Speech suppression and sex

December 31, 2009

By J. DeVoy

Sex is the only reason anybody does anything.  Wars have been fought over women, great men have mutilated themselves over them, and men generally acquire money, power and status to increase their desirability and ability to obtain sex.  Sure, there’s the benefit of money, fame and the respect of the community, but traditionally sex has been part and parcel of high social standing.

Generally, men who have high standing, thus high desirability and many reproductive options, are the highest ranking males – alphas.  Some men are born this way.  For everyone else, there are tools to address three major areas that communicate alpha status: body language, psychosocial dominance (game), and status.

Starting with body language, this is a good example of alpha body positioning.

Note the arms calmly at the subject’s sides – not fidgeting or folded out of insecurity.  Moreover, the arms and shoulders are thrust slightly back, chest out, unafraid of a potential attack.  Legs are at shoulder width, with one foot pointed out at about 45 degrees.  As Roissy notes, this pose is nearly identical to Michelangelo’s David.

Beta body behavior is markedly different.

supine herb

Note the chubby cheeks and deference to his woman.  His head is in her lap, for chrissakes!  Is this a leader of men?  Someone to be trusted with contentious and high-stakes legal matters?  No.

Another example:

Chuck Ross has previously discussed the unforgivable betatude of Eminem.  In this picture, he’s gripping his famously unfaithful wife, Kim, not once but twice, pulling her as close as he can.  These dual death grips symbolize his tenuous grip on Kim’s interest and need to hold on to her at all times, lest she jump onto some other man (again).  This also debunks the myth that outwardly successful men can’t be beta – yes, they can.

Next, there is the element of psychosocial dominance, commonly referred to as game.  Many people write about game and its application in practical, nuts-and-bolts and, most importantly, free fora across the internet.  Books, the best among them being The Mystery Method and Savoy’s Magic Bullets, have been written instructing men how to interact with others and project this dominance in all its forms.  At its core are two principles: be cool and interesting.

A similar system exists for women.  The most effective man-landing and keeping techniques I’ve ever seen are routinely discussed at Girl Game, which promotes the femininity of women, the importance of cooking, and the need for balance between affection and discretion.  This is superior to women who promote using sex alone as a way to land men, or using the dated, boner-killing “rules” promulgated by used up divorced harpies that drive away men faster than having the name Lorena Bobbitt.

Finally, and most importantly for young people, there is the issue of status.  Status is the most easily malleable of these factors for young people; they cannot unlearn years of feminization in private schools and higher education.  Similarly, they cannot grow several inches or develop facial symmetry without significant surgery.  Thus, people looking to expand their options look to increase their status through accumulating degrees, fame, money and other forms of social capital.

It’s no surprise to anyone that the United States is becoming more liberal.  The election of Barack Obama and the panoply of entitlements he rode in on, such as universal health care, is just another exhibit in the inexorable conclusion that each generation is more liberal than the last.  Among young unmarried people, liberal ideas are more popular than conservative ones, and hold the key to broad social acceptance.  Young people, especially young men, will flock to the liberal dogma of political correctness, diversity and environmentalism in order to enhance their social status.  As a result, fewer people will be able or inclined to discuss competing viewpoints on pressing issues, dismissing any discussion of them as racism, classism or ignorance, even when the facts upon which they rely are called into question.  Worse, these same isms may be invoked to shout down others’ discussion of social problems in the face of controversial and emergent science in areas like genetics.

The reason adopting liberal intolerance for discourse likely confers status is clear from the presidential election’s results – more than three quarters of unmarried women voters went for Obama.  Even men who decry and question the relevance of the alpha/beta distinction are likely to fall in this trap through nice guy syndrome.  As some women can attest, nice guys are seldom nice, but passive aggressive weenies who label themselves as feminists and spew what they think women want to hear in an attempt to win their sexual favor.  Ultimately this fails; these supposedly nice guys ironically blame women for their solitude, but not without furthering their interests for an indeterminable period of time beforehand.

For either reason, the public debate democracy relies upon to thrive and solve its problems is undermined.  People are ostracized for pointing out unpopular but scientifically tenable information.  Discussion of these ideas is pushed into the nether realms of pseudonymity – there’s a reason Roissy and Ferdinand Bardamu write under pen names – or anonymity.  However, the P.C. mongers who create such an inhospitable environment for intellectual discourse then discredit these ideas because they emerged in an incubator where nobody will attach his or her name to such controversies.  I would applaud this politicking as brilliant if the collateral effect on society, progress and civil discourse wasn’t so detrimental.  In the end, though, it’s all about sex.  As long as these white knights of rightthink are rewarded with sex, or think they will be, it will be impossible to move beyond this paradigm.


“Cyber Civil Rights” Prioritizes Civility Over Rights

December 14, 2009

By J. DeVoy

In Danielle Citron’s paper Cyber Civil Rights, which she discussed at Denver Univeristy’s “Cyber Civil Rights” Symposium (summarized by Eric Goldman here), her contempt for existing First Amendment freedoms could not be clearer.  Though anonymous speech can shock and offend people, Citron proposes eliminating it completely.

First, Citron advocates the elimination of § 230 immunity under the Communications Decency Act of 1996 as it applies to certain claims against Internet Service Providers (ISPs).  Additionally, she envisions a regime where ISPs must keep records of the IP addresses assigned to their subscribers in perpetuity.  Second, the reason for this shift in policy arises from the reported victimization of women by online harassers.  Can’t men be victims too?  I’ll consider these propositions in turn.

I.      Citron’s proposed legal changes are asinine, impractical, or both.

The elimination of § 230 immunity for ISPs, however limited in scope, opens a veritable Pandora’s box of new problems for services providers.  If consumers think they pay too much for internet service now, they should just wait to see how they’ll internalize the costs of almost limitless liability for defamation, privacy invasion, and intentional and negligent infliction of emotional distress claims – even when meritless!  Inevitably someone has to pay the legal bills to fight these claims, and the ISP isn’t going to sacrifice profits doing so.

At Concurring Opinions, Michael Froomkin believes that allowing this framework to become law entails a value judgment.  He’s right, but for a different reason: allowing these claims is in itself a value judgment weighing emotional damages over fiscal ones.  Why not repeal § 230 in its entirety so that ISPs have distributor liability for violations of intellectual property laws by others, such as sharing movies and music?  The costs of insuring against such liability would be explosive.  Still, restricting the repeal of § 230 only to harassment-based claims is unfair to entities that lose millions of dollars in calculable financial damages through piracy and have no recourse against the ISP.

For the law to rescind any § 230 protection for ISPs would contradict the entire point of the internet.  The purpose of § 230 was to allow operators, including ISPs, to provide resources to the public without regard for how irresponsibly it would use them.  Similarly, ISPs will be loath to expand the reach and range of internet coverage when adding new subscribers will multiply their liability.  Swaths of the country have limited or no access to high-speed internet, a reality lost on the elites.  Increasing the ISPs’ costs of doing business with unsophisticated consumers will obstruct the end user’s internet access.

Moving to Citron’s second proposal, “traceable anonymity” is an oxymoron; if someone is traceable, he or she is not truly anonymous.  Many ISPs currently retain users’ IP addresses for a period of several months based on a provider’s values and price tolerance.  In the case of online harassment, the effect of the speech is almost immediate, obviating the need to have an eternal record of one’s ISP history.  The reality that any injured party’s legal claim is curtailed by a statute of limitations further weakens the case for a permanent record of IP addresses.  The wrongs Citron fears are quickly and easily ascertained; there is no need to keep a record of IP addresses like an individual’s medical history, retroactively looking for problems over years and decades.

Finally, intermediary technology can easily frustrate the goal of a permanent IP address record. Proxy servers for programs such as Tor and Ghostsurf can be located overseas, outside the reach of American jurisdiction, and mask a user’s IP address behind several layers of proxies.  In theory, this technology makes the speaker untraceable.  More laws would be needed to govern this behavior, further micromanaging internet use, or we have to admit that this kind of conduct is unmanageable.  Maybe shame can work.  Given the gender disparity of online harassment Citron cites, perhaps those concerned about it can frame the use of proxy servers as unmasculine and geeky.

II.    The First Amendment is, and should remain, gender-neutral.

At its core, this debate exists because women report online harassment more often than men.  Equalists, firm in their denial that people of different genders or backgrounds could ever be dissimilar in any way, naturally find this repugnant and attribute it to superstructures of power, hate, resentment and gender struggle that can only be defined in academic terms.  In reality, the causes may be simpler and should be subject to more rigorous research before becoming the basis of new law.

First, some assume that female harassment online is underreported.  To the contrary, it could be over-reported.  Surely no woman would wrongly accuse men of wrongdoing. Nope, never ever.  On the other side of this coin, why isn’t there concern about men underreporting their online harassment?  Because men silently struggle with smear campaigns against them in real life, there is reason to believe it doesn’t happen online and, as in real life, continues without discussion (let alone a report to law enforcement).

The second core assumption is that all, or even most, harassment is male on female.  While Citron cites studies that show female web identities are harassed more often, there is no way to tell that all of these harassers are male.  Though it may stun feminists, some women really do enjoy tearing down other women, and may take advantage of anonymity’s veil to do so.  In the case of men, their harassers may be other men or even females who revel in the torture and emasculation of lesser men.  These avenues’ lack of exploration undermines the validity of the assumption that online harassment is solely about men’s power over women.

Even if these assumptions are true, this is a reality of having free anonymous speech.  While nobody is condoning online harassment, discomfort in the face of unpopular speech does not render it inappropriate.  If it did, the outcomes of People v. Flynt, New York Times v. Sullivan and Pickering v. Board of Education would have all been rather different.  Perhaps this discussion would be changed if the First Amendment was a civil rights statute.  Even then it would be unseemly to prioritize the harm done to one group over another when both are affected, as Citron notes both men and women suffer from online harassment.  The First Amendment is not a statutory enactment, however, and it holds much greater regard in our legal system.  As there is no legal basis for limiting constitutional protections because one group has its feelings hurt more than the other, Citron’s proposal would be an improper encroachment on the First Amendment.

III.  Conclusion

In all, Citron’s proposal is an intrusion on the First Amendment for the sake of protecting people’s feelings.  This is a thoughtful but misguided goal.  Inasmuch as I dislike having my feelings hurt, the purpose of the First Amendment is to allow people to say what they want, anonymously if they wish, within the bounds of the law.  When Anonymous turns an internet persona like Paul Fetch into a “lolcow,” they are exercising their rights to disagree with his speech and have violated no law, however much Fetch may dislike it.  Prospectively limiting this right based on under-researched gender bogeymen is unconscionable and unconstitutional.  When exercised legally, the right to speech – and lulz – is and should be unfettered.

Jay DeVoy is a third-year law student at the University of Wisconsin Law School. There, he is the President of his Federalist Society chapter, on the executive board of the Wisconsin Moot Court board, and a member of the Wisconsin International Law Journal. DeVoy previously has held editorial positions with various student newspapers and dedicated his time to raising awareness of First Amendment and free market issues.


USA Technologies gets bitch slapped by EFF

December 11, 2009

USA Technologies, based in Malvern, Pennsylvania ought to see its stock price drop a little more once the world gets wind of what kind of morons run the company. A couple of message board posters commented about the company’s plummeting stock prices and the over-compensated executives at the consistently unprofitable company. So, USA Technologies’ crack team sprang into action, fixing the problem.

Ha, just kidding. They did what every moron does, pretend the problem doesn’t exist, but sue the commenters for defamation. (Complaint – courtesy EFF). They then issued a subpoena to try and unmask the anonymous commenters, and SPLAT! Their dipshittery smacked head on with California code of civil procedure § 1987.2

The EFF describes this statute as follows:

California code of civil procedure § 1987.2 awards mandatory attorney’s fees to an anonymous speaker if a court grants his or her motion to quash an identity subpoena issued in support of an out-of-state suit and “if the underlying action arises from the moving party’s exercise of free speech rights on the Internet and the respondent has failed to make a prima facie showing of a cause of action.” Translation: out-of-state litigants who try to use the California legal system to unmask anonymous speakers citing dubious legal theories may have to pay their target’s attorney’s fees for their trouble. (source)

Right on EFF!


Anonymous Hooker Blogger Outed

November 17, 2009

by Jason Fischer

If you’re a fan of Showtime‘s adult series “Secret Diary of a Call Girl” (or even if you aren’t), you may be interested to know that the real-life anonymous author of the blog and book that inspired the series went public earlier this week.  (Source)

Dr. Brooke Magnanti, Ph.D. in informatics, epidemiology and forensic science, in an interview with The Times, talks candidly about how she got into the biz of having sex for money.

Belle du Jour

Dr. Brooke Magnanti
(a.k.a. Belle du Jour)

I was finishing my writing — I was getting ready to submit my thesis.  I saved up a bit of money.  I thought, I’ll just move to London, because that’s where the jobs are, and I’ll see what happens.  So I did.  I submitted the thesis but I was still preparing for the viva — there was quite a lot of writing and studying still to do.

I couldn’t find a professional job in my chosen field because I didn’t have my PhD yet.  I didn’t have a lot of spare time on my hands because I was still making corrections and preparing for the viva; and I got through my savings a lot faster than I thought I would.  The difference between living in the Highlands and living in London is massive.  I hadn’t really thought that one through.

I have a pathological aversion to being in debt.  My mother’s family are Jewish; there’s this hoarding thing, saving, being prepared — if you’re in debt somebody could come and knock at your door and take it all away tomorrow.  It got to the point where I didn’t have quite enough money for my rent.  I asked my best friend if I could borrow some money and he posted me a cheque.

I was looking at this cheque.  It wasn’t even the total of my rent; it was a quarter of it or something, some stupidly low amount like £120.  I thought, ‘But once I deposit this cheque, I’ll still need money for next month.’  And I couldn’t do it.  I couldn’t borrow this money knowing that I couldn’t pay it back and that I’d need more pretty much straightaway.  And that was when I started to think: what can I do that I can start doing straightaway, that doesn’t require a great deal of training or investment to get started, that’s cash in hand and that leaves me spare time to do my work in?  (Source)

The Times article, while a little on the long side, is still worth the read.  It discusses, in some detail, how Belle du Jour has *disproved* some of the time-honored preconceptions about the world’s oldest profession.  One of the reasons that she gives for coming forward is that so many doubt her story, claiming that it must be fiction.  How could a prostitute actually feel empowered by her career choice?  Even claim to enjoy the work?

When asked about whether she thought being a prostitute hurt her emotionally, Dr. Magnanti answers “I’ve felt worse about my writing than I ever have about sex for money.”  Somewhere, Andrea Dworkin is screaming in anguish, rolling over in her grave.

H/T Odie


This story was originally posted on GaneshaFish.com


Hipcheck16 is no Turk 182 – but Anonymous Political Speech is Sacred

November 10, 2009

hipcheck16jpgThis one is a little disturbing.

Political Race Gets Nasty

During an election in Buffalo Grove, Ill., an online debate started about a candidate for Village Trustee, Lisa Stone. During that debate, this public official’s 15 year old son, Jed, got a little upset about some harsh statements lobbed at his mother, so he joined the debate — in particular, getting into a flame war with “Hipcheck16”.

At one point, the teen asked to know the poster’s identity and challenged him to debate the issues in person.

Declining an invitation to pay a visit, Hipcheck16 posted a response that said, according to court documents, “Seems like you’re very willing to invite a man you only know from the Internet over to your house — have you done it before, or do they usually invite you to their house?

The post then continues with references to the boy’s “mommy,” saying that statements made by her son may cause her political problems after her election, according to court records. (source)

Stone sought Hipcheck16’s identity, apparently through a pre-suit subpoena. Stone claimedl, “a comment was posted on this public forum by Hipcheck16 directed to the minor Petitioner that was defamatory.” (source). The judge ruled that Hipcheck16’s identity could be revealed to Stone if she decided to take legal action.

Stone calls this case about “protection on the internet.” (source)

I haven’t been able to find the actual court documents, but piecing together the story from the above-quoted news account and this story. This seems less about “protection on the internet,” and more like abuse of power mated with mama drama and a judge who got the law entirely wrong.

Anonymous Speech

The First Amendment protects an individual’s right to speak anonymously. See McIntyre v. Ohio Elections Comm’n, 514 U.S. 334, 342 (1995) (“[A]n author’s decision to remain anonymous . . . is an aspect of the freedom of speech protected by the First Amendment.”). This is especially so when the speech is of the political variety. The judge had a duty to evaluate whether the statements were actionable, and then, if he found them to be so, Hipcheck16’s identity should have been revealed. So far, I can’t find a statement made by Hipcheck16 that a reasonable judge should find to be defamatory.

Although the law is a patchwork, the consensus view of courts across the country is this: In order to unmask an anonymous speaker on the Internet, a plaintiff must demonstrate “a substantial legal and factual showing that the claims have merit.” See Sam Bayard, Swartz v. Does: Tennessee Court Says Couple Entitled to Unmask Anonymous Blogger. See also Solers, Inc. v. Doe, 977 A.2d 941, 954-57 (D.C. 2009); Sinclair v. TubeSockTedD, 2009 WL 320408, at *2 (D.D.C. Feb. 10, 2009); Krinsky v. Doe 6, 159 Cal.App. 4th 1154 (Cal. Ct. App. 2008); Doe I v. Individuals, 561 F. Supp. 2d 249, 254-56 (D. Conn. 2008); Quixtar Inc. v. Signature Mgmt. Team, LLC, 566 F. Supp.2d 1205, 1216 (D. Nev. 2008); Mobilisa v. Doe, 170 P.3d 712, 720-21 (Ariz. Ct. App. 2007); Greenbaum v. Google, 845 N.Y.S.2d 695, 698-99 (N.Y. Sup. Ct. 2007); In re Does 1-10, 242 S.W.3d 805, 822-23 (Tex. Ct. App. 2007); Reunion Indus. v. Doe, 2007 WL 1453491 (Penn. Ct. Comm. Pleas Mar. 5, 2007); McMann v. Doe, 460 F. Supp.2d 259, 268 (D. Mass. 2006); Best Western Int’l v. Doe, 2006 WL 2091695, at * (D. Ariz. 2006); Highfields Capital Mgmt. v. Doe, 385 F. Supp.2d 969, 975-76 (N.D. Cal. 2005); Doe v. Cahill, 884 A.2d 451 (Del. 2005).

Defamation of Public Figures

Lisa Stone

Lisa Stone

In order to show that there is any merit at all to her case, Ms. Stone would need to show that there was an actionable legal wrong — and that wrong was visited upon her son. That seems, as a matter of law, to be an impossibility.

Ms. Stone’s son may have been a public figure before the controversy started. I know of at least one case (from Florida) in which the husband of a lawmaker was deemed to be a public figure. See Dockery v. Florida Democratic Party, 799 So.2d 291 (Fla. 2d DCA 2001). Even if he was not a public figure before the debate started, Stone’s son certainly became a limited purpose public figure when he voluntarily entered the debate. I might feel differently about him, had he simply remained silent while anonymous critics made caustic and degrading remarks about him. But the boy jumped in the ring — he shouldn’t be a crybaby about it when he gets hit (especially when he seems to have won the fight).

As a public figure, in order to prevail in a defamation case, Stone must prove the “actual malice” on Hipcheck16’s part. While Stone probably thinks that the statements were “malicious” (and they certainly were), “actual malice” has a precise legal meaning, i.e.; known falsity or a reckless disregard for the truth. See New York Times v. Sullivan, 376 U.S. 254 (1964):

[There is] a profound national commitment to the principle that debate on public issues should be uninhibited, robust, and wide-open, and that it may well include vehement, caustic, and sometimes unpleasantly sharp attacks on government and public officials.

The purpose of the First Amendment is to ensure the unfettered exchange of ideas among the American people. See Roth v. United States, 354 U.S. 476, 484 (1957). The First Amendment does not demand politeness, fairness, nor that debate should be measured and soft. In fact, the First Amendment provides ample breathing room for political discourse to get nasty, unfair, and brutish. See New York Times v. Sullivan, 376 U.S. 254. Furthermore, the First Amendment does not require that every statement be 100% objectively true, nor does it allow defamation suits to continue just because a statement is false, or implies a nasty falsehood.

Vitriol is Protected

When it comes to defamation, it is not a simple matter of (False Statement) + (Angry Plaintiff) = Defamation. Context is everything. See Greenbelt Coop. Pub. Ass’n. v. Bresler, 398 U.S. 6 (1970) (when it is apparent, in the context of a statement, that its meaning is figurative and hyperbolic, the falsity of the literal meaning does not equal a knowing falsehood or reckless disregard for the truth, thus a public figure can not prove actual malice as a matter of law).

In Dworkin v. L.F.P, Inc., 839 P.2d 903 (Wyo. 1992), Hustler Magazine called Andrea Dworkin inter alia a “shit-squeezing sphincter” and “a cry-baby who can dish out criticism but clearly can’t take it,” Id. at 915.

Under prevailing constitutional First Amendment safeguards, that language cannot, as a matter of law, form the basis for a defamation claim…We agree with that said by the Ninth Circuit Court of Appeals: “Ludicrous statements are much less insidious and debilitating than falsities that bear the ring of truth. We have little doubt that the outrageous and the outlandish will be recognized for what they are.” Dworkin v. Hustler, 867 F.2d at 1194. Vulgar speech reflects more on the character of the user of such language than on the object of such language. Curtis Publishing Co. v. Birdsong, 360 F.2d 344, 348 (5th Cir. 1966). Id at 915-916.

The law is clear that defamation law is not there to protect anyone from annoying speech, embarrassing speech, vigorous epithets, or mere vitriolic spewings of an anonymous coward.

This analysis is followed in Illinois. Posner has written that rhetorical hyperbole “is a well recognized category of, as it were, privileged defamation.” Dilworth v. Dudley, 75 F.3d 307, 309 (7th Cir. 1996) See also Lifton v. Bd. of Educ. of the City of Chicago, 416 F.3d 571, 579 (7th Cir. 2005) (Illinois law requires that an allegedly defamatory statement must contain an objectively verifiable factual assertion); Pease v. Int’l Union of Operating Engineers Local 150, et al., 208 Ill.App.3d 863, 153 Ill.Dec. 656, 567 N.E.2d 614, 619 (1991) (“Words that are mere name calling or found to be rhetorical hyperbole or employed only in a loose, figurative sense have been deemed nonactionable.”). “The Illinois Supreme Court considers several nonexclusive factors in determining whether a statement constitutes an opinion or factual assertion: (1) whether the statement has a precise and readily understood meaning; (2) whether the statement is verifiable; and (3) whether the statement’s literary or social context signals that it has factual content.” Madison v. Frazier, 539 F.3d 646, 654 (7th Cir. Ill. 2008) citing J. Maki Constr. Co. v. Chicago Reg’l Council of Carpenters, 379 Ill.App.3d 189, 318 Ill.Dec. 50, 882 N.E.2d 1173, 1183 (2008) (citing Tuite, 310 Ill.Dec. 303, 866 N.E.2d at 121).

JedStone

Jed Stone - he kicked his mom's critic's ass -- then his mom made it clear that she wasn't worthy of the defense.

The “accusation” is clear — that young Mr. Stone has sexual liaisons with older men after invitations are exchanged over the Internet. The accusation is presumably false, and would be defamatory — in a vacuum. However, in the context of a flame war on a blog, it would be clear to any reader except the most bleeding-cerebrum imbecile that the statement was not lobbed as a statement of fact, but a mere insult. As such, this would be correctly described as “imaginative expression,” which is not actionable as defamation. See Milkovich v. Lorain Journal Co., 497 U.S. 1, 20 (1990).

Context is everything, and in the context of the online exchange, anyone who thinks that the statements to be false statements of fact that could support a defamation action is not qualified to hold the remote control to the television, let alone elected office or a judge’s gavel. Saenz v. Playboy Enterprises, Inc., 653 F. Supp. 552 (N.D. Ill. 1987) (“A reader of criticism expects rhetorical hyperbole and vivid metaphor, so the use of lively language is understood as hyperbole and metaphor, not as fact”), aff’d by 841 F.2d 1309 (7th Cir. 1988).

Hipcheck16 still sucks – and Jed Stone kicked his ass – but I still reluctantly side with Hipcheck16

This is not to defend Hipcheck16’s statements. In fact, I find them to be juvenile (and if I find something juvenile…), stupid, unnecessary, and a sign that Hipcheck16 is probably a weak and unintelligent person. Lets face it, Jed Stone is a 15 year old kid. If the best counter-argument that you can chuck at a 15 year old kid is a stupid sexual innuendo, then it is clear that Jed Stone kicked Hipcheck16’s ass in the debate already. It sounds like Jed can take care of himself. Sadly, his mother is capitalizing on drama, presumably to ride the “what about teh childrens on teh internets” wave.

Hipcheck16’s statements are stupid, unimaginative, and not worthy of anyone taking them seriously. Lisa Stone, on the other hand, is even worse. She is lashing out like a crazy-white-lady mom, and cares nothing for the damage that her actions could cause to political debate. She should let her son stand up for himself – he’s obviously capable of doing so. She’s taken his victory away from him by bringing this action, and the judge really needs a remedial course in Constitutional law.

Michael Furlong, Hipcheck16’s attorney, stated that his client was pondering an appeal. Let us hope, for the First Amendment’s sake, that he doesn’t back down from the challenge.

H/T to Ari Cohn for the pleading


AutoAdmit Case Euthanized

October 23, 2009

Article in the Yale Daily Journal does a good job of covering it.


When “Support” is Really a “Tantrum”

May 3, 2009

Facts are sexist!!!

Ann Bartow posted a piece over at Feminist Law Professors that started out seeming to be a rather nice bit supporting Prof. Mark Lemley, one of the attorneys representing Brittan Heller and Heide Iravani in the AutoAdmit suit, — and a defendant in Anthony Ciolli’s countersuit — a case that the Eastern District of Pennsylvania has allowed to go forward — in part.

Bartow writes:

Mark Lemley got involved with this case, in my opinion, because he is a progressive, good-hearted, moral and generous person. (source)

I can’t be sure why Lemley got involved in that case. I directly asked him that question, and he didn’t answer me. Nevertheless, I believe that Prof. Bartow’s assessment of him is accurate. He does seem like a genuinely good-hearted, generous, and moral person, and I have never heard a single person say otherwise. His involvement in the case did puzzle me, which is why I asked him about it. While his silence was disappointing, I can understand that for liability reasons, it was better that he not reply.

I suspect that he got bamboozled into the case — that he wasn’t told the whole truth until he was already waist deep in the muck, and then it was too late to back out gracefully. Accordingly, I think it is kind of nice that Bartow supported Prof. Lemley. Hell, the man was one of my heroes before I saw the Auto Admit case with his name on it. I still reverently respect him and personally like him, and a part of me hopes that he can disprove the allegations against him. However, if the allegations do stick, like him or not, adults must answer for their actions.

Regardless of Lemley’s motivations, Prof. Bartow’s piece is not at all about supporting Lemley. Behind all of her compliments for him, this post is just Bartow’s latest anti-free-speech diatribe (see commentary on a previous one here), further demonstrating that second-wave feminists have turned the Auto Admit case into their cause-celebre. They just can’t wrap their heads around the fact that sometimes, occasionally, the poor female victim(s) can lie, be spiteful, be unethical, be misled, or just plain wrong. Or, if they can wrap their heads around it, they would rather set themselves on fire than admit it.

Bartow writes:

[I]t seems pretty obvious to me why Anthony Ciolli was named in the original law suit. ISP immunity under Section 230 does not apply to the authors of contested material. Ciolli was clearly posting comments at the AutoAdmit discussion board under at least one pseudonym, “Great Teacher Onizuka.” The plaintiffs had every reason to suspect that he was posting under others as well, and that he could have been personally responsible (and liable) for some of the actionable material. They could not rule him out without conducting discovery in the context of litigation, and they could not do a thorough investigation of the matter unless Ciolli was a named party. Once the plaintiffs knew either that Ciolli was not a bad actor or that they would be unable to prove that he was a bad actor, they dismissed him. Any competent lawyer would have done the same thing. This is Civil Procedure 101. (emphasis added)

Ciolli was “clearly” posting under a pseudonym. Was he? Was it clear? Was it about the girls? Was it negative? Then why include this?

Lets teach Prof. Bartow a little bit about Civil Procedure. Or, better yet, lets teach everyone else about it, because I can’t see Bartow getting off her shrill perch — but I’d rather not let people in the blawgosphere be misled.

Even if Ciolli were not a defendant, the plaintiffs would have had every right to subpoena and depose any person who may have possessed relevant information. In fact, after Ciolli was dropped from the case, Heller and Iravani’s lawyers did, indeed, take his deposition to make sure that they did not leave any stones unturned. Any competent law professor would know that this was not only possible, but proper. Any competent blogger would have at least read Ciolli’s complaint to find that fact. But, lets not let a pesky thing like the facts get in the way of a Dworkin wanna-be’s tirade.

If the reason Heller & Iravani sued Ciolli was because he “might have” posted under multiple personas, then why did they not name each and every moniker on Auto Admit? Everyone on Auto Admit could have had multiple monikers. In fact, law professor Brian Leiter is rumored to have posted on Auto Admit under the name “Tokyo Rose.” I posted on AutoAdmit under my real name. Why not name me? By Bartow’s post-hoc rationalization, Leiter and I both could have been one of the defendants until we were ruled out in discovery, no? Furthermore, if there was ever a suspicion that Ciolli used another moniker, then why wasn’t that allegation ever made, on information and belief, in the complaint?

I’ll tell you why not, because the Plaintiffs’ own published statements contradict Bartow’s made up “facts.” The “theory” that Mr. Ciolli was another pseudonymous poster never arose until Heller & Iravani’s lawyers started grasping for a way out of possible sanctions, and their cheerleaders started to see their lovely pre-packaged daydream unravel.

A competent attorney does not file suit against each and every person who could hypothetically be a defendant. (As in if the facts and the law were stretched like a goatse about to snap). If that were the case, then every lawsuit would name hundreds of defendants, including people who did nothing wrong, and let discovery sort out who was actually liable. Meanwhile hundreds of additional defendants would need to report that they were defendants in civil actions and live under the cloud of litigation while plaintiffs took their own sweet time figuring out if they had sued the right person. No, it doesn’t work that way and Professor Bartow should know that.

Bartow then throws out her own “theory.”

My theory on why Ciolli is suing Lemley and the plaintiffs? To scare away other potential plaintiffs, and to discourage other lawyers from representing them.

To scare other potential plaintiffs who might bring a lawsuit against him? I should hope so, since pages 23-29 of this decision make it pretty clear that Ciolli has brought a proper claim for wrongful initiation of civil proceedings against Iravani and her attorneys. Ethics and judgment are supposed to discourage lawyers from bringing baseless claims. It is a shame when someone must file suit in order to “scare” potential plaintiffs from abusing the courts and filing frivolous claims for an improper purpose.

The AutoAdmit case has been shown to be more of a shakedown, legal extortion, than a suit calculated to vindicate any real legal interests. While some might point out that over-inclusiveness and scattershot complaints are more common than I might like, the fact is that Bartow’s post is less about backing a nice guy – and more of a way of backpedaling and acting as an apologist for misuse of the legal system. Ethics matter, and the reason that so many lawyers miss that lesson is professors like this seem to disagree.

Ciolli had some pretty damning evidence to present in his case. Unfortunately for him, the E.D. Pa. ruled that it was excluded by FRE 408. Lets sit back and see if Ciolli’s lawyer in that case can find an alternate way of getting the information before the court. If he can, I’d imagine that Ciolli will prevail — which will probably give Bartow an excuse to blame it on the “patriarchy,” because in Bartow-world, the only women who are ever wrong or ill-motivated are those who disagree with her.


Tennessee Court Upholds the Right to Remain Anonymous

March 18, 2009

by Jason Fischer (follow me on twitter)

Defamatory material, like obscenity, is not protected by the First Amendment. But just like obscenity, a particular message cannot be considered defamatory until it has been adjudged to be so by a court of competent jurisdiction. A Tennessee court, recognizing this principle, allowed a blogger who is accused of publishing defamatory comments to remain anonymous, absent a prima facie showing that the plaintiffs have in fact been defamed. (source)


Remember: If you don’t have anything nice to say, you should just say it on teh Internets

March 13, 2009

by Jason Fischer (follow me on twitter)

Google was in court this week over allegedly defamatory comments made on an anonymous blog that the search giant hosts. Chris Thompson’s post describes the gory details, including references to two of our favorite cases: Hot Chicks With Douchebags and AutoAdmit.

Update: If you want to start an anonymous blog, here are some guidelines.


James Madison – 18th Century Spammer?

December 14, 2008

by Jason Fischer

Virginia’s Attorney General is trying to override a ruling of that state’s highest court, which struck down an anti-spam law as violating the First Amendment. The law, as written, did not limit potential violations to the sending of purely commercial spam emails. Since the legislation made it possible to prosecute senders of, for example, bulk political emails, Virginia’s Supreme Court held that it was no good.

“[I]f the Federalist Papers were written today and disseminated by e-mail, the sender would be guilty of a felony under Virginia’s anti-spam statute.” (source)

What about that Algerian prince who keeps contacting me? Are his emails “political” speech, like the Federalist Papers?

Personally, I have a hard time accepting that the Framers intended that stuffing my Inbox with unsolicited communications, whether containing commercial speech, political speech, or otherwise, should be a fundamental right. The concept of Free Speech, as I understand it, is meant to protect one’s ability to express their own viewpoint and opinion, without fear of persecution. If someone doesn’t like my particular viewpoint, they should be able to ignore it by refusing to purchase the newspaper that features my editorial, or changing the channel, or simply not listening. The analogy to bulk email is imperfect; I cannot “ignore” or “refuse to accept” an unsolicited communication from a spam emailer. Unless I had “opted in” to receive The Federalist Papers as an email, I would not have wanted Madison and Hamilton sending me their political message.

I guess Harbin and I won’t agree on this one.


Judge Warns Litigants Against Unprofessional Litigation Tactics

November 24, 2008

For those of you who are new to the profession, or those of you who are simply wondering why your job as an attorney is so stressful, David Maister offers some advice.

The toughest lawyer is not the one who is the most obnoxious. Clients will say they want a tough son of a gun to make somebody life’s miserable, a real bulldog, etc.

Don’t be that person. It’s been my 100% uniform experience that the bulldog only adds time, expense, stress and confusion to an otherwise inevitable result. Even clients can’t stand them after a couple of months. You want to be tough? Have the best preparation on the facts, the law and the strategy. Judges care only about those things, not a whit for bluster. Bullies are jerks, they wreck the profession for everyone, and you can beat them every time.

And finally and hands down most importantly, and please pass this on to your friends and your children, because it’s really important — Be nice and have fun. Just doing that makes life better for everybody, mostly you.

Fortunately, most of the lawyers I have met as opposing counsel already know this. I learned it very early in my career from a great guy in Fort Myers, and as a result, most of my best friends in the profession are former opposing attorneys. Unfortunately, I have encountered my fair share of douchebags in this profession as well. That’s fine, I think that despite Maister’s wisdom, one does need a punching bag to get out one’s aggression — douchebag lawyers serve that purpose for me.

In an ongoing SLAPP suit in Arizona, it seems that someone has been ignoring Maister’s advice and engaging in a little bit of litigation douchebaggery. See Best Western v. Doe, Case 2:06-cv-01537-DGC (D. Ariz.)

The Court assumed that the case would settle or be tried in a relatively simple proceeding. The Court again was wrong. On October 15, 2008, the parties filed 2,939 pages of material. These include a 125-page joint proposed final pretrial order, 31 motions in limine, and three longer motions that should have been motions in limine. In a remarkable feat of microscopic dissection, the parties sliced four modest claims into 51 separate factual disputes and 30 issues of law. Plaintiffs listed 52 potential witnesses and Defendants listed 69. Plaintiff listed 434 exhibits (with 175 pages of objections to defendants’ exhibits), and Defendants listed 320 exhibits (with 63 pages of objections to Plaintiff’s exhibits). The parties claim the need for 102 hours of trial time, which would require a five-week trial.
These filings are wasteful in the extreme.

The Court is not a forum for the parties to expend every possible dollar seeking to litigate every conceivable issue, no matter how insubstantial. The Court will no longer tolerate the excesses of this case. (Op. at 3-4, emphasis added)

HT: Eric Goldman


Memphis Police Director Targets Anonymous Bloggers

August 22, 2008

By Sam Lea,
Legal Satyricon Correspondent

Memphis Police Director Billy Godwin has filed a lawsuit aimed at discovering the identification of the persons behind a Blog that is particularly critical of the Director as well as the Memphis PD (source ). The Blog is known as MPD Enforcer 2.0, which has become a popular place for Memphis Police Officers to anonymously vent their frustrations with the Department and its leadership.

Most of the documents associated with the case have been sealed by the court, so it is unclear if the objective of the suit is to simply identify “leaks” in the department, or if it is to simply shut the site down. Memphis Police officials have refused to comment on the pending legal action, but what is clear is that the actions taken by the City of Memphis on behalf of Director Godwin have stirred up a hornet’s nest of controversy over the right to anonymous speech.

The person responsible for the blog identifies himself only as “Dirk Diggler” (name of the porn star in Boogie Nights). In an anonymous interview, Mr. Diggler states that he found out about the suit only after receiving an email from AOL which contained a copy of the subpoena requiring them to hand over “all information related to the identity of an email address linked to the site.”

Recent decisions dealing with anonymous speech on the internet appear to be in favor of preserving the right of an individual to remain anonymous, requiring the plaintiff’s claims to be able to survive summary judgment (Cahill v. Doe), with some courts requiring a “prima facie” showing that he or she has a valid legal claim (Krinsky v. Doe).

However, this case is unique in that it involves a public agency and public employees. The courts have routinely recognized that the state possesses great leeway to control employee speech that threatens to undermine its ability to perform legitimate functions. Director Godwin may contend that the Blog undermines the leadership of the MPD, which may have adverse effects on its ability to effectively prevent crime.

However, along with his criticism of department leadership, Mr. Diggler claims to only post blogs based on information already available to the public, so the Pickering Test (clicke here) and its progeny would likely protect the anonymous bloggers if some sort of retribution is sought by the department. After all, corrupt, ineffective police leadership is a matter of public concern. The problem is that these protections will only be available once they are ousted.

Mr. Diggler claims the suit has already had a “chilling effect” on officers contributing to the site. If their names are revealed it would effectively shut the site down and Director Godwin would achieve his objective without even continuing the suit. Can you say SLAPP suit?


Gators Attack Juicy Campus

July 31, 2008

University of Florida Student Body President, Kevin Riley, and Chief Information Officer, Marc Hoit, recently issued this letter to the Florida Attorney General asking that the Florida Office of the Attorney General launch an investigation into Juicy Campus, the well-known gossip site. They did not elaborate on what kind of investigation they expect the state to launch.

I agree that JuicyCampus.com contains terribly defamatory posts about many people. However, if you are gullible enough to believe anything you read on JuicyCampus.com, your opinion cannot be all that influential. I also think that asking the government to launch an investigation because a few thin-skinned people have had their feelings hurt is asking for a level of governmental paternalism that used to (in my day) piss college students off. Kids these days…

The letter reads:

“[JuicyCampus] is used to anonymously post gossip regarding students. The anonymity, and the guarantee that information about a user’s identity will not be tracked, provided by JuicyCampus emboldens users to post false and damaging statements about others. These posts often amount to cyberbullying and raise issues of public welfare and safety.” (source)

Mr. Riley and Mr. Hoit, in their zeal to go crying to the teacher, seem to have neglected to do their homework. JuicyCampus.com is protected from liability for the actions of its users by 47 U.S.C. § 230, which was passed in order to ensure that online businesses would not have to grind to a halt while they police their users’ actions. The phone company is under no obligation to make sure you don’t use your phone to set up a contract killing, a drug deal, or to make sure you don’t say nasty things about your co-workers. Similarly, internet service providers should receive the same laissez-faire treatement, lest censorship become the bastard child of technology. See Robert Corn-Revere, New Technology and the First Amendment: Breaking The Cycle of Repression, 17 Hastings Comm. & Ent. L.J. 247, 264 (1994). Naturally, the internet =/= phone lines. However, unless the website in question actually assists in the production of the offending material, it is not liable. See, e.g., Craigslist Wins Section 230 Case. The much-misunderstood Fair Housing Council v. Roommates.com decision did not change that rule, but rather reinforced it. In that case, Roommates.com provided pull-down menus that guided users to create potentially discriminatory housing postings. Therefore, they lost their Section 230 immunity. Craigslist is, like JuicyCampus, free-form and fully protected.

Despite their claim that JuicyCampus raises issues of public welfare and safety, the signatories of this foolish missive appear to be clueless as to how JuicyCampus has cooperated with the authorities in the past.

In situations where Juicy Campus posts have crossed the boundary from nuisance or harassment to outright threat, the site has cooperated with authorities. In December, Carlos Huerta, a senior at Loyola Marymount University, in Los Angeles, posted a message on Juicy Campus alleging that he would start a shooting spree on campus. At the request of the police, Mr. Ivester traced the threat to Mr. Huerta, who was arrested and released without charges. (source)

I agree JuicyCampus most likely hurts a few people’s feelings. There may even be an anecdote or two that raises the complaints beyond mere alligator tears. However, the vast majority of the content on JuicyCampus is innocuous or just plain silly. It seems to me that the only purpose served by this letter was a desire to appear to care about a non-problem.

I have been to bathrooms at the University of Florida where I saw defamatory material written on the wall. No investigation was launched – at least not at the level of the state Attorney General – and nobody called for the building to be torn down. The logic of blaming the forum for the actions of the participants is as illogical as closing a public park because someone held up a defamatory sign.

Section 230 is an example of Congress getting an issue right — internet commerce must be allowed to grow, even if that growth causes a few stretch marks.

Kevin Grierson said:

I don’t think it’s the job of the law to limit the options of law-abiding citizens and businesses because of the potential harm to the Darwin-Award-winning segment of our society.

Similarly, it is not the job of the state to intervene in every example of hurt feelings – even if it is a widespread issue. The next time you take a flight, look at the immense hassle you have to go through. Flying in America is an experience that is a pain in the ass because we passed rules designed to affect the behavior of a few of the worst people in society. Then, we handed the rulebook to dumbest nitwits we could find. Do you really want the government passing rules and launching investigations that may wind up placing the same kind of restrictions on the greatest tool for mass communication ever invented? I sure don’t.

If a student feels aggrieved by the content on Juicy Campus, he or she has the right to file a private cause of action. If the speech rises to the level of a true threat, the police will get involved. Asking the government to launch an investigation into a public forum because of the actions of a minority of participants in that forum is an act of abject foolishness.

There are some areas where the government should never venture – including criminal investigations of activities involving free speech. Fortunately for us, I do not believe that Bill McCollum will take any action. Mr. McCollum, a die-hard Republican, has an excellent record when it comes to free speech issues. McCollum has tirelessly pursued child predators and human traffickers, but he has courageously resisted calls from social conservatives to investigate and prosecute mainstream pornography. McCollum understands the meaning of being a conservative, and is not likely to intervene in a situation that could be cured either through the marketplace of ideas or over-cured by government intervention.

I don’t mind Mr. Riley or Mr. Holt raising the alarm about Juicy Campus. They were well within their First Amendment rights to express their opinion, and to petition the government to take any steps they liked. They crossed the line by purporting to speak for the tens of thousands of students at the University of Florida. I called McCollum’s office, which confirmed that there has been exactly ONE complaint about Juicy Campus by University of Florida students — and that was launched by the student body president himself. Who were these two ass-hats speaking for but themselves?

I encourage Mr. Riley and Mr. Holt to do their homework before they try to start a government investigation into people saying naughty things about one another. I have always found the University of Florida to be a shockingly intellectually complacent institution (and yes, I am a Gator), but this is a new low. Had this been a less enlightened attorney general, their foolish letter very well could have caused real damage to free speech on the Internet.


Memphis Police Sue to Out Anonymous Critic

July 26, 2008

From Commercial Appeal via hawkhead at biglawboard

Memphis Police Director Larry Godwin and the city of Memphis have filed a lawsuit to learn who operates a blog harshly critical of Godwin and his department.

The lawsuit asks AOL to produce all information related to the identity of an e-mail address linked to MPD Enforcer 2.0, a blog popular with police officers that has been extremely critical of police leadership at 201 Poplar.

“In what could be a landmark case of privacy and the 1st Amendment,” the anonymous bloggers write on the site, “Godwin has illegally used his position and the City of Memphis as a ram to ruin the Constitution of the United States. (source)

There is a suggestion that this may have something to do with stopping investigation leaks, so I’ll reserve judgment for the moment. However, it certainly looks like an angry public figure stomping on the First Amendment. Comments from anyone who knows more about the case are invited.


Pseudonymous Speech and Message Board “Acting” and the AutoAdmit Case

July 22, 2008

A fascinating post on Big Law Board:

Isn’t it obvious, from all we’ve seen throughout the years on various message boards, that monikers are mainly acting names behind which someone hides in order to provide entertainment value for the owner of the moniker and/or others?

Now, I don’t condone the googlebombing and outing of the female Does in the XOXO case, and I think they will get what’s coming to them for causing damage to REAL law students, but I believe some of them just made some stupid comments, not directed at any one person, all in the name of acting and entertainment.

If Brad Pitt starred in a movie, playing a role as a racist asshole, that’s fine. What’s the difference? Teh interwebz should allow for acting without the formal title of “actor.” (source)

This seems like a valid point. As the court noted in Reno v. ACLU:

Through the use of chat rooms, any person with a phone line can become a town crier with a voice that resonates farther than it could from any soapbox. Through the use of Web pages, mail exploders, and newsgroups, the same individual can become a pamphleteer. As the District Court found, “the content on the Internet is as diverse as human thought.

If that is the case, then why can’t everyone also be an actor? I follow a few chat boards, and I do enjoy waiting for the next hilarious post by “Creepy Old Guy” or “Pale Blue Dot,” and I am certain that the real-life people behind these monikers are nothing like their online personas. And, I don’t expect them to be.