American social and political culture has shifted rather abruptly towards support for same-sex marriage. Many opponents of same-sex marriage have shifted their rhetoric with it. They have changed focus from increasingly unpersuasive primary arguments (such as appeals to religious norms) to arguments that same sex marriage will have unintended consequences threatening the rights of others. They argue that legalizing same-sex marriage will have the effect of oppressing people who wish to exercise First Amendment rights to dissent from it, whether by speech or association.

Here's the problem: in doing so, some opponents of same sex marriage ("SSM" from here on out, because I am lazy) are promoting ignorance and confusion about basic rights by conflating government action, private action, suppression, and response speech. Ignorance — and I know I am going out on a limb here — is bad.

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This week, the administrators of Central New Mexico Community College, a public institution in Albuquerque, shut down until further notice the school's student-run award-winning newspaper, the CNM Chronicle. Administrators also attempted to confiscate copies of a run of the paper. The reason? The administration felt that the paper's sex issue was "offensive and not appropriate for the educational mission of CNM." The paper's editor-in-chief reported being ordered into the Dean's office and told the paper was "raunchy."

What went through the minds of the school's "Executive Team" and its Dean of Students, Rudy Garcia? One can only imagine . . . .

THE SCENE: The Office of the Dean at Central New Mexico Community College

THE TIME: Early evening.

THE CAST: RUDY GARCIA, Dean of Students, VERONICA JONES, his executive assistant, and ROGER TRUMAN, his deputy.

THE DEAN ENTERS, AGITATED, BRANDISHING A COPY OF THE CNM CHRONICLE.

DEAN: More press calls. More emails. More inquiries. I tell you, people in this country just aren't used to firm leadership.

VERONICA: Yes, sir.

ROGER: They're certainly unused to leadership of this sort, sir.

DEAN: The security staff has confiscated most of the copies of this filth, I think. [HE SMACKS THE COPY OF THE CHRONICLE AGAINST THE DESK IN DISGUST.] I can't believe they thought they could get away with this.

VERONICA: No, sir.

DEAN: I mean, I keep my distance from such things, but I suspect those are prophylactics on this front cover. And dog chew toys. What do dog chew toys have to do with anything? And why are they so big?

VERONICA: Actually, sir, those are —

[ROGER SHAKES HIS HEAD VIOLENTLY]

VERONICA: –those are for unusually large dogs, sir.

DEAN: Are they! Are they indeed! And why are they on the bed? And why isn't the bed made? In addition to the filth, why is our so-called student newspaper sending a message that slovenliness is acceptable?

ROGER: It's inexplicable, sir.

DEAN: It is! It is! With that sort of example, that's why the students dress the way they do! I apologize to both of you. It's highly inappropriate for this sort of thing even to be discussed in front of you. Especially you, Miss Jones.

VERONICA: Thank you, sir.

DEAN: The proper time for you to discuss such things is the morning of your wedding, with your mother. So I'm terribly sorry you've been exposed to this. And you, Truman.

ROGER: Yes, sir.

DEAN: It's no better for you. A man should not dwell on such things until, like the Bible says, you leave your father and mother and cleave unto your wife. Forgive my rough language, Miss Jones.

VERONICA: Yes, sir.

DEAN: Of course, you've already left your mother and father. But when you leave your roommate — what's his name?

ROGER: Vince, sir.

DEAN: — when you leave to join your lawfully wedded wife and Vince has to find a new roommate, that's the right time to think of such things.

ROGER: So I've heard, sir.

DEAN: Quite right! Quite right you have! But college? College is no place for talk of such relations, let alone for the relations themselves.

ROGER: No, sir.

DEAN: And to treat the subject so disrespectfully, and so wrongly! Why, look at this page where they talk about . . . . "positions." They are mocking the marital act. They're just making up things that don't even exist! They're giving them numbers! It's all just poppycock.

VERONICA: Yes, sir.

DEAN: What I don't understand is why we're getting calls from the so-called press about this. This is a matter of school discipline. This . . . is a matter of good order. Why should good order get so much attention?

ROGER: Well sir . . .

DEAN: Yes?

ROGER: It's just that . . . well, sir, these students are all adults.

DEAN: Adults?

ROGER: Right. This is a community college. Lots of these students are older than four-year college students. Most have jobs. Some of them have families of their own. Maybe the press thinks they are mature enough to handle this sort of discussion. These days, lots of them are even veterans –

DEAN: Mr. Truman, are you under the impression that soldiers are tolerant of ess-ee-ex talk? Let me tell you, military discipline brooks no such indelicacy.

ROGER: As you say, sir. But some people are saying that the paper has . . . has First Amendment rights.

DEAN: Rights! Rights! Rights yield to the interests of the community, as determined by people like me, Mr. Truman. That's the most important thing you need to know about modern higher education. I have risen to this position for a reason, and I determine what is fit for students to read.

ROGER: Yes, sir.

DEAN: We'll have no more discussion of this. The paper is closed. It will stay closed. Now, get me the course catalog. I've heard some very disturbing things about the curriculum in the Biology Department.

ROGER: Right away, sir.

Edited to add:

EPILOGUE: SEVERAL HOURS LATER

[DEAN GARCIA BURSTS INTO THE ROOM]

DEAN: Fine! Let everyone talk about relations! Let everyone talk about dirty stuff all they want! SEE IF I CARE!

[Runs from room weeping]

ROGER: . . .

VERONICA: Let's just pretend today never happened.

ROGER: Yes please.

My three kids have three Spring Breaks, one after the other. At any given time, the one on Spring Break is indolent and the other two are insolent and resentful. I may be working late a lot this month, and my wife is going all Lifetime Movie of the Week with the wine fridge.

But elsewhere, across America, kids are still learning. Their impressionable little minds are absorbing the important lessons offered to them — lessons about math, lessons about English, lessons about science, and always lessons about civics — the relationship between the state and its citizens.

Take seven-year-old Josh Welch of Maryland. Josh was suspended because a teacher says he bit a pastry into the shape of a gun and waved it around. Josh learned a valuable lesson about the amount of trust and respect he should have for government actors.

In Pennsylvania, five-year-old Madison Guarna was suspended for "terroristic threats" when she told friends she was going to shoot them with a Hello Kitty toy that makes soap bubbles. Madison learned an important lesson about how government actors will use citizens' fear and uncertainty to convince them to surrender rights and to increase the government actors' power.

In South Carolina, six-year-old Naomi McKinney was expelled from school — and threatened with criminal trespass charges if she returned — when she brought a clear plastic toy gun to school. Naomi learned an important lesson that government actors like broad rules that give them substantial power over citizens, and dislike requests that they exercise judgment, proportion, or what non-governmental actors might call reason.

In Philadelphia, fifth grader Melody Valentin arrived at school and realized that in her pocket she had a paper gun her grandfather had made for her. She tried to throw it away, but another student saw her and informed on her to the principal. School officials scolded her publicly and threatened her with arrest and searched her. Melody learned a valuable lesson about how state actors will maintain power by turning citizens against each other and making citizens extensions of their own control.

Finally, in Lodi, California, school officials propose to teach children many messages at once through an "anti-bullying" initiative forbidding students from "posting crude or disparaging remarks via electronic media."

First, arguing that after-school activities are a privilege and not a right, Lodi school authorities argue that they have the power to impose such a broad policy on outside speech upon students who want to participate in such activities:

Extracurricular activities are privileges, not rights, district officials said. With athletes and club members, they have a vehicle to take away an activity that students enjoy. They don't have that leverage for students who simply attend their classes and go home, officials said.

This teaches children the important lesson that everything the government gives you or does for you comes with a price — and that the price is often a piece of your liberty.

Second, Lodi officials are arguing students and parents can't be trusted to handle this issue themselves:

However, a sampling of Lodi High students say it's an issue that students can address on their own without adult interference.

Administrators and trustees in the Lodi Unified School District don't agree, saying that some students cross the line when it comes to posting comments about others.

This teaches children that government actors do not view them as capable of thinking or acting for themselves, and crave ever-increasing authority over them.

Third, Lodi officials are crafting a broad, vague, subjective policy:

Beginning in the 2013-14 school year, student athletes and club members will have to sign a contract promising that they won't post remarks that can emotionally harm others online. This includes social media like Twitter, Facebook, Instagram and Tumblr.

The policy applies to students both in school or out. This teaches children the lesson that government officials seek control over every aspect and every moment of their lives. The policy makes students responsible for the subjective emotional reactions of others. This teaches students that government actors like rules that are subjective (giving them more power) and rules that expand their power into the realm of feelings rather than actions (giving them more power). The rule is exceptionally vague. What types of emotional harm is covered? If a student complains that a particular person is bullying her, and the bully is embarrassed, has the bullied child broken the policy? As a tweet "our team crushed your team," causing despair, a violation? It's hard to tell. This teaches children that the government favors vague and ambiguous policies that maximize their power over citizens, and that often induce citizens to remain silent rather than speaking at all and risking violation of the policy.

Some look at these educational policies and despair. I, on the other hand, look at my kids and see how sharply they observe the world around them. Surely the children in Maryland and Pennsylvania and South Carolina and California are watching their teachers and taking away the right lesson — the lesson about how much they should trust, respect, or defer to the government.

Hat tip to Nathaniel.

Prior coverage of Prenda Law is collected here.

Can things get worse for Prenda Law even before the next hearing before Judge Wright?

Yes. Yes they can.

Prenda Law's three censorious defamation suits inspired me to start writing about their shenanigans. Though John Steele dismissed the one he filed in his own name in Florida, two cases remain in federal court in Illinois: one filed by Prenda Law in the Southern District of Illinois, and one filed by Paul Duffy in the Northern District of Illinois. Jordan Rushie posted them here.

As you may recall, among others Prenda's defamation lawsuits target Alan Cooper — nominally an executive of Prenda's clients, but according to him, a victim of identity theft — and Cooper's lawyer, Paul Godfread. Though the suits are very vague, they seem to attack Cooper and Godfread for asserting (both in public and in court) that Prenda has stolen Cooper's identity.

Yesterday, March 21, Cooper and Godfread struck back. They filed answers and counterclaims in both Illinois federal suits.

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When is writing about someone the equivalent of writing to them?

The distinction is an important one. Writing about someone enjoys broad First Amendment protection. Writing to someone can, under some circumstances, be treated as harassment, or as a threat, or as a violation of an existing restraining order — especially if the contact is unwelcome and threatening.

The distinction is rife for abuse. Consider convicted perjurer, drug dealer, and domestic terrorist Brett Kimberlin, who got a broad and unprincipled "peace order" against blogger Aaron Walker purporting to prohibit him from blogging about Kimberlin. Kimberlin's theory was, in part, that because he had set up Google alerts on his name, by blogging about him Walker was contacting him and harassing him. Or consider blogger Dan Valenti, saddled with an unconstitutionally broad restraining order forbidding him from blogging about a criminal case on the bogus theory that his writing about someone constituted harassment.

Thanks to several tipsters, I see that a Florida court has examined the distinction in the context of a threats case. The case is Timothy Ryan O'Leary v. State of Florida, and the opinion is here.

O'Leary sounds like a scary nutcase. He posted the following on his Facebook page, referring to his relative and her partner:

FUCK my [relative] for choosin to be a lesbian and fuck [the partner] cuz you’re an ugly ass bitch . . . if you ever talk to me like you got a set of nuts between your legs again . . . I’m gonna fuck you up and bury your bitch ass. U wanna act like a man. I’ll tear the concrete up with your face and drag you back to your doorstep. U better watch how the fuck you talk to people. You were born a woman and you better stay one.

O'Leary's cousin Michael — a Facebook friend — showed this statement to the threatened relative. The issue the Florida appellate court confronted was this: by posting the threat on Facebook, did O'Leary "send" it to his relative or her family, as required by Florida's criminal threat statute? Yes, said the court:

Here, appellant reduced his thoughts to writing and placed this written composition onto his personal Facebook page. In so doing, the posting was available for viewing to all of appellant’s Facebook “friends.” With respect to the posting in question, appellant had requested Michael O’Leary ¹ to be appellant’s Facebook friend, a request that Michael accepted. By posting his threats directed to his family member and her partner on his Facebook page, it is reasonable to presume that appellant wished to communicate that information to all of his Facebook friends. Given the mission of Facebook, there is no logical reason to post comments other than to communicate them to other Facebook users. Had appellant desired to put his thoughts into writing for his own personal contemplation, he could simply have recorded them in a private journal, diary, or any other medium that is not accessible by other people. Thus, by the affirmative act of posting the threats on Facebook, even though it was on his own personal page, appellant “sent” the threatening statements to all of his Facebook friends, including Michael. Michael received the composition by viewing it. As the trial court correctly ruled, at that point appellant’s violation of section 836.10 was complete, because the target of the threatening composition was a relative of the recipient.

In other words, by posting the threat on Facebook, O'Leary sent the threat to Michael, a relative of the victim, satisfying the elements of the statute.

Perhaps this result is less troubling because it concerns a threat of bodily harm, not a discussion of a disputed subject. (It appears that the question of whether this was a "true threat" — meant to be taken seriously, or reasonably taken seriously — was not the issue contested in the case.) But it's easy to see how, in an age of forums and blogs and social media, the doctrine could be abused. If someone has demanded that you stop writing about them, but you continue, knowing that their friends monitor what you write and will relay it to them, are you "sending" your communication to them? Doesn't this threaten to give people a heckler's veto over people writing about them? Or will courts interpret the doctrine narrowly to apply only to threats, when circumstances suggest that the defendant intended to use the medium to communicate the threat to its ultimate victim?

By the time the courts figure it out, we'll probably be using an entirely different technology.

When a public official acts like a censorious asshat, and flogs one of my least-favorite stupid pro-censorship quotes, and is named "Nutter," my fundamentally suspicious and misanthropic nature leads me to look around nervously. Am I being Akbarred here? Or is this giddy warmth and pre-pounce quivering anticipation I feel further evidence of a God that loves me?

It's the giddy warmth one.

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Speech has consequences. Some of these consequences are legitimate; they are reflections of other people's speech. You might disagree with them, but if you have any self-respect, you won't whine that they constitute censorship.

But some consequences — often, but not always, inflicted by the government — are illegitimate. Warren, a business owner who writes at Coyote Blog, encountered such a consequence. When he expressed himself on his blog and linked to a negative Yelp review of a government agency, a functionary from that agency threatened him with loss of government contracts:

Well, one day I got a letter via email from a regional manager of the state parks agency whose park was the subject of that Yelp review I linked. I was notified that I had 48 hours to remove that blog post or I would lose all my contracts with that state. In particular, they did not like a) the fact that I linked to a negative Yelp review of one of their parks and b) that I impugned the incredibly noble idea that state parks are all operated by law enforcement officials.

There are a lot of things Warren could have done. I'm sure there are a lot of things he was tempted to do, as I would have been. Instead of doing the most viscerally satisfying thing, the most "just" thing, or the most "righteous" thing, Warren did the most effective thing for his business and for the immediate preservation of his freedom of speech: he engaged with the grown-up in the room.

Fortunately, I was able to write the acting General Counsel of the agency that afternoon. Rather than sending something fiery as the first salve, I sent a coy letter observing innocently that her agency seemed to believe that my contracts with the state imposed a prior restraint on my speech and I asked her to clarify the boundaries of that prior restraint so I would know what speech I was to be allowed. To her credit, she called me back about 6 minutes after having received the letter and told me that it was void and asking me to please, please pretend I had never received it. So I did, and I reward her personally for her quick and intelligent response by not naming her agency in the story.

When you deal with government agencies, you often deal with people who are entitled, or stupid, or indifferent. But there are also people who are capable, dedicated, and principled. There are grown-ups in the room. You can rail against the government — as I do here — but, if you want quick and painless results, you can also look for and politely engage the grown-up. Maybe the grown-up is genuinely concerned with your rights. Maybe the grown-up is genuinely concerned with the government agency staying out of the headlines, or out of unnecessary trouble. Maybe both. You could vent your spleen to them — you could point out that they are surrounded by thugs and jackasses. That would be satisfying. That would be true. That would be just. But it wouldn't be effective.

Sometimes you just want a swift, effective outcome. When in doubt, find the grown-up in the room, and be civil and understated to him or her.

Some time ago, one Raphael Golb got in trouble for harassing people about the Dead Sea Scrolls. Everyone, I suppose, needs a hobby. Golb was convicted for actions including sending emails maliciously impersonating Yeshiva University vice provost Lawrence H. Schiffman, creating fake identities and sock puppets to promote his father's research, and generally acting like a dick.

In January Golb's conviction was affirmed. His behavior is odd.

But the behavior of a lawyer purporting to act on his victim's behalf is even odder.

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MEMORANDUM

TO: SINCLAIR COMMUNITY COLLEGE FACULTY, STAFF, AND SECURITY OFFICERS

FROM: PRESIDENT STEVEN L. JOHNSON

RE: I WASH MY HANDS OF THIS, AND MAY GOD HAVE MERCY ON YOUR SOULS

Dear Sinclair Community:

I have done all I can. But I am only one man.

Last year I alerted you to to the clear and present danger created by signs, posters, fliers, and other weaponized expression wielded by fanatics intent on inflicting idea-crimes on our community. I have struggled to protect Sinclair's right to ban signs and posters and other dangerous items that menace the physical and emotional and psycho-sexual security of our students and that threaten to continue the bloody heritage of 9/11, Columbine, Virginia Tech, and that time someone tried to organize a Young Republicans Club.

I come today to say I have failed you. But your blood will not be on my hands. I did what I could.

As you can see from the crowing of hate groups like the Thomas More Society and the Foundation for Individual Rights in Education, Sinclair has been forced into a settlement of a lawsuit brought by angry student dissidents. We have been backed into amending our Code of Conduct and Campus Access Policy, both of which had been bravely drafted by some of the finest and most progressive minds of the Theater and Sociology Departments. We have no choice but to yield. We are up against the retrograde policies imposed upon us by the so-called First Amendment to the United States Constitution, a document drafted by privileged landowners without any diversity committee input or Faculty Senate debate whatsoever.

So: have your bloody victory, "free speech advocates." Be it on your heads, not on mine, when "protestors" start swinging signs like Viking battleaxes and reaping innocent freshpersons like Autumn wheat.

I take comfort in this: though I have failed in defending an official policy limiting expression that might be hurtful to students, I have nurtured in their hearts the seed of an idea — that they have a right not to have their feelings hurt or offended. I see that hopeful shoot taking root and growing across the country. Those children are surely our future.

When Ahmed Ahmed filed a class action against McDonald's on the theory that they advertised halal food but sold non-halal food, reactions fell into three familiar categories. There was incoherent Gellaresque pants-wetting about how this was the harbringer of SHARIA LAW being enforced on every man, woman, child, and chicken nugget in God's Country. There were impolite suggestions that one would have to be an idiot to rely on McDonald's to abide by complex gustatory or cultural rules, and rude speculation that the natural and probable consequence of driving through McDonald's and asking for a halal meal is winding up with a week-old McRib spat in by Menachem Begin. Then there were the legal realists who suggested — correctly, as it turns out — that whatever else happens, this means money in the pockets of lawyers.

Nobody expected a free speech fight. Yet they got one.

See, when a potential settlement was announced, attorney and class member Majed Moughni didn't think much of it. He thought that it gave too much money to lawyers and let McDonald's off the hook too easily and didn't really accomplish anything of substance for class members. That sounds like a classic class action settlement to me, but I'm a notorious cynic. Moughni created a Facebook page criticizing the proposed settlement and urging class members to opt out:

McDonald's was going to pay $700,000 for selling "Haram" chicken sandwiches and labeling it as "Halal". The current lawyer on the case wants the the [sic] majority of the money to go to a medical center ($275,000) and a museum ($150,000), that lawyer Kassem Daklallah, wants to pocket $230,000 and the plaintiff, Ahmed Ahmed will keep $20,000. We think the money should go to you, the people who were lied to and bought and ate "Haram" chicken sandwiches, not a medical center or a museum who were not injured. …

Did somebody say injunction?

Jaafar & Mahdi, the law firm representing the class, was outraged. It reacted first by threatening Moughni with libel and a report to the state bar, and then with a motion seeking an injunction forcing him to take down the critical page and prohibiting him from criticizing the settlement. Incredibly, Judge Kathleen McDonald (no relation, apparently) granted a broad injunction, leading Paul Alan Levy and Public Citizen to step in to represent Moughni. The injunction purports to require Moughni to take down his criticism, replace it with Judge McDonald's orders and the class counsel's position, and refrain from any communications with class members without Jaafar & Mahdi's consent. As Public Citizen's brief convincingly demonstrates, the injunction is an unconstitutional prior restraint that misconstrues advocacy and opinion as false statements of fact — for instance, by suggesting that it is a false statement of fact to characterize Jaafar & Mahdi as "pocketing" substantial amounts of money. The same brief shows that the injunction not only violates Moughni's First Amendment rights by silencing him, but violates them by compelling him to say things he doesn't believe. The ACLU is backing Public Citizen and Moughni, and Judge McDonald's ruling has drawn substantial criticism.

Rather than vacating her lawless injunction promptly based on the compelling authorities submitted by Levy and Public Citizen, Judge McDonald has allowed the parties to dither and delay over whether or not to support the continued injunction. Meanwhile, as Levy points out, while Moughni is gagged by the court about class counsel Jaafar & Mahdi, Jaafar & Madhi has felt free to bad-mouth Moughni in the press.

I understand there is another hearing this week, perhaps that will produce results. Meanwhile, I understand that Judge McDonald has suggested that she will file a bar grievance against Moughni. If there are amongst our readers any Michigan attorneys who practice attorney discipline law, Public Citizen would appreciate your help.

Moughni's conduct — questioning the fairness of a settlement reached purportedly on behalf of a class of people, submitted for approval to a court — is at the heart of the First Amendment. It constitutes both petitioning the government and speaking freely about the government and its functions. Even if Judge McDonald lifts the injunction today, it is a travesty that it stood for even an hour.

Members of a class must necessarily repose great trust in the judgment of class counsel. Obviously the attorneys for the defendant corporation aren't looking out for the interests of the class, and judges have limited time and resources to delve into the truth of allegations and the fairness of a settlement. So ask yourself, class members: why would you possibly repose an iota of trust in a law firm like Jaafar & Mahdi that reacts to criticism by demanding a broad, lawless injunction silencing criticism of its judgment?

I've now added a Prenda Law tag to collect my posts about them.

Earlier I mentioned that Prenda Law and its principals had reacted to ongoing criticism by filing three lawsuits. Attorney John Steele — one of the attorneys affiliated with Prenda Law — has now dismissed his suit. The other two remain — including a lawsuit by Prenda Law in Illinois.

Alan Cooper and his lawyer Paul Godfread (who, you may recall, filed documents asserting that Prenda Law stole Mr. Cooper's identity) have removed the case to federal court in the Southern District of Illinois. Removal is a process that allows defendants to move a case filed in state court to the local federal court if certain jurisdictional prerequisites are met. The federal court in Illinois has ordered them to establish certain grounds for removal.

Meanwhile, however, many people are talking about a remarkable subpoena that Prenda Law served before Cooper and Godfread removed the case. That subpoena is directed at WordPress and purports to demand the IP address of everyone who visited the blogs www.dietrolldie.com or www.fightcopyrighttrolls.com between January 1, 2011 and the present. Those blogs, of course, are two of the Prenda critic sites that Prenda Law is suing.

There are a number of problems with this subpoena.

First, once Cooper and Godfread filed their notice of removal, the state court lost all jurisdiction over the matter (at least unless or until the case is sent back) and all proceedings in state court halted by operation of law — including the obligation to respond to outstanding discovery. Prenda Law would need to re-issue the subpoena in the federal proceeding.

Second, though I am looking into it, it's not clear to me whether Prenda Law followed the requisite procedure under the Uniform Interstate Discovery Act required for them to serve a subpoena on a California company in an Illinois case. We'll see.

Third, the subpoena is ridiculously overbroad. It asks for the IP addresses of everyone who visited the sites, not just people who made specified comments — let alone comments that could plausibly be deemed defamatory. Moreover, it demands IP addresses for a period in 2011 before Prenda Law existed, and therefore before it plausibly could have been defamed or wronged.

Fourth, under emerging doctrines governing attempts to discover the identity of anonymous commenters, it is doubtful that Prenda Law can justify its broad subpoena. Prenda's lawsuit, as I earlier pointed out, is a mish-mash of complaints about statements of fact (which could conceivably be defamatory) and statements of opinion (which cannot). Under these circumstances a court should quash the overbroad subpoena under the increasingly prevalent rule that a plaintiff must make some sort of preliminary showing to discover information about the identities of anonymous speakers.

I'm informed that WordPress has the subpoena, and has notified the blogs that they have seven days to respond. It's not clear to me that anyone is obligated to respond at all, including WordPress — the subpoena was voided by operation of law upon removal. But WordPress, and attorneys representing the blogs, may proceed cautiously and file something to challenge it. It is my hope that WordPress, for the sake of free expression and their own reputation, takes a strong stand in its own name against the subpoena — the whole internet is watching.

Rick Horowitz is an unapologetic blogger and a vigorous criminal defense lawyer in California. This is an unusually mouthy combination. Rick pulls no punches blogging at Probable Cause, where he enjoys the broad protections of the First Amendment to the Constitution of the United States of America.

But the First Amendment is but a law, and any criminal defense attorney will tell you there is a wide dark gulf between the law and the application thereof.

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This is not a Popehat Signal.

Yet.

If you follow online copyright issues, you've probably heard of Prenda Law, a controversial shop that has filed aggressive piracy cases against porn downloaders. Supporters say they vindicate legitimate copyright interests against pirates; detractors argue they rely on speculation in identifying alleged downloaders and practice what amounts to extortion in demanding targets choose between settlement or public identification. You can follow the controversy at sites like Ars Technica or Techdirt or any number of other blogs.

Recently Prenda Law — and the lawyers associated with it — have been accused of various forms of fraud in connection with their litigation strategy, including allegations that they either stole or made up an identity to serve as the corporate representative of one of their plaintiff entities. Prenda Law and its various associated attorneys hotly deny any wrongdoing. But hot denials have not prevented truly astonishing legal spectacles, like a jaw-dropping hearing in Florida or a extremely ominous inquiry by United States District Judge Otis Wright, whose inexorable wrath you should, if at all possible, avoid.

Prenda Law and its associated attorneys — possibly advised by Charles Carreon, possibly advised by someone recently hit quite briskly on the head with a shovel — have elected to manage this situation through broad and aggressive defamation actions in Illinois and Florida. Jordan Rushie collects them here. You can see commentary here and here, amongst many other places.

Prenda Law is pursuing not just Alan Cooper (who asserts that his identity was stolen for use as a bogus corporate representative) and his attorney, but online detractors including Fight Copyright Trolls and Die Troll Die, blogs devoted to criticizing what they regard as "copyright trolls." Prenda Law and its attorneys are also attacking many anonymous commenters and seeking to unmask them.

The lawsuits — which have been removed to federal court — are drafted in a manner that I can only describe as either malicious, reckless, or incompetent. Among their many problems:

1. In attacking Cooper and his lawyer, the complaints conflate things said outside of court (which might be subject to defamation analysis) with things said in court proceedings (which are almost certainly absolutely protected under the litigation privilege).

2. The complaints jumble and conflate statements which might be taken as statements of fact (and therefore might be susceptible to defamation analysis) with statements that are clearly, obviously statements of opinion, rhetorical flourishes, or hyperbole (and therefore cannot be the basis for a defamation claim).

3. Through vague and ambiguous pleading, the complaints seek to hold all defendants (Cooper, his lawyer, web sites, and anonymous commenters) liable for each others' statements, without any apparent basis for doing so. To the extent that the complaints purport to hold web sites liable for the statements of commenters, they run afoul of Section 230 of the Communications Decency Act. To the extent they seek to hold everyone liable for everything bad anyone else said about Prenda, they run afoul of, well, you know, the law.

I do not prejudge whether or not some of the statements cited in the complaints could be non-privileged false statements of fact susceptible to defamation analysis and attributed to people possibly responsible for them. But in my experience, competently pled defamation complaints pursued in good faith do not bury the proverbial pony in such an epic pile of horseshit. If Prenda Law or its attorneys do have legitimate claims of false statements of fact wrongly made against them, they have chosen for some reason to wrap those claims in a nearly impenetrable cloak of ambiguity and citations to clearly non-actionable statements. Rather, competent attorneys draft their defamation complaints in a manner that scrupulously avoids reliance on statements of opinion, rhetoric, or hyperbole in order to avoid motions to dismiss and anti-SLAPP motions. Complaints drafted like these smack of incompetence, lack of self-control, or malice.

Whether or not the lawsuits have any core merit, they are framed as overt attacks on internet anonymity and expressions of pure opinion. Such cases are best resolved when the defendants are represented by vigorous and competent counsel. As a member of the First Amendment Lawyers Association — and a writer concerned with free speech and the strong defense of defamation threats — I will be happy to offer my services by referring concerned bloggers or commenters to organizations that offer legal assistance in such cases or to pro bono counsel. When the time is right, I may put up the Popehat Signal.

Stay tuned.

Back in 2010, I wrote a post about a frivolous lawsuit filed by The Global Wildlife Center of Folsom, Louisiana against the satirical web site Hammond Action News in retaliation for an obviously satirical post about killer giraffes. Global Wildlife Center lost, and the case got some attention from blogs concerned with online free speech.

Today, I received a legal threat purporting to be from Ken Matherne, owner of the Global Wildlife Center. Using people smarter than I (a large set), I confirmed the email came from the Global Wildlife domain. In the email, Mr. Matherne threatens me with litigation and attempts to insult me. It has to be read to be believed.

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The hardest game on the internet is one I call "C/S/T", which is short for "Crazy, Stupid, Or Troll?" There are nuances to those categories — sometimes a troll is a performance artist, sometimes someone is not so much stupid as willfully ignorant — but the broad categories suffice.

It's such a hard game because on the internet being crazy can look very much like being stupid, and a troll can look very much like either in a quest for lulz. Occasionally someone is all three.

This week's C/S/T challenge takes us to the world of poetry. Back in the day I visited the world of poetry in an attempt to get into the world of attractive poetry-favoring women who were never in a kajillion years give me the time of day, which I had heard was adjacent.

The poet in question is one "Shaun Shane," a pseudonym. Shane is rumored to be dead, though not, as decorum and four millennia of poetic heritage would militate, of shame. If poetry is emotion recollected in tranquility, Shane's is insipidity recollected in banality. I refer particularly to his fortune-cookie-length poem "Tongues of Glass," which goes something like this:

if only
our tongues
were made
of glass

that bitch in study hall
would shut up
and I might make cheer team

Burma shave!

plotz

I'm doing the second half from memory but I think I got the gist of it.

[Aside -- very short poems can be very evocative or powerful or funny. These aren't. De gustibus pup 'n taco.]

Anyway, somebody is threatening Twitter users who quote "Shane's" poems. This someone uses the name "On Press, Inc.", fraudulently claims that "On Press, Inc." is a division of Knopf Publishing, and uses a bizarre array of duplicate Twitter accounts to spam threats. Tim Cushing at Techdirt has done an admirable piece of investigative work in a two-part story about "On Press, Inc." here and here. It's a long story, but well-told and a good illustration of internet culture.

Whoever is running the internet-threat operation under the name "On Press, Inc." has certain defining characteristics — truculence, functional illiteracy, and a grasp of law cobbled together by listening to 13-year-olds swearing at each other on Xbox Live. (Hint: if you think that anyone will ever be prosecuted for copyright infringement for quoting a poem on Twitter, you are a moron with a comic-book-level grasp of the criminal justice system. Full stop.) "On Press, Inc." insults to the best of its bless-your-heart ability, threatens civil suits and criminal prosecution against people who quote "Tongues of Glass" on Twitter, apparently sends DMCA notices, and generally asses about the internet. As Tim notes, bloggers have also received abusive comments nominally by third people but possibly by the same person running the "On Pres, Inc." account.

But here's the tough part. Is "On Press, Inc." run by a very stupid person? Is it run by a crazy person? Is the user both crazy and stupid? Is the person performing to make a point about legal threats or internet culture? Is the person attempting to publicize "Shane's" work through asshattery? Is the person trying to provoke people for lulz? Now that the bizarre legal threats are being covered, how can you tell "genuine" On Press, Inc. threats from ones that are fabricated by people satirizing On Press, Inc.? For instance, I had a Twitter exchange last night with this Twitter account styled to look like the other On Press, Inc. accounts, which yielded comments like "really we have bigger fish to fry than you. Your more entertainment for us. we get a lot of laughs." (Edited to add: here, courtesy of Tim, is the exchange.) Was it "real," or a troll pretending to be On Press, Inc.? Was it a troll pretending to be a different troll? [Ultimately my instinct was that it was someone pretending -- the illiteracy was a little too consistent and on-the-nose.]

This game isn't over. I'm not ready to call C/S/T. In playing the game, I note that (1) this preexisting biography of Shaun Shane displays some of the same illiteracy as the On Press, Inc. threats, (2) the preexisting Shaun Shane Facebook fan page displays some of the same illiteracy, (3) there are "On Press, Inc." corporations registered in five states (CA, MI, IL, OH, NY) with public contact information.

I am intrigued. I'd like to play this game out. Tim Cushing has done excellent work on it already, and others are starting to join into the investigation. Come play, if you like. Let's find out who is actually behind the threats and invective.

Updated: I have communicated with the principal of the California corporation named "On Press, Inc.", who indicates he has nothing to do with this nonsense. Investigating others.

Second Update: The New York "On Press, Inc." is inactive and would therefore not be able to sue anyone.

The game's afoot.