Browsing the archives for the Free Speech tag.


The Self-Perpetuating Logic Of Censorship

Law, Politics & Current Events

When I oppose things like European prohibitions on denying the Holocaust, or "hate speech" laws, people tell me that I Don't Get It, that these laws address unique situations and unique historical dilemmas, and that they do not represent a wholesale abandonment of the value of freedom of expression.

The problem is that censorship is legally and culturally self-perpetuating. Once you accept that it is legitimate to ban speech because it is offensive, or ban ideas as historically dangerous, that decision is used both as a legal precedent and — invoking the values of fairness and equality — as an argument for banning other offensive speech.

This week's case in point: the United Kingdom. Maajid Nawaz, a Liberal Democrat parliamentary candidate, tweeted a link to the cartoon Jesus and Mo. That cartoon depicts Jesus and Mohammed having conversations, often in a way that subverts religious doctrine and attitudes. I have previously written about how it has led to calls for censorship over in the U.K. This time, Nawaz' tweet — which said quite reasonably "This is not offensive & I'm sure God is greater than to feel threatened by it" — has led to death threats and abuse.

There's a petition on the ever-optimistic Change.org that illustrates my point. Demanding that Nawaz be removed as a candidate, the petitioners ask this:

2. Is it right that questioning the official 6 million figure in favour of e.g. 4 million, is tantamount to Holocaust Denial which is a criminal offence in Europe?

3. Was is right that the play Behzti was cancelled due to the sensitivities in the Sikh community?

4. Or that the poem "Education for Leisure" was removed from the AQA's (Assessment and Qualifications Alliance – an Awarding Body for GCSEs and A-Levels) Anthology, after complaints were received?

Though the argument requests action from a party, not from a government, it mirrors the argument we see put to the government all the time. Muslims demanding official censorship have have asserted this justification for censorship before. Why shouldn't they? It's an appeal to the Western value of equality and fairness. How can we be solicitous of offense to one group, but not offense to another? We're not racists or something, are we? Are we only protecting the people we like?

We can't control how other people will feel, or what they will find offensive. We can only govern what we do about it. We can only condition people to expect from us defense or free expression, on the one hand, or official and punitive solicitude to hurt feelings, on the other. Once we start using the force of the state to punish people for being offensive, we should expect everyone who has ever been offended to come knocking on our door, asking "What about me? Don't I have feelings?"

Kudos, at least, to the extent these protesters are only demanding party action — which is a form of party politics and freedom of association — and not state punitive action. But the Liberal Democrats might want to consider what they'll be asked to punish next.

29 Comments

Colorado State University-Pueblo Vigilant Against Metaphor, Allusion, Unpleasant Historical References

Law, WTF?

Recently Colorado State University-Pueblo took strong and immediate action to contain what it suggested was a possible violent threat to campus. President Lesley Di Mare explained:

"Considering the lessons we’ve all learned from Columbine, Virginia Tech, and more recently Arapahoe High School, I can only say that the security of our students, faculty, and staff are our top priority," Di Mare said. "CSU-Pueblo is facing some budget challenges right now, which has sparked impassioned criticism and debate across our campus community. That’s entirely appropriate, and everyone on campus – no matter how you feel about the challenges at hand – should be able to engage in that activity in an environment that is free of intimidation, harassment, and threats. CSU-Pueblo has a wonderful and vibrant community, and the university has a bright future. I’m confident that we can solve our challenges with respectful debate and creative problem-solving so that we can focus on building that future together."

My God! Columbine? Virginia Tech? Arapahoe High School? What happened? Did somebody send a death threat? Did an angry student bring a gun to school? Were there rumors of a massacre?

No. A professor criticized staffing cuts and rhetorically compared them to historical abuses of power.

Continue Reading »

55 Comments

Protecting The Free Speech of Censors: The Crystal Cox Saga

Law

This is how the rule of law works: we extend rights to the very people who would deny us those rights if they had the chance.

Ariel Castro imprisoned young women in his basement without anything resembling due process, but he got a lawyer and his days in court until he thoughtfully offed himself. We protected the Nazis' right to march at Skokie, and say what you want about the tenets of National Socialism, dude, but it doesn't protect the free speech or assembly rights of others. We protect the right of Fred Phelps' family to protest at funerals even though the America of Phelps' dreams is a theocratic hellhole.

So it shouldn't be any surprise that we protect the free speech rights of the disturbed and vengeful blogger Crystal Cox, even though she abuses the legal system in an effort to censor and retaliate against people for criticizing her.

That's how we roll.

Last week the United States Court of Appeals for the Ninth Circuit upheld Crystal Cox's First Amendment rights, and in doing so protected yours, and mine, in important ways. This post is about that decision, and about what Crystal Cox was doing to undercut the First Amendment while the Ninth Circuit was thinking about it. As you will see below, I am one of the people Cox has tried to silence with frivolous litigation even as courts were protecting her right to speak.

Continue Reading »

96 Comments

From the "lol journalism" Files: No, The Defamation Case Against Courtney Love Will Not Change Twitter

Law

An appallingly large percentage of journalism about the legal system sucks.

There are exceptions — there are legal journalists I respect, who take pains to get it right — but for the most part the media gets coverage of both criminal and civil cases badly wrong. (I am aware of Gell-Mann Amnesia and therefore please do not infer that I believe other coverage is necessarily more reliable.)

Case in point: coverage of a defamation suit against Courtney Love. Take ABC's coverage. ABC starts with this:

Continue Reading »

98 Comments

Roger Shuler Convicted of Resisting Arrest, Remains In Custody for Contempt of Prior Restraint Order

Effluvia

I've previously written about Roger Shuler, the Alabama blogger currently in jail for contempt of court based on his defiance of an injunction that is likely an unconstitutional prior restraint of speech. Though I think that Shuler's history shows him to be a vexatious litigant, and though I think his erratic and foolish behavior has contributed substantially to this situation, I find the injunction against him and his incarceration for violating it very troubling. I'm quoted on that point in last weekend's New York Times.

There are some developments of note.

Shuler Has Been Convicted of Resisting Arrest And Sentenced to 90 Days Imprisonment, Suspended

Roger Shuler was charged with "resisting arrest" (sometimes called "contempt of cop") based on alleged conduct during his arrest in October 2013. Yesterday he was convicted of resiting arrest and sentenced to 90 days in jail, suspended, after a bench trial (that is, a trial by judge, not by jury) before Shelby County District Judge Ronald Jackson. I'm not an expert on Alabama criminal procedure, but my rough understanding is that misdemeanors like this are tried by bench trial in the "district courts" of Alabama, and can be appealed to the "circuit court" for a trial by jury, which is a strange way to run a railroad.1

Three things concern me about Shuler's bench trial.

First, he represented himself. It's not clear whether he refused appointed counsel (which he foolishly did before) or whether he was somehow deprived of one. I suspect he refused counsel, which is transcendentally idiotic and self-indulgent. He had a right to appointed counsel. Nothing in his history of pro se litigation suggests he was even minimally competent to defend himself.

Second, the judge denied Shuler a continuance to gather evidence, which Shuler requested because he had been in custody since October:

Jackson denied a request made by Shuler that the case be continued after he claimed that his incarceration prevented him from preparing his defense and obtaining certain discovery material, such as a video recording of the incident and copies of arrest warrants.

Now, representing yourself is likely to lead to this sort of result — you're not prepared for trial. But judges are supposed to take steps to protect the rights of pro se defendants. The arrest — and the alleged unlawful resisting of arrest — is less than three months old, and I find it highly dubious and suspicious that a judge would deny a continuance to give Shuler more time to seek discovery and prepare.

Third, it's not clear from the reporting how the prosecution proved the elements of the offense. I'm not talking about my standard skepticism of police claims that a suspect improperly resisted. I'm talking about proving that the arrest was lawful in the first place.

Under Alabama law resisting arrest is an attempt to prevent a lawful arrest. Resisting an unlawful arrest is not, as I understand Alabama law, a violation of the resisting arrest statute. To make a lawful arrest under Alabama law, a peace officer must have an arrest warrant, or must have probable cause to believe the suspect committed a felony, or must observe the suspect commit a crime. Shuler apparently argued at trial that the arresting officer didn't have a warrant and didn't observe any crime, and that therefore the arrest was not lawful and Shuler could not have committed the crime of resisting arrest. That's what his wife argues now. Regrettably the news coverage of the brief bench trial doesn't clarify how the prosecution proved (if it did) that the arrest was lawful in the first place.

The district judge imposed a suspended 90-day jail sentence, meaning Shuler is now incarcerated only on the contempt of court.

In short the coverage of the trial leaves me where I was before: questioning whether the Alabama court system is treating Shuler according to the rule of law, but also suspecting that Shuler is doing everything he can to undermine his own best interests.

Shuler Remains Incarcerated On The Contempt of Court Charges

Back in November, the Alabama court issued a permanent injunction against Roger Shuler forbidding him from saying certain things about the plaintiffs in his case and requiring him to remove certain posts from his blog. The court did so after a hearing that it characterized as a "permanent injunction hearing." As I explained back in November I believe that permanent injunction is a prior restraint in violation of the First Amendment; the cases permitting such prior restraint against defamation generally only do so after a full trial before the correct finder of fact (which should be a jury), not after some mere "hearing." There's nothing extraordinary about this case that should permit departure from that precedent. So unless Shuler somehow waived a trial by jury or consented to resolution of the defamation claim at a hearing — something that's not outside the realm of possibility given his erratic behavior — the injunction seems unlawful.

Yet Shuler remains in jail for contempt of court based on his refusal to comply with the injunction. How long can he stay there? That's complicated.

There are two types of contempt consequences: punitive and coercive. Punitive contempt sanctions punish contempt; coercive contempt consequences seek to force someone to do something. Here's how the Supreme Court described the difference, and the different requirements:

"Criminal contempt is a crime in the ordinary sense," Bloom v. Illinois, 391 U.S. 194, 201 (1968), and "criminal penalties may not be imposed on someone who has not been afforded the protections that the Constitution requires of such criminal proceedings." Hicks v. Feiock, 485 U.S. 624, 632 (1988). See In re Bradley, 318 U.S. 50 (1943) (double jeopardy); Cooke v. United States, 267 U.S. 517, 537 (1925) (rights to notice of charges, assistance of counsel, summary process, and to present a defense); Gompers v. Bucks Stove & Range Co., 221 U.S. 418, 444 (1911) (privilege against self incrimination, right to proof beyond a reasonable doubt). For "serious" criminal contempts involving imprisonment of more than six months, these protections include the right to jury trial. Bloom, 391 U. S., at 199; see also Taylor v. Hayes, 418 U.S. 488, 495 (1974). In contrast, civil contempt sanctions, or those penalties designed to compel future compliance with a court order, are considered to be coercive and avoidable through obedience, and thus may be imposed in an ordinary civil proceeding upon notice and an opportunity to be heard. Neither a jury trial nor proof beyond a reasonable doubt is required.2

Shuler's contempt incarceration is nominally coercive rather than punitive — the Alabama court is putatively seeking to force him to comply with a (questionably lawful) order by imprisoning him until he obeys. That doesn't mean it is without limits. For instance, a court can't imprison you to coerce you do to something that's beyond your power. As the Supreme Court of Alabama said:

Because incarceration on a finding of civil contempt is a sanction coercive in nature and is designed to compel compliance with the court's orders, when the punishment can no longer have any coercive effect it becomes punitive and may no longer be imposed. . . . Because it is impossible to coerce that which is beyond a person's power to perform, once the confinement ceases to have any coercive impact, continued imprisonment for civil contempt constitutes a violation of due process.

Here, Shuler argued that he couldn't take down the blog posts from jail. That might have been grounds to release him, had he not also apparently proclaimed in court that he would not comply with the court's order, rendering the inability moot.

So how long can he be kept in jail? In that same decision quoted about, the Supreme Court of Alabama noted that someone subject to coercive contempt imprisonment "conceivably could have remained incarcerated indefinitely." In many American jurisdictions that's correct — indefinite coercive incarceration is a tool that has led to calls for reform. In that Alabama case — which involved a mother refusing to disclose the location of a son suspected of arson — the Supreme Court of Alabama suggested that a court should revisit the issue:

In cases such as this, after the contemnor has been incarcerated for a substantial length of time, the trial judge should bring the contemnor before him for another due process hearing in which he can reevaluate the factual basis of his first adjudication. If he is satisfied that his determination was correct, he should again incarcerate her. If he is of the opinion that she is telling the truth, of course, he should release her.

Hopefully the Alabama court will revisit Shuler's incarceration. At this point Shuler's options to get out of jail are to comply with the (probably unconstitutional) order or appeal it. Given Shuler's behavior in court, I'm skeptical that he will be able to mount a successful appeal. Telling the court that it's a joke and (incorrectly) that it lacks jurisdiction over you is generally not a recipe for appellate success.

We should be able to look critically both at Roger Shuler's behavior and of the system's treatment of him. Notwithstanding overly credulous coverage (like like Salon article that seems to accept Shuler's characterizations of his behavior uncritically and ignore the evidence of his actual behavior), Shuler remains his own worst enemy. His evasion of service, blogging about the same, and nutty-pro-se refusal to acknowledge the court all impede effective defense of his rights. But even nuts and cranks deserve due process of law; depriving them of it threatens to weaken everyone's rights. I'm troubled by how Shuler's civil and criminal cases were handled.

23 Comments

Ten Points About Speech, Ducks, And Flights To Africa

Politics & Current Events

1. The First Amendment protects you from government sanction, either directly (by criminal prosecution) or indirectly (when someone uses the government's laws and the courts to punish you, as in a defamation action). It is currently in vogue to exclaim "NOBODY IS ARGUING OTHERWISE" when someone makes this point. Bullshit. People are consistently saying that private action (like criticism, or firings) violates the First Amendment, either directly or through sloppy implication. Promoting ignorance about our most important rights is a bad thing that we should call out, even when we're currently upset about something. Our rights are under constant assault on multiple fronts, and when we encourage citizens to misunderstand them we make it easier for the government to whittle them away.

2. The phrase "the spirit of the First Amendment" often signals approaching nonsense. So, regrettably, does the phrase "free speech" when uncoupled from constitutional free speech principles. These terms often smuggle unprincipled and internally inconsistent concepts — like the doctrine of the Preferred+ First Speaker. The doctrine of the Preferred First Speaker holds that when Person A speaks, listeners B, C, and D should refrain from their full range of constitutionally protected expression to preserve the ability of Person A to speak without fear of non-governmental consequences that Person A doesn't like. The doctrine of the Preferred First Speaker applies different levels of scrutiny and judgment to the first person who speaks and the second person who reacts to them; it asks "why was it necessary for you to say that" or "what was your motive in saying that" or "did you consider how that would impact someone" to the second person and not the first. It's ultimately incoherent as a theory of freedom of expression.

3. Notwithstanding #2, the concepts of proportionality, community, dialogue, love, charity, grace, empathy, forgiveness, humility, and self-awareness are all values decent people ought to apply to a discussion. They aren't about free speech or the First Amendment; they are about humanity. They are more powerful and convincing when applied consistently — when you do not demand grace of others than you aren't willing to extend yourself. That doesn't happen much.

4. The marketplace of ideas assigns consequences to all participants. That means, for instance, that A&E might suffer market consequences for its behavior. That's a feature, not a bug.

5. A substantial percentage of outrage is bullshit. So is a substantial percentage of outrage about outrage, and so on. Outrage is often about consolidating political power and promoting the view that your political opponents are horrible people. Much of the dialogue about Mr. Robertson being suspended from A&E consists of partisans eager to use the opportunity to argue that (1) people like Mr. Robertson are horrible people or (2) people who criticize Mr. Robertson are horrible people. Outrage is often an occasion for "THIS JUST PROVES WHAT I AM ALWAYS SAYING ABOUT THEM," with the particular case a thin disguise. Yes, when I do it, too.

6. Companies make decisions about hiring and firing based on both money and company culture. Sometimes these decisions are "right" in the sense that the decisions accurately predict what outcome will please the most customers and advertisers and keep revenues up. Sometimes the decisions are New Coke. Often the stated reasons for the decisions are hypocritical bullshit, as in the case of A&E. That's the way it works. Discussions about corporate decisions in the wake of controversy are dominated by (1) people who normally excoriate corporate decision-making but suddenly applaud it when the outcome suits their political beliefs, and (2) people who normally celebrate the market and promote the privilege of corporate decision-making but suddenly find it unpalatable when it produces a result that offends their politics. Some of the people applauding A&E are people who last week were furious at the concept that companies have First Amendment rights. Some of the people trying to conflate A&E and the government are people who last week were vigorously arguing that companies should not have to insure birth control if it offends their religious sensibilities.

7. Bad behavior is not a zero-sum game. If a person is a public relations executive, and identifies themselves as their employer's public relations executive on their Twitter account, and then uses that Twitter account associated with their employer's name in a way you'd use a private account — being edgy, vulgar, saying things that might offend people, and what have you — then they are bad at public relations and doing their employer a disservice. Being a corporation's public relations executive is not a vehicle for self-expression. But if people offer a wildly disproportionate, unmerciful, un-empathetic, graceless, ugly response — like the hashtag #HasJustineLandedYet, salivating over knowing the precise moment someone learns she has been fired for her very stupid behavior — then they are still deplorable. The bad judgment of the PR executive does not diminish the deplorable behavior of the voyeurs, and the deplorable behavior of the voyeurs does not diminish the very bad judgment of the PR executive.

8. The fact that a viewpoint is contained in your holy book does not insulate it from criticism. The fact that a viewpoint is part of a person's faith tradition might lead you to consider proportionality, love, charity, grace, empathy, forgiveness, humility, and self-awareness in framing a response to it. On the other hand, it's reasonable to exercise proportionality, love, charity, grace, empathy, forgiveness, humility, and self-awareness in thinking about how your faith doctrines make other people feel. "You're going to Hell, but you shouldn't be offended when I say so, because it's in my holy book," is not a cunning argument. Also: maybe there's someone who is consistent about all holy books when arguing "you should cut them a break because it's in their holy book," but I personally have not met this person.

9. Most major American political groups participate in the politics of outrage and the tactic of "look how this person represents Their Side." Maybe there's someone capable of a principled empirical analysis of who does it more, but I doubt it. I don't trust your gut about who does it more, and you shouldn't trust mine.

10. You have no right to be free of offense. You also have no right to be free of people telling you that you are offensive. You only have a right to govern how you will react.

I'm on hiatus. I hope to be back in January.

180 Comments

Eventually That Animal Is Going To Turn On You, And You're Going To End Up The Victim!

Law

You have 13 minutes to spare. Do yourself a favor. Waste 13 minutes with Harvey Silverglate.

Many people write for this blog. We disagree about a great many things. But we all agree, I dare say that if this blog has a fundamental idea, it's that eventually, that animal is going to turn on you.

37 Comments

I Smell French Blood. Also, Croat.

Law

I smell French blood. Croat blood too. It smells like thuggery, cowardice, officiousness, and petty and insipid bureaucratic tyranny.

Okay. I can't actually smell anybody's blood. That's silly. But I see and hear French cretinism, leavened by Croat entitlement.

The occasion is French and Croat pestering of professional mumbler Bob Dylan. Dylan, interviewed by Rolling Stone, offered some thoughts about race in America:

This country is just too fucked up about color. It's a distraction. People at each other's throats just because they are of a different color. It's the height of insanity, and it will hold any nation back – or any neighborhood back. Or any anything back. Blacks know that some whites didn't want to give up slavery – that if they had their way, they would still be under the yoke, and they can't pretend they don't know that. If you got a slave master or Klan in your blood, blacks can sense that. That stuff lingers to this day. Just like Jews can sense Nazi blood and the Serbs can sense Croatian blood.

Dylan is an American. He was talking about race and culture in America. He was speaking to an American publication. He was being interviewed in Santa Monica, California, which — notwithstanding some French elements — is in America.

Yet French magistrates — acting upon the demands of something called the Council of Croats — have brought "preliminary charges" against Dylan for "public insult and inciting hate" in France:

French magistrates have pressed preliminary charges against Bob Dylan, a poster child of the American civil-rights movement, for allegedly violating antidiscrimination laws in a 2012 magazine interview in which he appears to compare Croatians to Nazis and the Ku Klux Klan.

The probe is a turn of fortune for the iconic American singer in France, where just three weeks ago he was awarded the country's highest cultural award, the Légion d'honneur.

Preliminary charges of "public insult and inciting hate" were filed against Mr. Dylan on Nov. 11, a spokeswoman for the Paris prosecutor's office said Tuesday. That was two days before he was honored by France's culture minister, who called the singer "a hero for young people hungry for justice and independence."

Dylan probably faces a monetary fine, like other celebrities pestered by the French for Wrongthink. The Croats don't want Dylan jailed. They only want to use the French government to coerce a sign of submission from him:

If he apologies we will withdraw the suit,” Ivan Jurasinovic told the Telegraph. “The aim is not to hurt anyone but to hopefully have him say that he didn’t mean what he said and that he regrets it.”

This Croat organization is angry that Dylan associated all Croats with genocide and atrocities. But some Croats are undeniably guilty of atrocities. You can — and should — conclude that not all Croats are morally responsible for the attrocities of some Croats. But that's a rhetorical point, not — at least in a civilized society – a legal limit on speech. If Ivan Jurasinovic doesn't want Croats associated with atrocities and genocide, then he's a damn fool to abuse the mechanism of the state to charge critics with crimes to silence them, because that's how the perpetrators of historical atrocities act. Ivan Jurasinovic's message is "some of my people may have committed genocide but I'm going to have you prosecuted by the government if you talk about it in a way I don't like." Does that sentiment flatter the Croats?

This use of French hate-speech law to police historical and social commentary should not surprise us. "Hate speech" laws will generally be used as weapons in political infighting. They will generally be used to pursue ancient grievances and to punish others for pursuing them. They will generally be used to batter opposing sides in religious and ethnic disputes. That's why, as I've shown in my continuing series on blasphemy law, laws protecting group feelings are often used to persecute minorities and the powerless. Bob Dylan has money, and therefore freedom and power; he's not powerless. But in a system in which the state will use unprincipled force to protect the feelings of a vast array of squabbling interest groups, that power doesn't buy him much other than the ability to pay the arbitrary fine when the state imposes it. Moreover, his prosecution sends a powerful message to the powerless: shut up about grievance-mongering groups, because you might not be able to afford this.

Dylan's rhetorical conceit that people can smell tainted blood is silly and obnoxious. The remedy for that amongst civilized people is to call Bob Dylan silly and obnoxious, to write about it, to speak about it, and to buy some other mumbler's records. Civilized people shouldn't plead for the machinery of the state to grind their rhetorical enemies.

Bob Dylan could yield to French state-sponsored ethnic coercion and apologize to Croats for a rhetorical fillip. He could go to court and defend free speech and ultimately pay the fine when he loses because freedom of expression is not a defense in France. But he could also really impress me: he could tell the French, and the Croats, to fuck right off. He could return — postage due, please — the Légion d'honneur, and tell the French he doesn't want the recognition of thought-policing twits. He could stop traveling to France. He could encourage his artistic friends to stop traveling to France and performing there. He could inspire a new free speech movement amongst the artistic elite. Imagine the power of him telling actors and artists and musicians this: "why do you want to do business with a country that thinks it should be able to launch official proceedings against you for offering your opinion in an interview thousands of miles away in Santa Monica because a mouthpiece for an interest group didn't like what you said?"

After all, if the French want to start asserting aggressive extra-territorial jurisdiction, they should do it like Americans, by killing people with drones and kidnapping them, holding them without due process, and occasionally torturing them. Who would complain about that?

89 Comments

Shore Dreams Vacation Rentals Sees KlearGear Catastrophe, Says "I Gotta Get Me Some Of That"

Law

The clause at issue in this post has been removed. See last update.

Most people who have read about KlearGear's repulsive non-disparagement clause are shocked and appalled. The fundamental concept — that a company would demand that customers promise not to criticize it as the price of doing business — strikes us as thuggish and un-American.

But KlearGear is not alone in foisting such a clause on its customers.

Meet Shore Dreams Vacation Rentals, which offers rentals in Florida. Shore Dreams has a thoroughly sleazy non-disparagement clause:

Certain websites allow reviews that are unchecked with regard to reasonable sentiment. Guest agrees that even minor unreasonable negative sentiment can unjustly cause damages to owner's future business. Therefore, Guest accepts and is hereby notified that Shore Dreams Vacation Rentals, LLC does not participate in reviews from websites that are not owned or controlled by Shore Dreams Vacation Rentals, LLC and the business transaction between all parties should remain private. This Paragraph is a material provision this agreement. All communications related to this transaction shall remain private. Specifically, Guest and invitees agree not to criticize, make any statement which disparages or post any review on any website unless requested in writing by the Shore Dreams Vacation Rentals, LLC or agent. If any review is posted by Guest or invitee thereof, and found to contain unreasonable negative sentiment in the sole opinion of the Shore Dreams Vacation Rentals, LLC and is not removed within 72 hours (the Review), Guest agrees that a copy of this rental agreement shall serve as Guest's full authorization to request and oblige the third party or website hosting or displaying the Review to remove it promptly upon request by Shore Dreams Vacation Rentals, LLC. Failure to remove the Review will be considered a breach of this Agreement, and Shore Dreams Vacation Rentals, LLC will consider this act to have irreparably harmed by loss of business and goodwill due to violation of this provision. In this event, Shore Dreams Vacation Rentals, LLC will immediately charge Guest a fine of $500 upon sent email notice, which is refundable at compliance of this agreement, and seek damages of up to $10,000 from Guest and Guest agrees to pay all such damages requested by Shore Dreams Vacation Rentals, LLC upon written demand. Guest will pay any additional legal fees necessary to enforce demand should Guest not comply.

So: that means that (1) you can't criticize Shore Dreams without their written permission, (2) if you do you agree in advance that the criticism must be taken down upon their demand, if they decide they feel it is "unreasonable," (3) if you do you owe them a fine of $500, and (4) they can sue and you have to pay them up to $10,000 and their legal fees.

Apparently CNN did a story about this, which I haven't been able to find online. Shore Dreams reacted angrily and rather dishonestly:

The recent story as reported by Pamela Brown on CNN does not reflect our policy accurately and as we explained to Ms. Brown, we strive to encourage our guests to communicate any issues or requests while they are staying with us. In the past we have had a some guests try to demand compensation or refunds after departure by threatening a bad review, while not providing an opportunity for management or the owners to fix any issues while they were in the unit. We don't participate in any of these threats that are unreasonable and untruthful, therefore our policy was implemented to include potential legal fees in the event of a libel lawsuit and any fines reported were grossly exaggerated by CNN. We have many reviews on our website and vacation rental listing sites both positive as well as negative and encourage feedback from all of our guests via online surveys, our mobile app and vacation rental listing reviews. Again, we appreciate your concerns and hope you understand our side of the story as well.

That's their explanation of the non-disparagement clause. But that's not what the non-disparagement clause says. It doesn't just provide for attorney fees in the case of a libel lawsuit — it also has a penalty provision and a substantive promise not to criticize Shore Dreams without their permission. Oddly Shore Dreams posts this explanation right next to the non-disparagement clause that it misrepresents.

I haven't found any indications that Shore Dreams has used its clause the way KlearGear did attack the credit score of a critic. But the potential to do so is there.

Why would you do business with a company that demands that you refrain from criticizing it except through its chosen channels?

Why would you do business with a company that thinks you should pay a $500 fine if you criticize it?

Why would you do business with a company that thinks you should agree in writing that any criticism of it that it doesn't control should be taken down?

Why would you do business with a company that hides ridiculously one-sided non-disparagement clauses in its terms and conditions?

If a company feels entitled to be free of criticism it doesn't control, do you think you can trust that company to provide quality services and treat you fairly and honestly as a customer?

If a company says "you can't criticize us unless we give you permission, and you have to pay a fine if you do, and agree in advance to take down any reviews we don't like," does that company share your values? Does it have values that are worthy of respect? How do you feel about a company like that getting your money?

So. What can you do about companies like this? You could read the terms and conditions of the agreements you accept when you do business with companies. Unfortunately, many people find that too onerous, particularly when the offending legal jargon is buried in lengthy boilerplate. Here's another thing you can do: when a company like KlearGear or Shore Dreams Vacation Rentals hides a thoroughly sleazy and despicable non-disparagement clause it its boilerplate, you can help spread the word about it to warn people. Shore Dreams Vacation Rentals and the people behind it should face the natural and probable consequences of their behavior: contempt and infamy.

Hat tip to Simon.

Edited to add: Via Adam Steinbaugh, here's Christo Properties in Seattle, another home-rental place with a sleazy non-disparagement clause.

NON-DISPARAGEMENT

Tenant agrees not to post any negative reviews referencing Christo or Christo rental property nor use the threat of negative reviews as a tool for negotiation and/or extortion. The definition of negative shall be determined solely by Christo. If tenant does post a negative review of Christo or Christo rental property, tenant shall have 48 hours subsequent to notification by Christo to remove the review. Failure to timely remove the negative review shall result in tenant being liable to Christo for $178.14 per day the review is viewable to the public from the date of notification. Tenant agrees that Christo may charge tenant’s on-file credit card for any fees in this clause.

Because Christo believes that honest reviews are an important part of the vacation rental experience, If contested, tenant may post any type of unbiased internet review after being found true and of fact by any court of competent jurisdiction covered within the geographical area of this agreement.

How generous of Christo to say that Americans may express themselves after a court says they can.

Apparently this is a thing now with some vacation rentals. Seems like a good way to address it would be to start a "bad citizens running bad businesses" list showing the places that use such clauses.

Edited to add: Shore Dreams has removed the non-disparagement clause. In an email to me that she asked me to publish, the manager said this:

Hi Ken, I wanted to email you and let you know that I appreciate your forum as an important function of free speech and recognize that our clause was very restrictive; however it is a very common inclusion in agreements these days, be it right or wrong. Meanwhile I have removed the clause from our rental agreement. I am not an attorney, but a business owner and real estate investor and have worked had to make my business grow in a down real estate market as well as the economic effects of the oil spill. I run the company by myself, which is mainly due to the hardships with real estate and my need to climb out of the economic hole I was in. CNN made us look awful and like we are this huge BIG BUSINESS that doesn’t care, but we do. I work 7 days a week to make this work and have many happy guests over 10 years and over 7000 reservations. We have great approval ratings and reviews on Tripadvisor, Flipkey, VRBO, HomeAway and an A+ rating on the BBB. We are one of the best pet friendly rental companies in the Southeast, which is hard to find. While your forum is great, the emails I am getting are full of profanity and degrading comments. I hope that you will update your column and let them know that we are sorry and have removed the clause and encourage reviews and feedback always. Thanks again for your consideration in advance. Renata, Owner SDVR

Though it was a bad decision to include the clause, I think they've done the right thing by removing it, and should get credit for responding to criticism. We should continue to identify and criticize lawyers and others who encourage such clauses, who ultimately may be harming the people they advise.

71 Comments

D.C. Circuit: First Amendment Trumps Birthers, Stupid People, Walruses

Law

The United States Court of Appeal for the District of Columbia Circuit today handed a victory to Esquire Magazine and a bitter defeat to Joseph Farah of WorldNet Daily and author Jerome Corsi, who are widely known as critics of the Obama Administration, conspiracy theorists, birthers, and repeat sexual abusers of walruses.

Equire's victory, and Farah's and Corsi's salty defeat, ended a defamation lawsuit Farah and Corsi brought against over a satirical article lampooning Corsi's book "Where's the Birth Certificate? The Case that Barack Obama is not Eligible to be President, With Comments On How Walruses," which Farah was publishing and distributing to his (for want of a better word) readers. The article portrayed Farah and Corsi deciding to withdraw and pulp the birther expose on the grounds of inaccuracy:

In an exclusive interview, a reflective Farah, who wrote the book's foreword and also published Corsi's earlier best-selling work, Unfit for Command: Swift Boat Veterans Speak out Against John Kerry and Capricorn One: NASA, JFK, and the Great "Moon Landing" Cover-Up, said that after much serious reflection, he could not go forward with the project. "I believe with all my heart that Barack Obama is destroying this country, and I will continue to stand against his administration at every turn, but in light of recent events, this book has become problematic, and contains what I now believe to be factual inaccuracies," he said this morning. "I cannot in good conscience publish it and expect anyone to believe it."

In an odd detour, Esquire's article also reported upon a 2010 incident in which Farah and Corsi, visiting an aquarium during a World Net Daily team-building exercise, rushed the stage during a children's show and began sexually abusing a performing walrus to the gasps and horrified screams of onlookers. "TAKE THAT KENYAN FASCIST," Farah and Corsi reputedly screamed, although the aquarium's presenter had specified that the walrus was indigenous to the Pacific. Esquire writer Mark Warren speculated that the outburst was spurred by the revelation that the walrus was named "Barry."

Although Esquire updated the story to explain that it was satirical, at least as to the book, Farah and Corsi sued, claiming that many booksellers and retailers had taken the story literally and that their sales had suffered as a result and that a recent excursion to Sea World had been "tense." The federal trial court granted Esquire's motion to dismiss Farah's and Corsi's complaint, finding that the article was clearly satirical — and therefore not a statement of fact subject to defamation analysis — and that the court could take judicial notice under Federal Rule of Evidence 201 that Farah and Corsi were in fact sexual abusers of walruses because, in the words of that rule, that fact "can be accurately and readily determined from sources whose accuracy cannot reasonably be questioned."

Today the D.C. Circuit affirmed that decision. The court explained that only false facts can be defamatory under the First Amendment. Whether satire can be taken as a statement of fact — as opposed to ridicule — must be determined based on how a reasonable reader familiar with the full context would take it:

To determine whether Esquire’s statements could reasonably be understood as stating or implying actual facts about Farah and Corsi and, if so, whether those statements were verifiable and were reasonably capable of defamatory meaning, the “publication must be taken as a whole, and in the sense in
which it would be understood by the readers to whom it was addressed.” Afro-American Publ’g Co. v. Jaffe, 366 F.2d 649, 655 (D.C. Cir. 1966) (en banc). “[T]he First Amendment demands” that the court assess the disputed statements “in their proper context.” Weyrich, 235 F.3d at 625. Context is critical because “it is in part the settings of the speech in question that makes their . . . nature apparent, and which helps determine the way in which the intended audience will receive them.” Moldea II, 22 F.3d at 314. “Context” includes not only the immediate context of the disputed statements, but also the type of publication, the genre of writing, and the publication’s history of similar works. See Letter Carriers, 418 U.S. at 284–86;
Moldea II, 22 F.3d at 314–15.

Farah and Corsi argued that the story should not be treated as satirical because (1) some people took it literally, and (2) it did not state that it was satire until Esquire supplemented it, and (3) it did not include overt signs of satire. The court disagreed, finding that explicit disclaimers of satire were not required, and that circumstances — including Farah's and Corsi's reputation as birthers and notorious walrus-fuckers — made the satirical nature of the piece adequately clear to someone familiar with them:

With that baseline of knowledge, reasonable readers of “The Politics Blog” would recognize the prominent indicia of satire in the Warren article. Most notably, the very substance of the story would alert the reasonable reader to the possibility that the post was satirical. The essence of the fictitious story was that Farah, a self-described leader (along with Corsi) of the movement to challenge President Obama’s eligibility to serve, see Appellants’ Br. 31, had suddenly and without any warning
decided to recall and “pulp” the Corsi book the very day after it was released. The supposed basis for this decision was President Obama’s earlier release of his long-form birth certificate; yet that release occurred three weeks before Corsi’s book was published, and, as Farah acknowledges, he and Corsi remained (and still remain) committed to the book even after that event. See Compl. ¶¶ 11, 17. After the release of the birth certificate, Farah appeared on MSNBC and published more than 40 articles on WorldNetDaily continuing to promote the book. See Findikyan Decl. Exs. 7, 21, 22–25; Farah, 863 F. Supp.2d at 32. The day of the Corsi book’s release — the day before Esquire posted its fictitious story — WorldNetDaily announced the publication on its website with an article entitled, “It’s out! The book that proves Obama’s ineligible: Today’s the day Corsi is unleashed to tell all about that ‘birth certificate.’”
Findikyan Decl. Ex. 26. It is inconceivable that Farah would reverse course so abruptly, as Esquire’s fictitious story claimed. Readers of “The Politics Blog” would have recognized that the article was “reporting” events and statements that were totally inconsistent with Farah’s and Corsi’s well-publicized views, and could not reasonably have taken the story literally.

The court also noted that satire does not lose its protection just because some people take it literally; rather, that is the nature of satire:

But it is the nature of satire that not everyone “gets it” immediately. For example, when Daniel Defoe first published The Shortest Way with the Dissenters, an anonymous satirical pamphlet against religious persecution, it was initially welcomed by the church establishment Defoe sought to ridicule. See JAMES SUTHERLAND,ENGLISH SATIRE 83–84 (1958). Similarly, Benjamin Franklin’s “Speech of Miss Polly Baker,” a fictitious news story mocking New England’s harsh treatment of unwed mothers, was widely republished in both England and the United States as actual news. See MAX HALL, BENJAMIN FRANKLIN &
POLLY BAKER:THE HISTORY OF A LITERARY DECEPTION 33–35, 87–88 (1960).

First Amendment rights, in other words, are limited neither by the skill of the writer nor the stupidity of a particular audience.

In short, the D.C. Circuit agreed with the trial court that because reasonable readers could not take the Esquire article about stating facts about Corsi's and Farah's book, the article could by definition not be defamatory. The Court made shorter work of the walrus issue, terming it "regrettable" and "more suited for state court, or possibly for some sort of televised court." Ultimately the court rejected Corsi's and Farah's walrus-related claims, ruling that even if the trial court erred in taking judicial notice of their odobenusophile habits, the evidence was sufficient to support the judgment:

Appellants take issue with the portion of the Esquire article suggesting that they were "repeat" abusers of walruses. The trial court did not err here. Even if the evidence of the San Diego Incident were insufficient, the 2010 Aquarium Incident technically demonstrates repeated conduct, as the testimony was that Corsi and Farah took a hiatus mid-attack to purchase Dippin' Dots from a vendor. (RT 124.) Moreover, Farah's objection that there was no evidence that he was attempting to cause sexual gratification to the walrus — and, indeed, clear and convincing evidence that he lacked the capacity to do so — is immaterial, as that is not an element of the offense under the relevant animal cruelty statute. We will not address Corsi's and Farah's claim that the walrus in the 2010 Aquarium Incident was actually a seal "foisted upon the public in a deception of historical proportions," as they did not brief that issue below. Finally, we note that damages are an element of defamation. Even if Farah and Corsi had shown that they were falsely accused of sexually assaulting a walrus — and they have not — they have not presented evidence that being associated with such conduct would harm their reputation amongst their audience of World Net Daily Readers. Indeed, Esquire offered evidence to the contrary. See Trial Record at 350 (Federal complaint by O. Taitz asserting that walrus was part of civil rights conspiracy against her); 387 (Tweet by T. Kincannon asserting walrus was sexually promiscuous and part of "thug culture"), 411 (J. Taranto column calling for walrus to be deported).

Corsi's and Farah's defamation claim was fundamentally a SLAPP suit, and it's a good thing that it failed. Courts should protect satire broadly.

Hat tip (except for the walrus part) to Alison Frankel.

UPDATED TO ADD:

World Net Daily has a very angry post up about this decision, followed by comments that are, to the extent I could follow them, also very angry. They wouldn't approve my comment posting a link to this post. So I had to send my message by other methods:

Ken

When will courts protect your rights?
As long as Obama is in office, not any time soon.
Lamentably he controls the courts through his sycophants.
Really it's time for someone to do something about it.
Unfortunately not enough people grasp the problem.
Soon, though, they will.

Strong Americans will speak up and take action.
Everyone will take note.
X-men will seem weak compared to an informed American electorate!

88 Comments

University of Texas-Austin And Some Students Choose Censorship Over More Speech

Law

A college campus is a perfect place for more speech leading to social consequences. Lorenzo Garcia of the University of Texas-Austin Young Conservatives of Texas learned that quickly when he and his organization promoted a "catch an illegal immigrant" event at UT-Austin:

The "game" goes like this. On Wednesday, volunteers will walk around the UT campus with tags that say "illegal immigrant." If a UT student catches one of the bozos, they can bring them back for a $25 gift card.

Mr. Garcia, in common with people do do such things, says he's just trying to get a discussion started:

Lorenzo Garcia, chairman of UT's YCT chapter, said Wednesday's event is not intended to instill anger or promote prejudice, but instead to educate college students about a serious issue.

It's intended to “spark a campus-wide discussion about the issue of illegal immigration and how if affects our everyday lives,” he said in a statement.

Mr. Garcia did start a discussion, though perhaps not the one he wanted. He and the Young Conservatives of Texas were subjected to widespread condemnation and ridicule both locally and nationally. Politicians — including conservative politicians — distanced themselves. Garcia thinks people are just mean:

He nonetheless took issue with the backlash he received on Monday and said he hoped the controversy would stir debate on the issue of immigration.

"I have been called an 'Uncle Tom.' I have received emails and comments via social media filled with obscenity," Garcia said in the statement. "The reactions of some who claim that YCT is creating a demeaning or degrading environment on campus have been truly disgraceful."

If the matter had stopped there, it would be a free speech success story: group engages in speech that others find offensive, others exercise their right to response speech, marketplace of ideas distributes social consequences for free expression.

But it didn't stop there. As the FIRE points out, threats of official censorship played a role.

It's completely fine for the administration of UT-Austin to say that Garcia and the YCT are being assholes and that UT-Austin doesn't share their views. As I've argued before that's the right way for a university to respond. But the UT-Austin administration both condemned the speech and ominously suggested that the speech violated the university's honor code, which can trigger discipline up to and including expulsion. As The FIRE points out, that's a threat of official retaliation against protected speech:

UT-Austin had no business making thinly-veiled (arguably, not veiled at all) threats against students planning to engage in political theater. Such threats have detrimental effects on the community’s willingness to debate, curtail the free exchange of ideas on campus, and seriously risk chilling protected speech.

Garcia and the YCT caved:

In a statement, Garcia partially blamed a statement issued by UT President Bill Powers and Vice President of Diversity and Community Engagement Dr. Gregory Vincent for the cancellation. Garcia said, "I spoke with our chapter's members, and they are both concerned that the university will retaliate against them, and that the protest against the event could create a safety issue for our volunteers."

As the FIRE also points out, the reaction of some students is deeply disappointing. Some are demanding that UT-Austin revoke recognition of YCT for its speech:

While we, the undersigned, acknowledge and respect the university's role in allowing a diverse range of political organizations and demonstrations under the banner of "free speech", the University has an obligation to its students to roundly denounce harmful, alienating narratives and, in doing so, make the University a safe environment to historically oppressed groups. The YCT have routinely hidden behind the University's adherence to "free speech" as a means of attacking, intimidating, and degrading non-white students on campus. They have a documented history of attacking specific racial groups, playing on xenophobic hysteria, and being, as Faulkner said, "inhumane". Therefor, we formally request that the Dean of Students revoke the YCT's status as an officially registered student organization. Should the university fail revoke the YCT's status as an officially registered student organization, it will be making the implicit claim that not only are outlandishly racist events ignored by the tower, but that all students of color are fair targets for future "hunts".

I find Lorenzo Garcia and the YCT to be mundanely douchey. But their belabored trolling can be effectively addressed by the marketplace of ideas. Their proposed game has led to internet-infamy, an outpouring of support for the people they targeted, and a surge in discussion of political ideas opposed to them, and will probably impact their social interactions on campus for the foreseeable future. Speech has consequences.

But the sentiments of the students who want to invoke the power of the state to censor Garcia and the YCT are disturbing. Imagine a nation of voters and leaders like that — people who think that free expression is something to be put in scare quotes, who think that upsetting speech should be addressed by government mechanisms, who think that the purpose of the state is to make people feel good about themselves by stifling ugliness and stopping people from being "inhumane."

Lorenzo Garcia, YCT, and their ilk are losing. The response to their speech shows it. I'm not afraid of them. But I'm afraid of the America imagined by the anti-YCT petitioners. What powers will state administrators in that America crave, and what powers will those students — trained to think that they are entitled to be free of offense or upset — give them?

138 Comments

WordPress Goes On The Offensive Against DMCA-Abusers

Law

As I mentioned in my post earlier today about the demon-haunted world of Gordon Klingenshmitt, people who want to write about controversial subjects online face a persistent problem: dishonest, thin-skinned, censorious people who are willing to abuse the Digital Millennium Copyright Act – or DMCA — to force hosts and writing platforms to take down content they don't like. We've seen it happen with a glassy-tongued poet and an over-sensitive lighting company that doesn't like negative reviews and even Ecuador, and we've even been the subject of a bogus DMCA demand ourselves filed by a wire-fraudster extortionist.

The DMCA does have a provision allowing a cause of action for bogus takedown demands, under Section 512(f):

(f) Misrepresentations.— Any person who knowingly materially misrepresents under this section—

(1) that material or activity is infringing, or

(2) that material or activity was removed or disabled by mistake or misidentification,

shall be liable for any damages, including costs and attorneys’ fees, incurred by the alleged infringer, by any copyright owner or copyright owner’s authorized licensee, or by a service provider, who is injured by such misrepresentation, as the result of the service provider relying upon such misrepresentation in removing or disabling access to the material or activity claimed to be infringing, or in replacing the removed material or ceasing to disable access to it.

Unfortunately, courts have been interpreting Section 512(f) narrowly to apply only to false statements of ownership of the copyright, as opposed to false statements that the targeted material is infringing. In other words, courts have often refused to use this section to impose consequences on censorious liars or fools who claim copyright infringement when faced with parody, satire, criticism, and other stuff clearly protected by fair use and the First Amendment. The Ninth Circuit, for instance, requires plaintiff citing this section to show that the DMCA takedown was subjectively, knowingly false — even if the person sending the takedown was objectively unreasonable and even if they didn't conduct a reasonable investigation. The music and movie industries would like to go further — they want to argue that the only thing you need to be truthful about in a DMCA takedown demand is your ownership of the copyrighted work, not the infringing nature of the target. The music and movie industry like that rule because (1) they don't want to spend money to hire competent or honest people to write DMCA demands for them, and (2) they are perfectly happy to deter satire, criticism, parody, reviews, and discussions if it makes it easier for them to fight the Great War on Piracy. That's why when the MPAA or RIAA complains their industries are dying, I'm tempted to ask how soon I can piss on the grave.

But even under the entertainment-industry-castrated version of Section 512(f), there are still opportunities to stomp censors. Today WordPress announced that it has filed federal lawsuits against two abusers of the DMCA. One defendant is none other than Nick Steiner, the head twerp of StraightPride, which resorted to a bogus DMCA complaint to make a false claim of copyright as to an interview to which it consented. The other defendant filed false DMCA demands against our friends at Retraction Watch, which has been subjected to numerous threats before. The Retraction Watch DMCA abuse was on behalf of the fake-Rhodes-scholar Anil Potti, previous subject of Patrick's wrath.

These suits fit into even the narrowed interpretation of Section 512(f) because both involve not just false statements about whether the targeted items are infringing, but false statements about the existence or ownership of the copyright in the first instance.

These will be lawsuits to watch. Mike Masnick, who has done good work on 512(f) issues, is on the case and his coverage will be worth watching. The Technology & Marketing Law Blog is another great source for Section 512(f) analysis.

18 Comments

Frothing Nutjob Gordon Klingenschmitt, His Censorship Is My Censorship Too

Politics & Current Events

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?

57 Comments

Alabama Court Releases Highly Problematical Written Permanent Injunction Against Roger Shuler

Law

I've now collected all my posts about Roger Shuler — the "Legal Schnauzer" blogger subjected to an unconstitutional preliminary injunction prohibiting him from blogging — under a "Roger Shuler" tag. Those posts are the prologue to this one.

Shuler's web site has now published Alabama Circuit Judge Claude D. Neilson's permanent injunction against him. I've uploaded it here.

Here are some significant things about the permanent injunction:

  • The permanent injunction only prohibits specified statements by Shuler, and eliminates the vague and ambiguous language of the preliminary injunction that prohibited "any defamatory statement about Petitioners, including, but not limited to" specified statements.  That's the sort of vague language that courts have used as one basis to strike down prior restraints on speech. Judge Neilson has therefore cured one problem with the preliminary injunction.
  • However, the permanent injunction does not include any substantive discussion of the prior restraint issue.  Judge Neilson, by approving what appears to be a proposed order submitted by the plaintiff, dismisses the concept of prior restraint with scare quotes in the first footnote, attributing the concept to Mr. Shuler and implying it is a silly argument.  It isn't.  Though the order cites authority for the correct proposition that defamation is not protected by the First Amendment, it includes no analysis whatsoever of the wall of authority on the subject of prior restraint of allegedly defamatory speech.  I find that utterly remarkable — in fact, shocking — from a judicial officer.
  • The proposed order justifies the injunction by saying that Mr. Riley and Ms. Duke are in professions that can be harmed by defamation, and repeats the frankly ridiculous argument that they are put in physical danger by defamation associating them with abortion.  However, the order does not try to establish what is "exceptional" about this case justifying prior restraint, and does not succeed in making any such showing.  Near v. Minnesota, 283 U.S. 697, 716 (1931). Many people are in professions where reputation is important; this order doesn't establish that these plaintiffs are unusually situated.
  • It appears that once again Judge Neilson executed a proposed order provided by counsel for plaintiff Mr. Riley.  That is common.  However, when a motion presents such a patent constitutional issue, judges usually exercise some sort of editing power over a proposed order to ensure that it addresses the point.  Here Judge Neilson didn't.  Again, I find that remarkable.
  • The court repeats Mr. Riley's counsel's claim that Mr. Shuler called the court a "joke," claimed it lacked jurisdiction, and refused to participate in the permanent injunction hearing.  As I said in my last post, that's a damnfool thing to do that may deprive Shuler of substantive appellate review.
  • The court ordered Shuler to remove the specified statements from the blog Legal Schnauzer and made it clear that he will remain in jail for contempt until he does so.   (The legality of indefinite contempt incarceration is a subject for another post).
  • The court awarded around $34,000 in fees and costs to the petitioners against Shuler.
  • The court issued the order against Carol Shuler, Mr. Shuler's wife, as well as Shuler.  Carol Shuler has been updating the blog.  This raises the possibility that she will also be held in contempt if she fails to take posts down.
  • The court reversed its prior order and unsealed the documents from the case.

The written order doesn't change my analysis from earleir this week. The fact that the court calls this a permanent injunction rather than a preliminary injunction doesn't make it constitutional; I think it is still unconstitutional prior restraint because (1) the court issued it without a trial, and (2) there's nothing exceptional about the case permitting a rare exception to the prior restraint doctrine. However, Roger Shuler continues to be the biggest impediment to vindication of Roger Shuler's rights. His behavior is calculated to court martyrdom, not to protect his First Amendment rights. That's a shame.

I continue to doubt Shuler's allegations, in part because of the way Shuler made them, the way he evaded service, and the way he has conducted himself in the case. But the remedy for defamation should be a damages award and order after a fair trial, not unconstitutional prior restraint. The way the Alabama court has conducted this case doesn't make me think that Shuler's allegations about Riley are true, but it does make me think that Riley's power and prestige played an impermissible role, as Shuler argues.

18 Comments

Good News From The United Kingdom: Lesley Kemp Prevails Against Censorious Thuggery

Law

Back in April I wrote about Lesley Kemp, a transcriber who was sued for defamation in England when she complained on Twitter about delays in being paid by Resolution Productions and its principal Kirby Kearns. When I wrote Resolution Productions seeking comment, I received a threatening-to-the-best-of-his-limited-abilities email from Barjinder Sahota of Sahota Solicitors who demanded that I "resist and desist" writing bad things about his clients. I responded like me.

Good news today: Ms. Kemp has won and the plaintiff Kirby Kearns has abandoned the field. Kemp was tremendously fortunate to secure pro bono help from Robert Dougans of Bryan Cave and no-win-no-fee help from Jonathan Price of Ely Place Chambers, with support from the Libel Reform Campaign and from censorious-thuggery survivor Simon Singh. Kemp reports that her team backed Kirby Kearns and Sahota off with a clever gambit: since Kirby Kearns is a resident of Qatar, they asked the English court to force him to post a bond to secure costs, which he was unwilling to do:

As Mr Kearns is resident in Qatar, my solicitors applied for an order requiring Mr Kearns to pay money into court as security for my costs of defending the claim. Despite his solicitors threatening me with indemnity costs orders for making this application and saying it was unfounded (although never explaining why), Mr Kearns on 18 November 2013 decided to 'discontinue the claim' 2 weeks from when my application was going to be heard. Mr Kearns explains this decision as being based on being unwilling to pay security for my costs.

Ms. Kemp was unfortunate to be menaced by a such a lawsuit, and unfortunate to be subjected to it in England (which, despite the best efforts of reformers, is still a haven for libel tourism thanks to its pro-plaintiff libel laws), but she's extremely lucky to get such an able team to help her without cost to her. Freedom of expression depends not just on laws and efforts to reform them, but on principled individuals like Mr. Dougans and Mr. Price donating their skills and standing up to contemptible censorship. Freedom of expression also depends upon citizens inflicting social consequences upon the plaintiffs who bring suits like this and the lawyers who represent them. People who bully should be treated like bullies.

Mr. Sahota never wrote me again after my reply to his threat to me. If anyone reading this has been threatened with a defamation suit by Mr. Sahota or his firm, I have been asked to convey that there are solicitors in England who stand ready to represent you for free or on a no-win-no-fee basis, depending on the case.

Stand up against censorship.

Edited to add: Mr. Kearns has released a public statement, which I have uploaded here for your review of his version of events.

31 Comments
« Older Posts
Newer Posts »