosaurs.

Now, to be perfectly accurate, some of these weapons are imaginary. For instance, the Harmony Community School recently suspended eight-year-old Jordan Bennett for making an imaginary gun with his finger while playing with friends at recess. But educators maintain that good order requires zero tolerance of any reference to violence, real or imagined.

Osceolla County School District spokesperson Dol Umbridge bristled at the suggestion that suspending an eight-year-old for imaginative play was excessive. "A gun is a gun, whether you choose to brand it as 'real' or not," said Umbridge. "Imagining violence leads to violence. Past permissiveness about 'games' of 'cops and robbers' are exactly why crime is at an all-time high. And children who imagine guns will go on to imagine other things, which is highly detrimental to our curriculum. Moreover, thanks to budget cuts, many of our professional educators have been deprived of the in-service training days that would permit them to distinguish between 'real' and 'imaginary' guns."

Umbridge added that the district's policy against imaginary items is based on a successful initiative launched by the federal government in 2001.

"The point is," Umbridge explained, "that there have been school shootings in this country. Those school shootings demonstrate that parents should accept the risk assessments of teachers and school administrators, and give them the benefit of the doubt that they only want what is best for our children." Umbridge's defensive comment may have been a reference to a somewhat controversial incident at an Osceolla County school last October when a Vice Principal staked a third-grader pretending to be a vampire at an Autumn Festival. Vampires are on Osceolla County's list of prohibited subjects of imaginative play because of their association with violence, sexuality, and dysfunctional relationships.

Though the no-imaginative-play policy has met some opposition, it also enjoys support. "I can't teach my kid the difference between fantasy and reality. That's what schools are for," said one Orlando father who had recently blamed the popular computer game "Minecraft" for his nine-year-old son bringing a steak knife, bullets, and an inoperative but real handgun to elementary school. "I look to the government to flush this sort of nonsense out of his head. What am I supposed to do about it?"

A Perfect University Response To Offensive Student Speech

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Malachi Randolph, the President of the Student Government Association at Ball State, emitted an obnoxious series of tweets about "Chinese people."

Randolph found himself at the center of a swift shitstorm and resigned his position. He also apologized, saying his tweets about "Stereotypical Chinese" were out of frustration towards one person and not general prejudice. Okay.

What's somewhat remarkable is the response of the Ball Sate administration:

The university will not be taking any disciplinary action regarding Randolph.

“His remarks are not a violation of any university policy or law,” said Tony Proudfoot, a university spokesperson. “He is likely to find, however, that such remarks do have unintended social consequences beyond formal actions from the university.”

Exactly. Randolf's tweets were offensive and obnoxious. It is right and fit that they have social consequences. Those social consequences represent the free speech and free association of his peers. But they were not legally actionable. They were not true threats. They were not sufficiently pervasive to create a hostile environment for discrimination law purposes. They were protected by the First Amendment. It's pitch-perfect for the administration to note that such dipshittery is not punished by the university, but addressed by the marketplace of ideas.

In a country where colleges and universities ban protest signs and threaten discipline over Firefly quotes and enact vague and unprincipled "cyberbullying" codes, it's refreshing to see a university get it right.