When I heard someone was suggesting that the TSA — a favorite subject here at Popehat – was hip-deep in junk science, I was not exactly surprised. After all, the TSA has a history of flirtation with junk science, which perhaps should not surprise us, given that the agency may or may not be recruiting its technological experts via pizza box advertisements.

The junk science in question relates to the TSA's much-discussed full-body-scanners, which are supposed to help detect hidden weapons, with the side benefit of providing a relatively safe form of release for incipient sex offenders and short bursts of self-esteem to the pathologically socially handicapped. Blogger Jonathan Corbett, who is engaged in litigation with the TSA, claims that the expensive and intrusive scanners can be defeated by the complicated method of attaching metal objects to your side rather than your back or front. The TSA says that it can't really discuss it, but don't worry and trust them.

This post is not about whether Corbett is right about the scanners. My point is about the TSA's reaction. Today, Corbett reported that in the course of being interviewed by reporters about his claims, he learned that a TSA spokesperson “strongly cautioned” a reporter not to cover the story. He didn't identify the reporter. In the comments to his post, someone claiming to be a reporter from Smarter Travel asserted that they, too, were "strongly cautioned not to cover the story." The post asserted the TSA spokesperson in question was one Sari Koshetz.

Now, I don't find it even a little hard to believe that someone from the TSA would threaten the media, either subtly or unsubtly. This is, after all, the agency that launches criminal investigations of critics, calls reciting the Fourth Amendment "disorderly conduct," and wants to criminalize use of its logo.

But I recognized that this was merely a claim on a blog, a blog of someone in litigation with the TSA, with anonymous or semi-anonymous claims attributed to other folks. So, even though I am reliably informed that I am not a journalist, I decided it behooved me to do something journalisty. I asked myself the question emblazoned upon the entrance to the Columbia School of Journalism, the question drilled daily into the minds of journalists from the rawest local-paper-recruit to the loftiest anchor: how can I make this story more about ME?

So. I Googled Sari Koshetz, the name dropped in the blog post, and determined that she is indeed a TSA spokesperson. I guessed at her government email, Googled it to confirm it, and then drafted an email to her to seek confirmation and comment on the story.

Here's what I sent her. As you can see, my aim was to determine whether she really did "strongly caution" people against writing the story, and to determine if that was meant to be a threat, and if so what the legal basis for it was.

Dear Ms. Koshetz:

I write for a modestly-trafficked blog that frequently discusses TSA issues.

I write to request a comment on a report regarding your conduct. Specifically, two reporters have now asserted that you "strongly cautioned" them against reporting on the allegations of litigant and blogger Jonathan Corbett regarding TSA scanners.

Specifically:

1. Did you (or other TSA spokespersons) in fact "caution" journalists against reporting on the story?

2. Was your caution meant to convey that journalists who report on the issue could face some sort of governmental action?

3. What was the legal or factual basis of your caution?

4. Is there any other comment you would like to make?

Thank you,

etc.

I got a rather prompt response, if a brief one:

Any guidance provided is to caution reporters not to generalize that our technology doesn't work or print something without all the facts, based on an inconclusive YouTube video.

I must confess, this shocked me. I expected the TSA might ignore me. I expected the TSA might say "no, you idiot, we didn't strongly caution anyone against reporting a story, and we didn't imply a threat to anyone."

I did not expect a weak semi/non-denial that seems to corroborate that reporters were, in fact, "cautioned." In fact, an uncharitable reader might note that Ms. Koshetz didn't specifically deny making implicit threats, didn't specifically deny strongly cautioning journalists against reporting a story, and in fact only made an ambiguous statement that could be read several different ways, some of them ominous.

You know, if I were the spokesperson for a controversial and unpopular government agency frequently accused of infringing upon the civil rights of Americans, I think that I would go out of my way, when asked, to emphasize that I hadn't meant any threats against journalists and that I didn't intend anything I said to be threatening.

Unless, of course, I meant to be threatening.

As I've said recently, ambiguity in threats is the hallmark of bullshit thuggery. Until I see a clarification from the TSA, that's how I interpret this incident: as a deliberate attempt by the TSA to chill journalists from writing about whether its intrusive full-body scanners are worthless.

So. Allow me to offer my response to the TSA and its spokespersons: snort my taint, thugs.

There. Now I'll probably get on the no-fly list. Though more typical TSA behavior would be to grope my junk and then threaten to sue me if I complain.

Hat Tip: Amy Alkon. Subsequently spotted at BoingBoing.

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.

Continue Reading »

You remember Marc Stephens. I first wrote about his threats to critics of the Burzynski Clinic here. He wrote a very odd and threatening email, to which I responded here. I detailed a lengthy and tiresome correspondence with him here. Hitler reacted to is disaffiliation with the Burzynski Clinic here. And so on.

Yesterday, out of the blue, Marc sent me another email:

I see you are still obsessed…5 articles per month about me? Anyway, its been brought to my attention that you have multiple articles published on your website/blog stating false accusations about me. I am requesting that you immediately retract your false statements, or completely shutdown those articles.

In each article, mentioned below, you are stating that I am a liar, fraud, a twit, crazy, a con artist, impersonating/posing as an attorney, a thug, a criminal, threatening teens, bumptious & fake, and freakishly ignorant about fundamental issues of American Law. I also expect you to post a public apology.

The articles in question are as follow:

“Junk Science and Marketeers and Legal Threats, Oh My!”
“Tell Me About The Rabbit, Marc Stephens”
“Reason’s Superlative Prison Issue and a Note about Anonymity”
“Pro Bono Victory in a Junk-Science SLAPP Suit against a Science Blogger”
“My Marc Stephens Update, Or, Mr. Snarky Numbered Lists Visits Crazytown”
“Marc Stephens’ Downfall”
Vote for Popehat’s “Censorious Asshat of the Year”
“Andrew Wakefield Sues BMJ and Brian Deer: Time To Test Out the New Texas Anti-SLAPP Statute”
“Chris McGrath v. Vaughan Jones: An Unpleasant Peek into U.K. Libel Law”,
“Rhys Morgan's Experience Illustrates Importance of Protecting Student Speech”

Regards,
Marc

Note, in reading Marc's list, that he thinks that posts that merely mention him in passing are "about" him. Second, note the "it has been brought to my attention" language. This language is characteristic of people who either (1) like to use lawyer-letter-sounding language that has no actual meaning, and/or (2) people who like to imply that they have minions, or allies, or staff, or something. Marc's been reading for a long time, so clearly he brought it to his own attention. Also, note that Marc does not specify how any statement I made was false, and does not understand the legally significant difference between statements of opinion and provably true or false statements of fact.

I responded:

Dear Mr. Stephens:

I note that you still have not answered the question I have asked again and again: are you, in fact, an attorney? Was the Burzynski Clinic ever your client in your capacity as an attorney?

You have identified a series of characterizations. Many of them (twit, crazy, thug, bumptious, freakishly ignorant about fundamental issues of American law) are statements of pure opinion, and thus absolutely privileged under the First Amendment. Others might — might — be taken as statements of opinion based on facts (liar, fraud, con artist, impersonating/posing as an attorney, criminal, threatening teens, fake). Yet I have described, or linked to posts describing, the adequate (in fact, compelling) factual basis for each of those statements. For instance, your emails to Rhys Morgan — a teen — are inarguably threatening, even leaving aside the one where you included a Google picture. The emails where you imply that you are a lawyer are many and clear, and any reasonable person reading them would agree they suggest you are in fact an attorney. (If you would like to answer my question, and demonstrate that you ARE an attorney, I will be pleased to make that correction throughout).

If you would like to provide me with specific facts establishing that specific factual statements I have made were incorrect, I would be happy to review them carefully, and will make any appropriate corrections. But I will not be changing my commentary about you based upon vague and unsupported claims that complain about my protected opinions.

Please feel free to supplement your request.

Thank you,

Ken

This did not satisfy Marc.

Kenneth,

I am fully aware of your many insulting statements of opinion. It is your way of retaliating, and a clear attempt to damage my reputation, which you’ve already admitted. If you are so sure of your so-called “compelling facts”, then why are you asking me if I’m an attorney or not? Do you doubt your so-called facts..? I, and any reasonable person, would say that is kind of reckless. It is very clear your statements are based on fabrication, not facts. Also, assumptions are not facts. Because of your hatred and ill will towards me, which you have admitted, within two months you have written ten articles about me which contain multiple false statements.

Please keep in mind that you are a Blogger, not a journalist. In addition, you do not represent any party of the matter. So I have no obligation to communicate, or disclose my contractual relationships with an anonymous “Blogger” named Popehat.. and the photo image of your account profile is that of a 5 year old kid.

Please provide me with your compelling facts which prove that I am a liar, fraud, a twit, crazy, a con artist, impersonating/posing as an attorney, a thug, a criminal, threatening teens, bumptious & fake, and freakishly ignorant about fundamental issues of American Law. Again, I request for you to remove the articles, or retract your false statements.
Thanks,
Marc

Note that Marc is still refusing to answer the simple question of whether he is an attorney or not. That question is central to all of my posts about him, and I asked repeatedly during my correspondence with him, and he would never give a straight answer. Why not, do you suppose?

Here's my reply:

Marc:

That's not the way it works. You claim my posts have factual statements that are not correct. If you cite specific factual statements you believe to be untrue, and provide specific facts supporting your claim, I will review them carefully and, if warranted, make a correction. But I will not make changes based on insinuations or bluster.

Your continued evasive behavior speaks for itself.

This just made him angrier. But for the first time, he seemed to imply — without saying — that he's not a lawyer, suggesting that he didn't NEED to be to do the things he was doing:

Kenneth,

I clearly specified each false statement you have made in your multiple articles. All of the statements about me in your articles consist of false and libelous statements. It is completely irrelevant whether or not someone is a licensed attorney/lawyer because anyone can forward a cease and desist letter on behalf of a client. Based on this fact, it would not make someone a liar, a fraud, a twit, crazy, a con artist, impersonating a lawyer, posing as an attorney, a thug, a criminal, threatening teens, bumptious & fake, and freakishly ignorant about fundamental issues of American Law.

Your theories and personal interpretations are not facts. Your false statements in each article are written as assertions of facts, not opinions. Please retract your false and defamatory statements to project your “Opinion”. You of all people should know that defamatory statements, a tort, are not protected by the First Amendment.

Thanks,
Marc

Note the continued level of evasiveness, coyness, and refusal to offer specific facts rebutting facts that I have offered. This is my final response to him to date:

Marc:

With each communication, you merely supply more evidence in support of everything I have been saying about you.

First of all, by just picking out a few words and phrases, you are not citing facts establishing why specific factual assertions are incorrect. Just as an example: on what factual basis do you deny that you threatened a teen? Are you saying that you did not send the widely publicized emails to Rhys Morgan? Or are you claiming those emails are not threats? Similarly, with respect to posing as an attorney: are you claiming that you ARE in fact an attorney, or that you did not pretend to be one? This most recent email suggests — rather coyly — the latter interpretation, but since you've refused to address the issue for so long, it's not particularly clear.

If you provided specific facts explaining why you think that specific factual statements I made were wrong, I could engage them. For instance, let's take this latest email. You seem to imply — without coming out and saying — that you are not an attorney, but never posed as one, because just sending cease and desist letters on behalf of a client does not make someone an attorney. To that I would respond that I have read many communications apparently from you that either state explicitly that you are an attorney ("I am an attorney if that helps you sleep at night" [http://whitecoatunderground.com/2011/12/01/when-did-the-burzynski-clinic-start-harassing-bloggers/]) to ones where you imply that you are an attorney ("So, when I present to the juror that my client and his cancer treatment has went up against 5 Grand Juries which involved the Food and Drug Administration (FDA), the National Cancer Institute (NCI), Aetna Life Insurance, Emprise, Inc., Texas State Medical Board, and the United States Government, and was found not guilty in all 5 cases, you will wish you never wrote your article." [ http://scienceblogs.com/insolence/2011/11/a_pr_flack_from_the_burzynski_clinic_thr.php ]) ("Once I obtain a subpoena for your personal information, I will not settle this case with you." [ http://www.quackometer.net/blog/2011/11/the-burzynski-clinic-threatens-my-family.html ]) ("I suggest you remove ALL references about my client on the internet in its entirety, and any other defamatory statement about my client immediately, or I will file suit against you" [http://rhysmorgan.co/2011/11/threats-from-the-burzynski-clinic/]). Marc, since you claim that you are not, in fact, "freakishly ignorant about fundamental issues of American Law [sic]", you know that a non-lawyer might represent himself in court, but cannot represent an entity, and generally cannot represent another person. Therefore, the only way you could be making a presentation to a juror about the Burzynski clinic, or obtaining a subpoena for the Burzynski clinic, or filing suit on behalf of the Burzynski clinic, would be if you were a lawyer. This leads to the ineluctable conclusion that (1) you are an attorney, and just won't confirm it one way or the other no matter how many times you are asked, (2) you are not an attorney, but deliberately posed as one, or (3) you are not an attorney, but are so ignorant of fundamental concepts of American law that you did not realize that you were saying things implying to any reasonable audience that you are an attorney. (Note that this last interpretation is difficult to reconcile with your statement "I am an attorney if that helps you sleep at night." Maybe you were . . . confused?)

Moreover, your selection of words to attack suggests that you do not understand the difference between constitutionally protected statements of opinion and statements of fact. As one California court summarized:

"To state a libel claim which is not defeated by the freedom of speech protections of the First Amendment, Ferlauto must allege a statement that is provably false. (Milkovich v. Lorain Journal Co., supra, 497 U.S. at p. 20, 110 S.Ct. 2695.) Statements do not imply a provably false factual assertion and thus cannot form the basis of a defamation action if they cannot “ ‘reasonably [be] interpreted as stating actual facts' about an individual.” (Ibid., citing Hustler Magazine v. Falwell (1988) 485 U.S. 46, 50, 108 S.Ct. 876, 99 L.Ed.2d 41.) Thus, “rhetorical hyperbole,” “vigorous epithet [s],” “lusty and imaginative expression[s] of [ ] contempt,” and language used “in a loose, figurative sense” have all been accorded constitutional protection. (Greenbelt Pub. Assn. v. Bresler (1970) 398 U.S. 6, 14, 90 S.Ct. 1537, 26 L.Ed.2d 6; Letter Carriers v. Austin (1974) 418 U.S. 264, 284, 286, 94 S.Ct. 2770, 41 L.Ed.2d 745.)"

Ferlauto v. Hamsher (1999) 74 Cal.App.4th 1394, 1401, 88 Cal.Rptr.2d 843, 849

Words like "twit" and "bumptious" and "thug" clearly fall within the category of statements that do not imply a provably false factual assertion, but constitute figurative language. Someone not freakishly ignorant of fundamental concepts of American law might or might not know that already. As to the rest, based in part on the citations above to your statements claiming to be a lawyer and directly implying you are a lawyer, and based on the correspondence by you to me and to others, I believe that any of my statements which imply fact are, in fact, firmly grounded in the adequate evidence of your own words. If you believe I am incorrect, I remain willing to review, carefully, any evidence or factual explanation you wish to provide that shows that any of my facts are false. If I determine that any of my facts are incorrect, I will make an appropriate correction. If, for instance, you would like to state that you are not an attorney and that your statement "I am an attorney if that helps you sleep at night" was not intended to be taken at face value and that you did not realize that you were implying that you were an attorney by saying you would file suit and argue to jurors and obtain subpoenas, then I would be happy to make that correction to all of my relevant posts, and let readers draw their own conclusions.

Finally, if you are (as your latest email suggests) contemplating a defamation action, I suggest that you research personal jurisdiction, anti-SLAPP statutes, and debtor exams.

If you do decide to provide more information, please cite where in the specific posts you find the allegedly false statements, as I believe you are misconstruing language in several cases.

Thank you,

Ken

We'll see what happens from there.

I am always willing to review evidence suggesting I have made a claim that is factually incorrect, and make a correction if warranted. However, I believe these emails to be part of a campaign of feckless intimidation.

Edit: Is that last email chopping off on the right for people? I've had one complaint.

UPDATE: He responded:

Those cases are irrelevant…you are relying on hearsay, and your actions are negligent. Enjoy your weekend.

I don't think Marc Stephens understands what "hearsay" or "negligent" means. Note that he does not say "I didn't send those emails; they are fake!" He does not say "they altered what I said!" No, he says (as I understand it) that is is "irrelevant," in discussing whether I have a factual basis to say he has been posing as an attorney, to cite emails to other people in which he has posed as an attorney. Note, also, the learned-it-from-watching-law-and-order-reruns use of "hearsay." Hearsay is an out-of-court statement offered to prove the truth of the matter asserted — in court. It has nothing to do with whether, in the course of exercising my constitutional right to free expression, I have sufficient facts to support a belief that a proposition is true. Only someone freakishly ignorant of fundamental principles of American law would say otherwise.

Edited again on February 6, 2011 And he wrote back yet again:

I am trying to resolve this matter with you professionally. Yet, you continue with the insults and name calling in your articles. As I mentioned, the information below, as well as the cases, are irrelevant. Now you want me to say, “I didn’t write it”? Hilarious, read your first emails back in November. You are relying on another blogger’s info for your so-called facts. It will amount to hearsay unless that person testifies in court. Some of your statements are Rhetorical Hyperbole, others are mentioned as fact, “compelling facts” per popehat. But as you know its all based on context.

Jurisdiction..?
I am very well aware of Jurisdiction Ken. [lengthy discussion of my contact information and ties to Los Angeles redacted.] Do I reside in the beautiful state of California, County of Los Angeles..? We will see.

Anti-Slapp..?
You have to state your case. Then I will present the real facts. You will not be granted a slapp even if you were a California pimp.

Ken, Is Marc Stephens a licensed attorney, or lawyer? Yes or No?

So far your investigation is based on hearsay, misinformation, lack of knowledge, lies, and people inside your network. So please stop telling the public that I am a criminal, etc. You are being extremely negligent. Hey, I will check back in a few weeks for the retraction or deletion. Hopefully by then you will stop using your son’s pic as your profile image. Come get some sun light and stop hiding. I also noticed a few weeks ago you guys shut down meetings, articles, websites, abandoned your first amendment rights and ran like hell when the Muslims came after you Skeptics. Hilarious.

Thanks,
Marc

To which I replied:

Marc:

I take all of that as a statement you will be suing me in California. See you in court, then.

I note that you still refuse to provide facts or evidence explaining what I supposedly got wrong.

If you provide facts and evidence — instead of threats and bluster — I am still very happy to evaluate them and, if appropriate, make any warranted correction.

Thank you,

Ken

California has a very robust anti-SLAPP statute which I have used successfully before. I look forward to using it against Marc if he sues here.

Marc's grasp of law continues to be comical — assuming that he's not straight-up trolling. He seems to think that "hearsay" is a rule that means that, in writing about something, I can't rely upon what other people have written, unless I call them as witnesses first or something. He also seems to think that in order to prevail on an anti-SLAPP motion I would have to call as witnesses the array of bloggers I linked and quoted and relied upon. This, of course, is ridiculous. All I would have to do to prevail on an anti-SLAPP motion is to submit a declaration attaching the blog posts I read and linked and relied upon, and then attack the history of correspondence with Marc, which corroborates everything I have written.

Note that Marc still refuses to explain exactly how or why I am wrong about anything. That's characteristic of bogus legal threats. I was quite sincere in my message to him, which I have sent over and over and over: if he specifies a fact that he thinks I got wrong, and explains why he thinks it is wrong, I will review his facts and evidence carefully and, if warranted, make a correction. But I think his trolling, bullying approach requires him to be coy and mysterious.

Marc also seems obsessed with the notion that I have called him "a criminal." I've reviewed my posts, and I don't believe I ever used that term. I did say — accurately — that practicing law without a license is a crime in some jurisdictions, including California. I believe it is revealing that Marc refuses, no matter how many times he is asked, to say whether or not he is a licensed attorney in any jurisdiction. Marc seems to think that because I cannot prove that he is not a licensed attorney in some jurisdiction somewhere (though he is clearly not, at least under the name he is using, in California), then I must be committing defamation in making my observations about him. Such bizarre semantic games are typical of the deranged, but will find no traction in court. If some law school DID permit him to graduate, that school ought to face an angry mob with torches and pitchforks.

Perhaps I am a terrible son, husband, father, partner, boss, friend. Perhaps I leave misery at worst and dissatisfaction at best wherever I go. Perhaps I am a contumacious, snarky ass. Perhaps my stumbling, heavy footprints in the sands of time will be quickly covered.

But if "snort my taint" — a phrase I coined — becomes a commonly accepted response to bumptious lawsuit threats, then I can die someday thinking that I have lived well enough.

Also, a free protip: if you want to set yourself up as a sympathetic plaintiff in a potential defamation suit against a critical blogger, you may want to eschew leading with "you just want special treatment because you are a Jew."

Step right up, ladies and gentlemen! Three for the price of one! Tales of censorious douchebags that will thrill and amaze you!

First up, we have Dr. Randeep Dhillon! Dr. Dhillon is suing Jay Leno. Is he suing Jay Leno for being a trite, phone-it-in placeholder? NO! There's no California cause of action for that! SAG would never allow it! No, Randeep Dhillon is suing Jay Leno for a lame joke about Mitt Romney suggesting that his vacation home was the Golden Temple of Amritsar, a holy site for Sikhs! Dr. Dhillon says that by making this joke, Leno "exposes plaintiff, other sikhs and their religion to hatred, contempt, ridicule and obloquy because it falsely portrays the holiest place in the Sikh religion as a vacation resort owned by a non-Sikh." He's backed up by an Indian foreign affairs minister who says "freedom does not mean hurting the sentiments of others."

Congrats, Dr. Dhillon! You win a date with California's robust anti-SLAPP statute! You're going to pay Jay Leno's attorney fees in this case, which I will estimate to be $50,000! And because some people will generalize about Sikhs based on the act of one asshole — you — you've just done more to expose Sikhs to hatred, contempt, ridicule, and obloquy than that threadbare hack Leno ever could! Way to go!

Next, ladies and gentlemen, we travel North, to Canada, and the Fredericton, New Brunswick Police Department! The Fredericton Police just staged a eight-officer raid of the apartment of Charles LeBlanc! Is Charles LeBlanc breaking bad with a meth lab? Does he have children in cages? Is he a gun-runner? No! He's a blogger, and he's being raided for criminal libel for criticizing the Fredericton Police! That's right! The Fredericton Police Department not only thinks it is appropriate to serve search warrants on bloggers who say mean things to them, they think that they should execute the search warrants themselves, even though they are the alleged victims of the criminal libel! That's the New Professionalism in action, ladies and gents! Stand and be amazed!

And finally, across the pond, to England! Sally Morgan, purported psychic, is suing the Daily Mail for saying her psychic abilities are bunk! Her suit faults the Daily Mail for running columns exposing the ways that purported psychics con their audiences! Hey Sally — surely you don't need to conduct discovery in this case — you know all the answers to your questions already!

It's not faked, ladies and gentlemen! Freakish, yes! Difficult to believe, yes! Astounding, yes! But all of it real! Step right up and see!

"Liberty," said Learned Hand, "lies in the hearts of men and women. When it dies there, no constitution, no law, no court can save it."

Learned Hand was quite right — if people don't support basic legal norms like freedom of expression and due process of law, no legal systems will be sufficient to enforce those norms. They will wither. But how is the appetite for liberty born in our hearts? Some choose to believe that it is an inherent aspiration of humanity. I don't think that history, ancient or recent, supports that. Rather, I think that liberty is a cultural value, carefully cultivated by example and education. Good American citizenship is characterized by fidelity to shared taught values, and a willingness to support them and teach them to others.

Like any value, liberty can also be suppressed. People — especially young people — can be taught to scorn it.

Right now, the Shawano School District is Wisconsin is teaching students to scorn free expression. The Shawano School District, through its leaders, is teaching bad American citizenship.

Continue Reading »

A couple of weeks ago I described events at University College of London, where the Atheist, Secularist and Humanist Society got in trouble with the Student Union because it posted a "Jesus and Mo" comic on its Facebook page.

That incident demonstrated that the "we have a protected right not to be offended" sentiment survives and even thrives.

It ain't over yet. The controversy has spread to the famous London School of Economics, where the local Atheist Secularist and Humanist Society posted the same "Jesus and Mo" comic on its Facebook page in solidarity with their UCL chapter, and received an even stronger response from the local Student's Union: a threat that they could be expelled from the Student Union unless they took it down. The LSE Student Union's statement on the matter is a master class in the mindset of censorious bureaucrats; indulge me and read it in full, with my emphasis:

On Monday 16th January it was brought to our attention via an official complaint by two students that the LSESU Atheist, Secularist and Humanist Society posted cartoons, published by the UCLU Atheist, Secularist and Humanist Society, depicting the Prophet Mohammed and Jesus "sitting in a pub having a pint" on their society Facebook page. Upon hearing this, the sabbaticals officers of the LSESU ensured all evidence was collected and an emergency meeting with a member of the Students' Union staff was called to discuss how to deal with the issue. During this time, we received over 40 separate official complaints from the student body, in addition to further information regarding more posts on the society Facebook page.

It was decided that the President and other committee members of the LSESU Atheist, Secularist and Humanist Society would be called for an informal meeting to explain the situation, the complaints that had been made, and how the action of posting these cartoons was in breach of Students' Union policy on inclusion and the society's constitution. This meeting took place on Friday 20th January at 10.30am. The society agreed to certain actions coming out of the meeting and these were discussed amongst the sabbatical team. In this discussion it was felt that though these actions were positive they would not fully address the concerns of those who had submitted complaints. Therefore the SU will now be telling the society that they cannot continue these activities under the brand of the SU.

The LSE Students’ Union would like to reiterate that we strongly condemn and stand against any form of racism and discrimination on campus. The offensive nature of the content on the Facebook page is not in accordance with our values of tolerance, diversity, and respect for all students regardless of race, ethnicity, gender, sexuality or religious affiliation. There is a special need in a Students' Union to balance freedom of speech and to ensure access to all aspects of the LSESU for all the ethnic and religious minority communities that make up the student body at the LSE.

All the tropes of the censorious bureaucrat are there: leaping into action to bring petty power to bear, inquisitorial demands about the reasons for speech, and a bold pronouncement that free expression must be "balanced" — the balancing to be done by petty bureaucrats — against open-ended, vague, and unprincipled anti-discrimination principles. All of this was a result of a cartoon, on an organization's own Facebook page.

There are two ways to approach this phenomenon in the university. One way is for student organizations to abandon student unions and their petty speech-policing martinets and go their own way at the cost of funding and facilities. Student union funding has often been used as a weapon to suppress disfavored speech and association, and American courts have sometimes supported that use — as when the Supreme Court recently ruled that public schools could use anti-discrimination principles to de-fund religious groups unless they allowed non-believers to take leadership positions. This is a hard path — that student union money and those student union facilities, meager though they may be, can be essential to getting an organization off of the ground.

The other approach is to speak out, forcefully, and call out the bureaucrats who use their petty power to suppress expression they don't like under the thin guise of anti-discrimination principles. The seeds of the student unions' destruction lies in their own hubris, their own words. Ask any student: do you really trust student union leaders to "balance" your right to speak against whatever they feel is important on any given day? Ask any student: what sort of puerile, sanitized campus will you have if the student union defunds any group that ever says anything that anyone could find objectionable? Ask any student: do you really think, for even a moment, that the student union will weigh speech in the balance even-handedly? The London School of Economics Student Union condemns and censors a satirical cartoon on a humanist site — but do you think that those same student union members will lift a censorious finger to condemn or discourage actual threats of violence by people who claim offense at such discourse?

The survival of core cultural values like robust freedom of expression depends upon you — and people like you — calling out and condemning the censors of the world. I'd like to see the specific LSE Student Union leaders who took this action named and shamed worldwide. What can you do to help?

Hat tip to Ophelia Benson.

Edit: Via the comments, two more posts about the incident: the LSE Student Union paper, and Legal Cheek.

You might have noticed that Popehat blacked out yesterday to join the protest against SOPA/PIPA. (The technical aspect of that effort was all David's work; if I had tried it . . . well, suffice it to say all these posts might have been lost, like tears in rain, etc.) The widespread protest seemed to succeed at its aim of raising awareness and led to defections from the ranks of SOPA/PIPA supporters.

All of that seemingly effective advocacy raises a question: did its participants have a First Amendment right to protest that way?

For folks like us at Popehat — mere individuals, not corporations or partnerships (we're more like an unincorporated mystical brotherhood) — the answer is rather clearly yes. Few would dispute it.

But for entities like Google, or Mozilla, or the Wikimedia Foundation, the answer is apparently unsettled in the minds of some of you.

Some of the criticism began with the Citizens United case, which held that the McCain–Feingold Act violated the First Amendment to the extent it purported to prohibit a non-profit corporation from producing and airing a film attacking Hillary Clinton. Elements of the Occupy Wall Street campaign took up the cry, asserting that corporations are not people and only people, not corporations, have constitutional rights.

These sentiments seemed largely absent yesterday when various business entities — from non-profits like Wikimedia Foundation to for-profits like Google — expressed themselves in opposition to SOPA/PIPA.

So, to critics of Citizens United, I have a question: should those business entities have had a right to engage in SOPA/PIPA protests like they did? If so, what is the source of that right, and by what mechanism is it vindicated?

After all, not everyone was happy with the corporate participation in the protest. As I discussed on Tuesday, the MPAA broadly hinted that such expression is permitted only at the sufferance of government and its favored lobbyists:

It is also an abuse of power given the freedoms these companies enjoy in the marketplace today. It’s a dangerous and troubling development when the platforms that serve as gateways to information intentionally skew the facts to incite their users in order to further their corporate interests.

Note how the MPAA cloaks itself in populist anti-corporate rhetoric, hoping you are too intractably stupid to grasp that the MPAA is the ultimate corporate lobbyist asking Congress to pass sweeping legislation favoring it over the rights of citizens and other corporations. Note also the MPAA's use of the core idea underlying opposition to Citizens United: incitement, the concept that corporate speech is illegitimate and dangerous because it leads citizens into false consciousness so that they vote and act in ways we don't like.

But the MPAA is just an industry mouthpiece. Surely the media — which prizes freedom of expression above all else — will reject this narrative, right? Wrong — or, at least, wrong in some cases, as with the sad rag-peddlers at the Boston Herald:

Within hours of the online protest, political supporters of the bill — including the usually sensible Sen. Marco Rubio (R-Fla.) — began dropping like flies, thus proving how very powerful these cyber-bullies can be.

"Cyber-bullying" is, of course, one of those Humpty-Dumpty categorical terms that we use when we disagree with speech but can't articulate a principled basis for saying it lies outside the protection of the First Amendment.

So: many were happy with the SOPA/PIPA protests, but some weren't. Some of the unhappy people are powerful — like the MPAA and its gang of censorship apologists.

If you think that Citizens United was wrong — if you think that corporations shouldn't have First Amendment rights — then why, exactly, can't the government punish Wikimedia Foundation or Google or any other non-human entity for speech that offended its favored lobbyist and contributor, the MPAA?

(Note that I'm addressing people who say corporations have no First Amendment rights, not people who say campaign donation restrictions do not violate the First Amendment because money is not speech, which is an entirely different ranty post.)

So:

1. If corporations have no First Amendment rights, why can't federal or state or local governments single out, say, Wikimedia Foundation for its SOPA/PIPA blackout? Why can't they penalize or fine or even dissolve it? Why can't they single Wikimedia Foundation out for disproportionate enforcement of unrelated laws in retaliation for disfavored speech?

2. If your answer is "the political process — the voice of the people — will stop them from suppressing expression in this way," what is the historical basis in America for the assertion that the political process, standing alone, without judicial review based upon application of constitutional rights, is sufficient to stop governmental overreach? How's that working out for, say, the rights implicated by the War on Drugs, or the post-9/11 Security State? How well does the political process work to protect freedom of expression from government efforts to, say, ban mean pictures on the internet? The political process will protect corporations from governmental retaliation against disfavored expression? Are you shitting me?

3. If courts adopt your view — if the Supreme Court says "corporations have no First Amendment rights" — is it really your view that government restrictions on corporate speech will be imposed in a neutral and even-handed manner? Really? You think that corporate influence will be so driven from politics that, for instance, the MPAA and RIAA won't be able to induce the government to retaliate against the Wikimedia Foundations and Googles of the world? Again, on what historical precedent — on what logic — do you premise that belief?

4. You say that people, not corporations, have First Amendment rights. Fine. Tell me: as a person, how do you plan to exercise your freedom of speech if corporate venues for doing so may be restricted by the government? SOPA/PIPA is actually an excellent example of this. SOPA/PIPA did not merely attack accused pirates directly — it used ISPs as its minions. SOPA/PIPA threaten ISPs and major web sites — corporations — with dramatic consequences if they so much as link to sites that the government (or its preferred lobbyists) disfavor. So. If the government is allowed to use this method, what, exactly, protects us when the government decides to bully corporations into making us vanish from the internet? If the government says "you writers at Popehat have First Amendment rights; we can't punish you. But you, Google, you have no First Amendment rights; you have no right to list Popehat in search results. You, ISP, you have no First Amendment rights, you have no right to host sites like Popehat. You, Major Publisher, you have no First Amendment rights, you have no right to publish Popehat's exciting upcoming book, In Which Snark Substitutes For Grammar And Serious Analysis: The Taint-Snorting.

For that last, you might say, "they can't do that, because you have First Amendment rights, and those corporations are just the vehicles through which you are exercising those rights." To which I say: exactly. That's what entities are — vehicles through which people do things. Sometimes they are objectionable things, sometimes they are stupid things, soometimes they are things that, if accepted, would lead to deplorable results. But entities — corporations — are vehicles for human activity, including expression.

So. Advocates of the "corporations have no First Amendment rights" position: why can't the government punish the corporations that blacked out yesterday?

Back in December I wrote about Rhys Morgan, the 17-year-old British skeptic-blogger who stood up to legal threats from the transcendentally nutty fake lawyer Marc Stephens. As I said then, the internet needs more people — whether 17 or 70 — like Rhys, who are willing to stand up against such censorious intimidation tactics.

But standing up is sometimes easier said than done. Legal threats — like physical threats — can have real-world consequences. Rhys is learning that this week, as online threats and complaints have led him to censor his Facebook page upon pain of suspension or expulsion from his school.

Rhys is in what we in America would call high school. In the U.K. I believe they call it Secondary School or Twentieth Form or the loo or lorry or Toad in the Hole or Spotted Dick or something. Recently Rhys saw fit to comment upon something that I discussed here — a controversy at University College of London regarding a cartoon of Mohammed and Jesus, which became embroiled in a discussion of the imagined right not to be offended. Rhys — both as a skeptic and as a supporter of free expression — changed his Facebook profile picture to the cartoon in solidarity with the UCL skeptics.

Then all hell broke loose. Rhys was deluged with demands to take the picture down, insults, and threats. His school got involved, and threatened him with expulsion or suspension — apparently upon the theory that his actions his expression may have brought the dispute into the school, and because his posting causes offense to some classmates. Rhys' critics are employing the classic categorical dodge I've written about, saying that his actions have "nothing to do with freedom of expression" — because, see, if we say it's offensive, if we say it's "hate speech," then it no longer belongs in the free speech box.

Rhys is experiencing harassment and suppression in the U.K., but his situation reflects a universal problem, and one that is at the cutting edge of First Amendment litigation in the United States. The extent to which American public schools can punish students for out-of-school speech — especially speech on the internet — is in flux. First, student free speech rights in general seem to be on the wane, declining from a high-water mark with Tinker as the Supreme Court has given school administrators more discretion to determine what speech is "disruptive" and to police "inappropriate" speech at school-related events. The Supreme Court has not yet applied this line of cases to student expression on social media or other internet venues; just today, in a move that may or may not be significant, the Court declined to review a number of Circuit cases involving off-campus internet speech, leaving the area in doubt.

Though it takes place in another country under notably different legal standards, Rhys' situation perfectly illustrates the dangers of giving schools an unrestricted and unprincipled license to police students' online speech based on their "disruptive" or "offensive" qualities. A compliant school gives Rhys' critics a perfect heckler's veto: merely by attacking, harassing, and threatening him online, even anonymously, they can convince the school that his expression is "disruptive," and therefore make his school feel justified in demanding that he change his Facebook profile to satisfy his censors. Similarly, an utterly subjective and unprincipled notion of "offense" — one that focuses on the feelings of people who voluntarily visit Rhys' Facebook page, and not on the question of whether Rhys is doing anything to interfere with students' day-to-day activities at school — allows anyone who disagrees with Rhys to demand that the school censor him by making the irrefutable claim "this offends me." Under this arrangement, students can only write online under the sufferance of their most censorious critics.

Yet as I suggested before, Rhys Morgan is precisely the sort of student that should thrill schools: engaged in important adult issues, curious, expressive, self-motivated, and involved in larger communities of ideas. Don't we want 17-year-olds thinking and writing about subjects that involve controversy? Don't we want them to engage the big ideas that historically have caused division? Or do we want them to proceed ploddingly from one standardized test to the next, concerned only with dining on the reheated and prefabricated meals that schools put before them, never dabbling in anything that might offend or cause controversy or headlines? Of course, young people who explore and learn and engage and write on their own are independent in ways that might not please people whose power depends upon them acting like junior stenographers. Could there be something about Rhys Morgan — something more than posting a cartoon depicting Mohammed — that threatens and offends modern "education professionals" even more than it angers and offends interest groups? Could part of the conflict between free speech and "disruption" be not so much about harmony on campus, but about "professionals" seeking control over the ways that students think, interact, and learn?

Listen to me: no sensible and well-ordered society can recognize a right to be free from offense. It's unprincipled and mercurial, a celebration of the rule of subjective reaction over the rule of law. It's an open invitation to censorship-by-heckler's-veto. It chills satire, parody, sharp retorts, hard truths, and uncomfortable revelations. George Bernard Shaw says "all great truths begin as blasphemies" — so where is the room for exploration of truth in a society that lets every entitled group define its own blasphemies and demand that everyone avoid uttering them? Going to courts complaining of fee-fees is no basis for a system of government.

Why the mini-rant? It's because today, courtesy of Ophelia Benson, I learned of a loathsome example of the assertion that we all have the right not to be offended, and an illustration of how it can be used as a weapon of suppression. The Atheist, Secularist and Humanist Society (ASHS) at University College London has a Facebook page, and on that page they posted a picture as part of an invitation to a party:

And you know what happened next:

Continue Reading »

I'll be the first to admit: sometimes we are more than a little mean to the United Kingdom here at Popehat. But we kid because we love. The language, the history, the culture, the television, the fond memories of student life spent shivering on cobbled streets after the bars closed ludicrously early, waiting for a kebab van so that we could eat some gray meat carved off of a questionable shapeless haunch — we love it all.

But we don't love the U.K.'s approach to libel, and we applaud the recent rumblings of reform there. Though the SPEECH Act helps to protect Americans from the worst excesses of the U.K.'s plaintiff-biased and libel-tourist-destination system, that's cold comfort to Brits who get sued.

Consider the case of Vaughan Jones, a young blogger sued for leaving negative reviews of a book. I learned of Mr. Jones when he made some kind comments in the course of discussing legal threats from bumptious fake lawyer Marc Stephens. From there, I found and read John's fascinating and chilling blog about being a libel defendant in the U.K.

U.K. law limits what Jones can say about his own case. But he has a good summary of links to media coverage, including this one. The case concerns reviews Mr. Jones left on Amazon — now deleted — regarding Chris McGrath's book The Attempted Murder of God: Hidden Science You Really Need To Know. McGrath has also sued Amazon itself over these negative reviews, and has sued Richard Dawkins and the Dawkins Foundation for their commentary. As you know, we have a low opinion of people who sue over negative book reviews. They are loathsome.

Apparently a decision is expected soon based upon the initial hearings. I look forward to reading it. Meanwhile, consider Jones' discussion of proposed reforms to U.K. libel law. Also consider his description of proceedings, some of which seem very odd to our tastes.

Today I was resting my eyes on the couch when I got an email tip that someone was making frankly nutty legal threats against a science blogger. There's a blogger in trouble somewhere! I'm like the Wonder Pets, only with 1.375 times more sexual magnetism.

Time for the Popehat Signal.

I investigated, and found that the blogger had written a clear and really extraordinarily mild statement of opinion, and the subject of opinion had posted legal threats on the blog and sent profane, threatening, and frankly disturbing threats by email. The blogger's comment is indisputably protected by the First Amendment and the threat is freakishly frivolous.

I've agreed to help the blogger pro bono. The potential plaintiff has threatened a defamation suit in Texas. Given the communications, it's entirely possible that the threat represents bluster or delusion. But if they are malicious and unethical enough to pull the trigger, we'll need boots on the ground in the Great State of Texas. I'll still do most of the work. Maybe we can test the new Anti-SLAPP statute!

So. Can any Texas lawyers, or people who know Texas lawyers, help us out?

Update: Thanks to all of the lawyers who have responded in the comments or by email, and to those who have suggested leads. Texas attorney Gary Krupkin, an estimable and formidable defender of the First Amendment, has stepped in to act as Texas counsel. Please join me in thanking him: his willingness to help represents the best tradition of service to beleaguered clients and to the First Amendment, and shows how together we can help bloggers resist frivolous legal threats.

There will be an update with a description of the situation only if the best interests of the client warrant. Thanks for understanding.

If you've followed the public discussion over the purported connection between vaccines and autism, you know the name Andrew Wakefield. Wakefield's 1998 article in Lancet purported to find a connection and has long been a battle-standard of anti-vaxxers. Wakefield's purported findings were later widely discredited, and Lancet retracted the original article.

This week Andrew Wakefield sued some of his critics in state court in Texas. Specifically, he sued the British Medical Journal, or "BMJ," and writer Brian Deer. The lawsuit accuses BMJ and Deer of defamation for their vigorous criticism of Wakefield, his publications, his studies, and his claims.

My purpose in this post is not to review what, at the risk of using the term loosely, I will call the "scientific dispute"; others far better qualified than I have discussed Wakefield's record exhaustively. Rather, I have two other purposes: to discuss an attribute of the modern "alternative" medicine movement, and to discuss the significance of Texas' new anti-SLAPP statute to this lawsuit.

First, the "alternative medicine" movement. I use that term to refer both to purveyors of treatments not generally accepted by Western medicine — naturopathy, homeopathy, etc. — and to refer to conspiracy-minded groups that believe that the FDA and "Big Pharma" and the Medical-Industrial Complex are concealing grave truths about Western medicine (like, for instance, the notion that vaccines cause autism).

At the risk of sounding unscientific, the alternative medicine movement strikes me as having a serious taste for censorship and an ingrained intolerance for dissent and criticism. I've written about it here: anti-vax lawyer Clifford Shoemaker's legal harassment of Neurodiversity blogger Kathleen Seidel, the British Chiropractic Association's failed crusade against Simon Singh, naturopath Christopher Maloney's feckless SLAPP threat against blogger Michael Hawkins, and even Marc Stephens lawyer-posing against critics of the Burzynski Clinic.

I realize that is a limited sample from which to draw conclusions, and that nobody has tested my thesis. But if purveyors of tinfoil-hat science have taught me anything, it is that (1) peer review is a hoax, and (2) all alternative medicine practitioners everywhere carry the diluted memory of these particular examples.

Second, the Texas suit by Wakefield will be an excellent opportunity to test Texas' new anti-SLAPP law. Anti-SLAPP laws, for those not familiar with them, are statutes allowing defendants who have been sued based on their speech to force the plaintiffs to establish they have a valid basis for their suit before going forward, and to collect attorney fees if the plaintiff fails. I am rather fond of them.

Anti-SLAPP laws vary from broad and useful to weak and nearly useless. Texas' statute appears to be one of the broadly written and strong ones. If BMJ and Deer decide to use it, here's how it will work:

1. BMJ and Deer have the initial burden of showing that the lawsuit is "based on, relates to, or is in response to" their exercise of their rights to free speech, petition, or association. Those terms are defined pleasingly broadly:

(2) ”Exercise of the right of association” means a communication between individuals who join together to collectively express, promote, pursue, or defend common interests.

(3) ”Exercise of the right of free speech” means a communication made in connection with a matter of public concern.

(4) ”Exercise of the right to petition” means any of the following:

(A) a communication in or pertaining to:

(i) a judicial proceeding;

(ii) an official proceeding, other than a judicial proceeding, to administer the law;

(iii) an executive or other proceeding before a department of the state or federal government or a subdivision of the state or federal government;

(iv) a legislative proceeding, including a proceeding of a legislative committee;

(v) a proceeding before an entity that requires by rule that public notice be given before proceedings of that entity;

(vi) a proceeding in or before a managing board of an educational or eleemosynary institution supported directly or indirectly from public revenue;

(vii) a proceeding of the governing body of any political subdivision of this state;

(viii) a report of or debate and statements made in a proceeding described by Subparagraph (iii), (iv), (v), (vi), or (vii); or

(ix) a public meeting dealing with a public purpose, including statements and discussions at the meeting or other matters of public concern occurring at the meeting;

(B) a communication in connection with an issue under consideration or review by a legislative, executive, judicial, or other governmental body or in another governmental or official proceeding;

(C) a communication that is reasonably likely to encourage consideration or review of an issue by a legislative, executive, judicial, or other governmental body or in another governmental or official proceeding;

(D) a communication reasonably likely to enlist public participation in an effort to effect consideration of an issue by a legislative, executive, judicial, or other governmental body or in another governmental or official proceeding; and

(E) any other communication that falls within the protection of the right to petition government under the Constitution of the United States or the constitution of this state.

2. BMJ and Deer should have no trouble whatsoever meeting that definition — the complaint targets speech about a classic matter of public concern. (Note that the statute does not say "protected by the First Amendment," meaning that Wakefield can't claim that their communications don't qualify because they were uttered in the United Kingdom.) Therefore, the statute requires the judge to dismiss the case unless Wakefield "establishes by clear and specific evidence a prima facie case for each essential element of the claim in question." What does that mean? Following California's model, it probably means that Wakefield must offer specific and admissible evidence that, if believed, would show he is entitled to relief and that the First Amendment or other legal doctrines do not protect the speech complained of. (Note that the First Amendment would protect the BMJ and Deer for these purposes because Wakefield is attempting to use a court — an instrumentality of state government — to punish speech.)

There are subtle differences between an anti-SLAPP motion and a motion to dismiss, sometimes called a demurrer. Generally a motion to dismiss must be based only on the four corners of the complaint — evidence is irrelevant, with a few narrow exceptions. By contrast, good anti-SLAPP statutes — like Texas' — allow the defendant to offer evidence. For instance, BMJ and Deer can submit the full text of the writings complained of so that the judge can evaluate them rather than the complaint's summary or characterization of them. This is particularly important when a defense is based, for instance, on asserting that a complained-of statement is a protected opinion, not a false statement of fact, when viewed in context. Submitting evidence can make it dramatically more difficult for a plaintiff to carry his burden. For instance, a defendant accused of a false statement against a public figure might submit a declaration explaining that he was repeating something heard from a reliable source, thus making it almost impossible to make a showing of malice.

3. If Wakefield can't carry that burden, the court must dismiss the complaint and award legal fees and costs to the defense.

I see one gateway legal issue complicating application of the new anti-SLAPP statute: personal jurisdiction. As The Skeptical Lawyer points out, it is questionable whether the Texas court has personal jurisdiction over Brits BMJ and Deer. This is a hot topic: by merely writing something published worldwide, do you subject yourself to jurisdiction wherever that thing is read, or wherever the subject lives? Hell, I sure hope not; that would be a ludicrous result. (Shame on you, Florida.)

Here's the complication: BMJ and Deer may not be able to file a SLAPP motion without subjecting themselves to the jurisdiction of the Texas court. I'm not a Texas lawyer, but in most jurisdictions, when you are contesting personal jurisdiction, you can only make a special appearance for purposes of filing a motion seeking to dismiss for lack of personal jurisdiction. If you make a broader appearance, courts often deem you to have consented to jurisdiction. Does that mean BMJ and Deer must first file a motion to dismiss for lack of personal jurisdiction, and then file a SLAPP motion if they lose? Maybe. Perhaps a Texas practitioner could chime in. For myself, I'd be inclined to remove the case to federal court based on diversity jurisdiction and litigate the issues there. I have nothing against Texas state courts, other than not particularly trusting Texas state courts. I'd rather address an issue like this in federal court, where judges have more manageable dockets, have more support from law clerks and staff, are more accustomed to resolving legally complex motion practice, and (in my opinion) tend on average to have a higher level of professionalism. Federal courts sitting in diversity apply state anti-SLAPP laws, so the defendants could still pursue that motion after they worked out the jurisdictional issue.

The Texas suit poses many other legal issues; The Skeptical Lawyer discusses some of them. It's one to watch. Stay tuned.

Edit: Orac on the science of it.

Edit 2: I completely forgot to give Liz a hat tip for pointing me to this; she's keeping a list of posts about it.

Yes, I will be discussing Joseph Rakofsky winning Popehat's 2011 Censorious Asshat of the Year Award soon. In the meantime, check out the Thomas Jefferson Center's list of 2011 Muzzles of the Year. For that matter, if you want to ruin your day and spike your blood pressure, check out their archive.