Note for the Legal Satyricon Blog: Marc Randazza on Alex Jones’s defamation case

September 11, 2018

marc at infowars August 2nd

Marc Randazza is protecting the rights of Alex Jones, a host on InfoWars and a journalist.

Alex Jones faces several defamation lawsuits in different states filed by the families of victims of the Sandy Hook Elementary School massacre. Alex Jones at one point questioned the official narrative of the story, but now believes the shooting happened.

“Even though overwhelming – and indisputable – evidence exists showing exactly what happened at Sandy Hook Elementary School on December 14, 2012, certain individuals have persistently perpetuated a monstrous, unspeakable lie: That the Sandy Hook shooting was staged, and that the families who lost loved ones that day are actors who faked their relatives’ deaths,” the suit filed by lawyers from the Koskoff Koskoff & Bieder law firm claims, reports Connecticut Law Tribune.

Marc Randazza is defending Alex Jones in Connecticut.

“If you are a First Amendment lawyer and you hesitate in defending someone because of allegations of what they said, then you are not a First Amendment lawyer,” Randazza said.

Recently, Marc Randazza appeared as a guest on Alex Jones’s show InfoWars to discuss First Amendment issues. Randazza and Jones discussed a plethora of topics, including defamation lawsuits, free speech rights violations, and the growing impact of censorship by social media companies.

“You see this with people on the right being systematically ‘no platformed’, not just from media sites, but from YouTube, from Facebook, from Twitter and now from PayPal and Stripe. If any company decides that it doesn’t like the kind of thing you have to say, then you are off.”

Now, Twitter, YouTube, Facebook, Apple, LinkedIn, Spotify, Stitcher, and Pinterest have banned Alex Jones and InfoWars. How does this ban affect freedom of speech and the First Amendment rights of US citizens? Marc Randazza shared his opinions on the ban here:
https://www.mediamatters.org/research/2018/08/06/empire-strikes-back-right-wing-media-defend-alex-jones-after-infowars-banned-several-major-platforms/220912


Incitement

May 5, 2015

“If you protest, you’re just inciting the police to shoot you, so what do you expect?”

Pretty stupid, huh?

How about, “if you don’t want people to protest, then don’t treat them in a way that they feel like they need to protest.”

Same shit with drawing Mohammed.

If you don’t like people drawing Mohammed, perhaps you shouldn’t incite them to do so by reacting so negatively about it.

Drawing Mohammed is now not only permissible but (I think) absolutely goddamned necessary. It is necessary to defy those who would stifle debate with violence.

The winner of the "Draw Mohammed" contest.

The winner of the “Draw Mohammed” contest.

Do I like offending Muslims? No. Not at all.

I thought, for example, that “Piss Christ” was fucking stupid. I still think it is fucking stupid. The only thing that gives “Piss Christ” any value, to me, is the fact that it inspired calls for censorship.

But, nobody ever got killed over it. Christians moved on.

If anyone ever killed someone over “Piss Christ”, I’d be peeing on crucifixes like it was an Olympic sport.

Draw Mohammed. Spread pictures of Mohammed. They’ve now made it an imperative.


I DECLARE CONFIDENTIALITY!

November 4, 2014

You remember that episode, where Michael Scott declares bankruptcy?

Keep that in mind for this lesson, kids.

This happens to all of us, from time to time. A lawyer sends you a letter with some threatening language on it that he thinks accomplishes his goal of making it “confidential.” You know, like this:

CONFIDENTIAL LEGAL NOTICE
PUBLICATION OR DISSEMINATION IS PROHIBITED

The correct legal response is “suck my ass” or whatever you want to say. Ok, fine, how about “your point is invalid”. Let’s go with that. It is nicer, after all. And I’m all about being nice.

Now here’s one thing you can rest assured of: If someone puts that foolishness on their letter, it is because they’re afraid of that letter getting out there. They can’t possibly have confidence in what’s in it. Look, I write a letter, I expect that it might wind up getting slapped on Simple Justice, with Greenfield making fun of it. Even then, I can’t seem to catch every typo. But you know what? If my name is on it, you can bet your ass that I’ll own it.

And here’s why you can make the chucklefuck who signed YOUR letter own it by publishing the shit out of it, if you want.

For starters, saying “This letter constitutes confidential legal communication and may not be published in any manner.” is about as legally compelling as Michael Scott yelling “I DECLARE BANKRUPTCY.” Lawyers do not have magic powers that turn letters into confidential communications. You’re more likely to find a lawyer who can turn water into funk than a lawyer who has the magic spell to make a letter confidential. Sure, there might be some rules that make them inadmissible for certain purposes in litigation. But, you wanna share that letter? Go right the fuck ahead. Unless you’ve agreed to confidentiality, it ain’t confidential.

When I get one, I usually email the other guy and say “I’m not going to respect your request for confidentiality.” I give them a chance to support their position. When they don’t, I ask them if they want to give me something in exchange for confidentiality. So far, no takers.

Then, they realize “holy flaming peckerballs, this Randazza character can see right through the I DECLARE CONFIDENTIALITY trick! Randazza has spell capability? FUCK, he’s not a fighter, he’s a goddamned level 9 Ranger, and he’s got Druid spells! HE JUST CAST THE ‘SEE THROUGH BULLSHIT’ SPELL!!!!!

I know, it's my intellectualize proprietary res judicata!

I know, it’s my intellectualize proprietary res judicata!

So then they try again…

Aha, smart ass. That letter is COPYRIGHTED! I hereby throw the spell of Title 17!

Bush. League. Shit.

If someone pulls that on you, they’re even more full of shit than the guy who just tries the I DECLARE CONFIDENTIALITY spell.

Dumbass rolls a 2.

Here’s why:

It is no secret that the film, The People vs. Larry Flynt is one of my favorite movies of all time. It was required viewing in my classes, back when I did the lawprof thing. New hires need to watch it at my firm. You need to watch it.

Most of my readers are fully aware of the Supreme Court case depicted in the film. However, the lesser known case, mentioned for all of 30 seconds in the film, is the Hustler v. Moral Majority countersuit.

In that case, Jerry Falwell took the “Jerry Falwell Talks About His First Time” Campari parody and sent it to his Moral Majority minions — soliciting donations. Falwell took the entire copyrighted work and used it for a blatantly commercial purpose.

One of Falwell’s top executives conceded that the inclusion of a copy of the ad parody was part of a “marketing approach” to fund-raising, and the court can safely assume that this strategy involved encouraging the faithful to donate money. Hustler v. Moral Majority, 606 F. Supp. 1526, 1534 (C.D. Calif. 1985).

However, the court also found that he was not using the ad to elicit support for purely commercial gain, but even if he was, this did not dissolve his fair use defense.

[T]he court must also consider whether “the alleged infringers copied the material to use it for the same intrinsic purpose for which the copyright owner intended it to be used.” Marcus, 695 F.2d at 1175; Jartech, Inc. v. Clancy, 666 F.2d 403, 407 (9th Cir.), cert. denied 459 U.S. 879, 74 L. Ed. 2d 143, 103 S. Ct. 175 (1982) (same); see Italian Book Corp. v. American Broadcasting Companies, 458 F. Supp. 65, 70 (S.D.N.Y. 1978) (fair use generally sustained if defendant’s use not in competition with the copyrighted use). Under this principle, defendant’s use is more likely to be considered fair if it serves a different function than plaintiff’s.

In distributing the parody Falwell evidently meant to provoke the anger of his followers and to comment on the level of obscenity in the work.

The C.D. of California also pointed out portions of the Copyright Act’s legislative history, upon which a re-poster of a demand letter can rely:

The court discerns additional support for Falwell’s position in the legislative history to section 107. The House Report states: “When a copyrighted work contains unfair, inaccurate, or derogatory information concerning an individual or institution, the individual or institution may copy and re-produce such parts of the work as are necessary to permit understandable comment on the state-ments made in the work.” House Report, supra, at 73. It would thus be consistent with congressional intent to find that Falwell was entitled to provide his followers with copies of the parody in order effectively to give his views of the derogatory statements it contained.

Accordingly, when a law firm sends you a cease and desist letter accusing you of illegal activity, you can use that letter to provide your own supporters with copies of it in order to effectively give your own views on the issue — and to gather support for your cause. And… to make fun of that shit (because making fun of buffoons is classic fair use)

The legal landscape for I DECLARE CONFIDENTIALITY gets even more gloomy as we continue to read the Hustler case. The First Amendment rears her sexy pouty slutty face. (Yes, I want to bang Lady Liberty. Its a fetish. Constitutional cosplay anyone?)

First amendment considerations also enter into the court’s assessment of the purpose and character of defendants’ use. Although the first amendment does not provide a defense to copyright infringement, when an act of copying occurs in the course of a political, social or moral debate, the public interest in free expression is one factor favoring a finding of fair use. See Keep Thomson Governor Committee v. Citizens for Gallen Committee, 457 F. Supp. 957, 959-60 (D.N.H. 1978) (political committee’s use of a portion of rival candidate’s musical composition amounted to fair use in light of public interest in full debate over election and absence of injury to plaintiff). Cf. Robert Stigwood Group Limited v. O’Reilly, 346 F. Supp. 376, 383-84 (D. Conn. 1972), (priests’ un-authorized copying of rock opera, “Jesus Christ Superstar,” was not fair use where facts did not support defendants’ contention that their performance was counterattack to original’s “perverted” version of the Gospel), rev’d on other grounds, 530 F.2d 1096 (2d Cir.), cert. denied, 429 U.S. 848, 50 L. Ed. 2d 121, 97 S. Ct. 135 (1976).

Similarly, anyone who receives a cease and desist letter, from any lawyer (including me) can certainly claim that there is a debate at hand. Without the debate, there would be no complained-of statements or actions. It does not take Justice Brennan to see the First Amendment protection inherent in the republication of a demand letter in this context.

The purpose of copyright is to create incentives for creative effort. Even copying for noncommercial purposes may impair the copyright holder’s ability to obtain the rewards that Congress intended him to have. But a use that has no demonstrable effect upon the potential market for, or the value of, the copyrighted work need not be prohibited in order to protect the author’s incentive to create. The prohibition of such non-commercial uses would merely inhibit access to ideas without any countervailing benefit. Sony Corp. v. Universal City Studios, 104 S. Ct. 774, 793 (1984)

Under the “harm to the market for the original” prong of fair use, if the defendant’s use would tend to diminish sales of the plaintiffs work, then the factor can count against the defendant. However, that only applies if it would supplant the marketplace for the original. For example, if I copied a demand letter and used it as my own, then I might be committing copyright infringement. On the other hand, if I use the demand letter to ridicule the author, and the result of that ridicule is that consumers form the opinion that perhaps it would not not be a wise choice to select that lawyer to represent them, that is protected speech.

Let us return to Hustler v. Falwell:

The court has carefully considered all the evidence placed before it in light of the factors set out in section 107. It concludes that the “‘equitable rule of reason ‘ balance,” Sony Corp., 104 S. Ct. at 795, tilts sharply in favor of a finding of fair use. Any other result would mean applying the copyright laws in an inflexible manner and ignoring fundamental considerations of fairness. The ad parody was a satire about Falwell. He was entitled to use it as he did.

Exactly. The cease and desist is an instrument of attack upon the recipient. Any court that would find that this is copyright infringement should be reversed or impeached.

Okay counselor, but do you have a case that is exactly on point?

As a matter of fact, I do.

In Online Policy Group v. Diebold, the Northern District of California held that “fair use is not an infringement of copyright.” This is a slight tilt from the more common “fair use is an affirmative defense” logic. The N.D.Calif. held that the copying of the copyrighted materials (Diebold email archives) was so clearly fair use that “[n]o reasonable copyright holder could have believed that [they] were protected by copyright.” The court in that case held that a DMCA notice and take down was defective and that the sender was liable for material misrepresentation. § 512(f) FTW.

Conclusion

In short, while this is not legal advice, I’d say that if you want to reproduce a cease and desist letter as an act of self-defense or criticism, you should feel comfortable that the fair use defense will back you up.

And if you are the author of a cease and desist letter, don’t write anything that you don’t want the entire world to see.

Bottom line, no court has ever held I DECLARE CONFIDENTIALITY to be valid, nor has any court supported the “DON’T MAKE FUN OF ME BECAUSE COPYRIGHT” position – but an undisturbed case, relying on mountains of precedent, refutes it.

Lena, meet Barbara.

Lena, meet Barbra.

So with that, here’s a really stupid demand letter from Lena Dunham’s attorneys. It isn’t just dumb because it tries the aforementioned tricks — but substantively, dood… really? You’re supposed to be a better lawyer than that.

Short version of the story: Lena Dunham wrote a book in which she arguably wrote about doing some sketchy shit with her little sister. Truth Revolt wrote about it. The quotes from the book back up the Truth Revolt article. Dunham got all snippy about it. (source)

Yeah, that was pretty fucking stupid.

Its not stupid that she did it. She was a child. Ok. I can live with that. Its not even stupid that she wrote about it. Respect to her. (Ok, not really, book sounds like a piece of shit) But, what the monkeys-eating-their-own-feces-fuck was she thinking in authorizing a law firm to make a stink about it? Stupid. Well, unless they had a meeting and said “hey, Lena, want us to totally fiddle-fuck you by making you look like an asshole? Well then, have we got a plan for you!” If that happened, then GENIUS!

This article constitutes confidential legal communication and may not be published in any manner.

(just kidding)


How to cite to Walter Sobchak

October 11, 2014

If you don’t know what the deal is with prior restraint, here, watch:

There. Simple. Right?

THE SUPREME COURT HAS ROUNDLY REJECTED PRIOR RESTRAINT!

I wish I could just submit that clip to the next judge who even considers granting one. Just hold up a chromebook with that on it, play it, drop it on the floor, and walk out.

Dudeists have known this since 1998, and even most Dudeists were a bit late to the party.

I suppose that should not complain about misguided souls trying to get prior restraints.

If they stopped, I might actually have to find a less enjoyable way to make a living than being able to stand there with my arm around the Constitution, channelling Walter Sobchak. There is not much more career-choice-affirming than that.

Nevertheless, one after the other, they keep on coming — defamation plaintiffs who think that they’ve found the magic bullet that gets them a prior restraint. Hell, sometimes they even convince judges to grant them – which is even more awesome, because it then gets me a chance to get an appellate decision slapping it down.

In fact, I secretly hope that I will lose every prior restraint argument before the trial court. In 99% of those cases, the judge should look at the plaintiff and say “are you out of your fucking mind? Your motion is denied. THE SUPREME COURT HAS ROUNDLY REJECTED PRIOR RESTRAINT!”

Well what fun is that? I guess it would be fun as all hell if the judge actually did that.

But, when they get slapped down for being dumb, it helps get the word around to other judges who haven’t heard about this new thing called The First Amendment. I Each time a judge gets reversed for granting a prior restraint – which is exactly every fucking time unless the speech is about secret troop movements, it could help the next dumbass who managed to get elected to the bench. It could also help lawyers with this other new thing called “client control.”

I, myself, represent an occasional defamation plaintiff or two. Plaintiff’s side cases can be fun. But, they always start with the discussion about prior restraint.

The conversation that goes sorta like this:

Client: “I want a preliminary injunction in my defamation case.”

Me: “Wrong country, dude.”

Client: “Come on, at least try

Me: “FOR YOUR INFORMATION, THE SUPREME COURT HAS ROUNDLY REJECTED PRIOR RESTRAINT! So, no. No. No. No. I’m not even gonna fucking try. You know why? Because it is stupid. Stupid. Stupid. Stupid. I may not be the smartest lawyer in the world, but I’m not stupid enough to seek a prior restraint. You want an injunction, go hire another lawyer who is willing to look like an idiot and waste your money. After he gets his ass handed to him, come back and I’ll handle your case competently, not like the fuckwit that you finally arrive at after you get to the bottom of the barrel, and then dig your way through the wood to the other fucking side of the barrel, now shut the fuck up about an injunction or get out of my fucking office and take your retainer check with you!

MARK IT ZERO!”

Client: “Ok, ok… just take it easy, man.”

Me: “I’m perfectly calm, dude.”

Client: “Just take it easy.”

Me: “Calmer than you are.”

Now on the other hand, when I get a defense case where there is a prior restraint? Then I get all happy. The first draft of my opposition inevitably has the Walter Sobchak quote in it. But, it always gets taken out. Citing to a fictional character just doesn’t seem like the right call when you’re making a serious point.

The Big Lehrmann

The Big Lehrmann

Not anymore.

Friends, Americans, Dudeists: We have arrived. Justice Debra H. Lehrmann of the Texas Supreme Court gave footnote 7 in Kinney v. Barnes, 57 Tex. Sup. J. 1428 (Tex. 2014).

The U.S. Supreme Court has long recognized that “prior restraints on speech and publication are the most serious and the least tolerable infringement on First Amendment rights.” … This cornerstone of First Amendment protections has been reaffirmed time and again by the Supreme Court, this Court, Texas courts of appeals, legal treatises, and even popular culture(7). (citations and other footnotes omitted)

And that “7” brings us to this… get a handkerchief, because you’re gonna weep.

The Big Lebowski (PolyGram Filmed Entertainment & Working Title Films 1998) (“For your information, the Supreme Court has roundly rejected prior restraint.”).

Now, of course, The Big Lehrmann (as she shall now be known) can get away with citing it that way. But, I can’t see a trial court in Muskegon, Des Moines, or even Los Angeleez going for that. But, The Big Lehrmann now gives us the respectability and acceptance that Constantine once gave to the early Christians.

So now, I’ll tell you how to cite this. And before you trot out the bluebook, fuck the bluebook.

The next time you are arguing against a prior restraint, this is how you cite to the wisdom of Sobchak:

Kinney v. Barnes, 57 Tex. Sup. J. 1428 at n.7, (Tex. 2014) (citing SOBCHAK, W., THE BIG LEBOWSKI, 1998).

This affects all of us man.

Our basic freedoms!

—-

UPDATE: I personally use the “small caps” option when citing. But, wordpress does not seem to have that option.

Related: The post that inspired this one, How to cite to Buzz Lightyear.


Judge Admonishes Expert Witness – Expert Witness Sues Blogger Who Reported On It

April 17, 2014

By Marc J. Randazza

When a New York Supreme Court Judge told Dr. Michael Katz, the medical expert for the defense in a personal injury case, that he was lying about the medical examination he conducted, Dr. Katz knew the judge was wrong. So, of course, Dr. Katz responded as any aggrieved professional would – he filed a lawsuit. Because suing the judge who called him a liar would be an exercise in futility, Dr. Katz did what he believed to be the next best thing: He sued a blogger who covered the case — a blogger who reported on the judge’s comments, as enshrined in the public record.

Dr. Katz’s complaint is the latest in a long line of sad examples why New York – and every other state – needs a meaningful Anti-SLAPP statute. The 65-page, 338-paragraph long complaint, seeking $40,000,000 in damages, is like something out of the twilight zone. Dr. Katz’s claims are vague and overbroad, including defamation (with particular emphasis on “defamation by implication” – see paragraphs 247-248), injurious falsehood, tortious interference with contract, tortious interference with business advantage, and prima facie tort – a claim that litigants throw against the wall in New York in hopes that it will stick when all their other allegations fail.

Dr. Katz’s complaint makes a headcharge at the fair report privilege, one of the fundamental protections that the First Amendment provides to citizens and the media – including bloggers. New York specifically memorializes this protection in Civil Rights Law § 74, precluding any cause of action for defamation for a “fair and true” report of “any judicial proceeding” or “other official proceeding.”

The blog posts authored by Eric Turkewitz and Samson Freundlich, his co-defendant, are reports of shocking judicial proceedings; in fact, they link to the transcripts of the proceedings themselves. But, linking to the source of your facts is enough to get you out of defamation trouble. See Adelson v. Harris.

So, okay, Civil Rights Law § 74 only applies to reporting on the proceedings – what about statements during the proceedings? Once again, Dr. Katz needs to check his privilege. New York’s litigation privilege provides an “absolute privilege” to parties, attorneys, and witnesses for their statements in the course of a judicial proceeding, “notwithstanding the motive with which they are made, so long as they are material and pertinent to the issue to be resolved in the proceeding.” Bisogno v. Borsa, 101 A.D.3d 780, 781, (2d Dept. 2012), citing Kilkenny v. Law Off. of Cushner & Garvey, LLP, 76 A.D.3d 512, 513 (2d Dept. 2010). Even if in the wildest of alternate realities the defendants intentionally defamed Dr. Katz, their statements during the proceeding would still be protected so long as they “may possibly be pertinent” to the underlying litigation. Lacher v. Engel, 33 A.D.3d 10, 13 (1st Dept. 2006).

Setting aside these privileges and getting down to the truth of the matter, which is an absolute defense to defamation, this litigation is about Dr. Katz’s self-inflicted injuries. After all, it was Dr. Katz’ (testimony at 6:8-10)that the Court opined upon. This testimony, in particular, in which he can’t remember how long a medical examination took.

But there’s a video…

Based on the discrepancy between Dr. Katz’s claims and his actions, Judge Hart was not pleased. As Judge Hart said, “I cannot blame Dr. Katz for the ills of the world, but I can blame him on this case.” (source at 6:18-20) But, now there is another case where Dr. Katz is to blame.

If Dr. Katz dared to file suit in Nevada, California, Oregon, or a growing number of other states with meaningful anti-SLAPP statutes, his litigation campaign would likely end post haste. It would be thrown out of court, and the judge would bruise his ego in the shape of the defendants’ attorneys fees and costs. But this is not California, or even Nevada – it is New York. Without meaningful relief, we are left only with the disinfectant of cleansing light shone upon those who file such censorious lawsuits.

Of all the things mentioned about this complaint, by far the most shocking is that it was not filed pro se (i.e., filed without an attorney). In fact, it was filed by John Sullivan, an experienced partner with Ruskin Moscou Faltischek P.C., an astonishingly large firm to take on such a questionable case. The firm should have known better, and had higher regard for the First Amendment. On the other hand, pecunia non olet? For an angry Doctor to file this lawsuit on his own would have been foolish, but comprehensible on some level. For an attorney to sign off on this frontal attack on free comment upon the public record – and ultimately, the public record itself – goes beyond that. Dare I use the adjective — rakofsky-esque?

One thing is certain – this case is doomed to fail. Another thing is certain – this case will not be to Dr. Katz’ advantage. Anyone who was considering him as an expert witness will now be treated to a lawsuit-amplified bullhorn reading of what the judge thought of him and his testimony.

Poorly played, Dr. Katz.


Bloggers are protected as “Media” – Comins v. VanVoorhis (Chapter 2)

April 13, 2014

It’s an all-too-common scenario: A blogger criticizes someone online, and then gets sued for his statements.   But two things make this case unique: First, the plaintiff sued because of the blogger’s characterizations of him shooting two dogs at close range; second, the defendant blogger was in Florida – and thus protected by Fla. Stat. § 770.01. (I am proud to have represented Mr. VanVoorhis, the blogger in this case).

Florida’s pre-suit notice statute, § 770.01, requires defamation plaintiffs to alert defendants to the allegedly defamatory material before filing suit. The statute reads, in its entirety:

770.01 Notice condition precedent to action or prosecution for libel or slander.

Before any civil action is brought for publication or broadcast, in a newspaper, periodical, or other medium, of a libel or slander, the plaintiff shall, at least 5 days before instituting such action, serve notice in writing on the defendant, specifying the article or broadcast and the statements therein which he or she alleges to be false and defamatory

Florida’s appellate courts have interpreted this very strictly. Essentially, the statute doesn’t let you sue someone (as long as they are covered by the statute) unless you meet its conditions. It has a tendency to relieve courts of the burden of at least some frivolous defamation litigation, because the statute requires a defamation plaintiff to focus his attention on what, precisely, he finds to be defamatory and to articulate his concerns in writing. Theoretically, we must presume that such an exercise generates at least some self-reflection by parties and attorneys who might otherwise file unsupportable SLAPP suits.

The fact that 770.01 applies to newspapers and periodicals has never been challenged. When the legislature added “other medium” to the statute in 1976, I think it was being forward-thinking in trying to make the statute broad enough to embrace new media that might come into being. I always felt that “other medium” was clear enough. The Internet is a “medium,” so why shouldn’t 770.01 protect bloggers? We raised that issue at the trial court in this case, and the court gave us a pretty succinct ruling in our favor. (Trial Court Order).

Comins appealed, and he took the position that the words “other medium” did not extend to the Internet, and even if it did, it would only apply to news media. (Appellant’s brief at 14-15). Comins further argued that even if it extended to the Internet, Mr. VanVoorhis was not a “media defendant,” since he was not “a journalist.”

We argued that the language “or other medium” includes the Internet, and most certainly includes blogs. (Answer Brief). In fact, we took the position that the statute should apply to everyone, media, non-media, or anyone else. (The court did not hold that broadly). However, we also argued that no matter how the court looked at the scope of 770.01, it should apply to our client, because he was a “media defendant,” despite the fact that he “only” published on a blog.

The essential point, which the appellate court agreed with, is that a “journalist” is not something you are but is rather something that you do. Mr. VanVoorhis’ blog was journalism, and thus he was considered to be a “media defendant.” In agreeing, the appellate court gave us some wonderful language supporting the proposition that bloggers serve an essential function.

[I]t is hard to dispute that the advent of the internet as a medium and the emergence of the blog as a means of free dissemination of news and public comment have been transformative. By some accounts, there are in the range of 300 million blogs worldwide. The variety and quality of these are such that the word “blog” itself is an evolving term and concept. The impact of blogs has been so great that even terms traditionally well defined and understood in journalism are changing as journalists increasingly employ the tools and techniques of bloggers – and vice versa. In employing the word “blog,” we consider a site operated by a single individual or a small group that has primarily an informational purpose, most commonly in an area of special interest, knowledge or expertise of the blogger, and which usually provides for public impact or feedback. In that sense, it appears clear that many blogs and bloggers will fall within the broad reach of “media,” and, if accused of defamatory statements, will qualify as a “media defendant” for purposes of Florida’s defamation law as discussed above.

There are many outstanding blogs on particular topics, managed by persons of exceptional expertise, to whom we look for the most immediate information on recent developments and on whom we rely for informed explanations of the meaning of these developments. Other blogs run the gamut of quality of expertise, explanation and even- handed treatment of their subjects. We are not prepared to say that all blogs and all bloggers would qualify for the protection of section 770.01, Florida Statutes, but we conclude that VanVoorhis’s blog, at issue here, is within the ambit of the statute’s protection as an alternative medium of news and public comment.

The presuit notice requirement of section 770.01 applies to allegedly defamatory statements made in such a public medium the purpose of which is the free dissemination of news or analytical comment on matters of public concern.(Op. at 23-24)

In other words, if a blog is a legitimate news source, it is just as protected as if it were The New York Times.

But, the court did not go so far as to say that everyone gets protection under the statute, and not every blog is a member of the media. There are certainly blogs out there that have different missions, and those would not be covered.

This is a great decision for bloggers, especially those who might find themselves under the threat of a defamation suit in Florida.

As a practice note, I have often said that filing a defamation claim in Florida without sending a 770.01 notice should be per se legal malpractice. The simple exercise of sending a letter, where you articulate your legal theory, should be no great burden on any plaintiff. This case should make that clear. We certainly believed (and argued) that the defense should have prevailed on the merits. See Answer brief at 36-68. However, neither the trial court nor the appellate court ever looked at the merits — since the claims were barred completely by the plaintiff’s failure to comply with the simple exercise of sending a pre-suit letter.

Conversely, if you’re defending a blogger in Florida, do not fail to raise the 770.01 issue at the pleading stage. While it may be more satisfying to prevail on the actual merits of the case, this route is a lot easier and cheaper than a trial on the merits.

Case Documents:

    Comins Appellant Brief

    Van Voorhis Answer and Cross-Appeal Brief

    Comins’ Reply and Cross-Appeal Opposition

    Van Voorhis’ Cross-Appeal Reply Brief

    Appellate Court Opinion


Law Enforcement Priorities

April 13, 2014

I’ve been involved in the debate over whether we should criminalize “revenge porn.” As much as I despise the practice, I don’t agree with new criminal laws to punish it. In fact, I just spent some time on a panel at Stanford Law School, in the company of three people I greatly admire — one of whom (Attorney Erica Johnstone — one of the founders of “Without My Consent“) is a strong proponent of enacting new criminal laws to punish “Non-Consensual Porn.”

We had a very respectful debate over our differing opinions. During that discussion, I shared one of my rationales — that law enforcement just won’t give a shit. I’ve personally spoken with prosecutors about revenge porn cases in which the victim is underage — so a bona fide child pornography prosecution, wrapped up in a nice little bow for them. All they need to do is go grab the perpetrator.

The reaction?

“We just don’t have the resources to go after every one of these guys.”

Ok, fair enough. A 14 year old girl who had her life thrown upside-down. A child who expected that the state might give a shit about her. She’s not a priority. I’m not going to shit on law enforcement for making that judgment call, although that might seem to be a proper reaction. Lets look at it this way — that 14 year old girl had her life thrown upside down, but somewhere maybe, there’s an 8 year old girl tied up in a basement, and they need the resources they have in order to go save her. Fair enough?

But then, if that’s our rationale for ignoring the 14 year old, how are we ever going to convince a detective or a prosecutor to go after the ex-wife of a 35 year old guy who might wind up on an Non-Consensual Porn website, because his ex got pissed off at him and submitted some cock shots to the latest NCP site?

We aren’t.

When I get interviewed about this kind of thing, I often mock our law enforcement priorities – stating “If there were some underage kids drinking, or an old lady smoking pot for her glaucoma, they’d send in the troops. But, not for this kind of thing.”

Yeah… exactly. Swat teams for small amounts of marijuana, which never hurt anyone. Meanwhile, the kids I represent in civil cases can’t get law enforcement to give a shit about them, because resources.

You know, resources spent going after middle aged women who are buying plant food – because sometimes you might catch someone with a little bit of weed. (One of many sources)


Fourth Circuit Delivers First Amendment Ass-Kicking

June 28, 2013

This is not a Star Trek order.  There are no pithy jokes here.  There is, however, a shocking exposé of just how insidious the government can be in coercing silence when you speak out against outdated, incorrect, and even dangerous “conventional wisdom.”

Cooksey v. Futrell, et al., Case No. 12-2084, 2013 WL 3215240 at *1 (4th Cir. June 27, 2013).

Steve Cooksey ran a blog advocating a low-carbohydrate, high-protein diet.  This diet and its permutations are generally known as known as a “paleo,” “primal” or “caveman” diet, and is based on eliminating historically recent additions to the human diet, such as processed grains.  This more or less inverts the USDA’s food pyramid (or triangle, depending on what generation you are), putting meat at the base of the pyramid with rough, leafy greens, and treating carbohydrate-laden foods like bread as less important.  Like anything people feel strongly about, the ambassadors of the paleo diet can be abrasive and annoying.  But, it works.

Cooksey’s backstory is remarkable, but surprisingly common among health advocates.  A Type II (adult-onset) diabetic, Cooksey was rushed to a hospital on the verge of a coma in 2009.  His dietitians advised him to eat a diet high in carbohydrates.  Cooksey, however, investigated matters himself and arrived at a diet high in protein and low in carbohydrates.  His blood sugar normalized and he was able to stop using insulin.  With a combination of diet and exercise (rather than, say, “fat acceptance”), Cooksey lost 78 pounds and felt better than ever before.

Paying it forward, Cooksey opened his blog, diabetes-warrior.net, in early 2010.  Cooksey used the blog to talk about his diet and lifestyle changes. He even included a disclaimer that he was not a licensed medical profession and had no medical qualifications – similar to how legal bloggers are quick to reminder readers that nothing they say online is legal advice.  The overarching theme of Cooksey’s blog was that high-carbohydrate diets caused more diabetes.  During the months of December 2011 and January 2012, Cooksey’s blog had 20,000 unique visitors.

Then Cooksey made the mistake all new red-pill types do: He explained his views to a weak and deliberately helpless public.  In July 2012, Cooksey attended a nutritional seminar for diabetics.  The seminar’s speaker advocated a high-carbohydrate diet for diabetics; Cooksey responded by advocating a low-carbohydrate diet instead.  An attendee at the seminar was so “””offended””” that he or she reported Cooksey to the North Carolina Board for Dietetics/Nutrition (the “Board”), claiming Cooksey’s advocacy was actually the unlicensed practice of dietetics.  Under North Carolina law governing dietetics, only licensed dietitians may provide nutrition care services, which have a broad definition that includes:

a. Assessing the nutritional needs of individuals and groups, and determining resources and constraints in the practice setting.
b. Establishing priorities, goals, and objectives that meet nutritional needs and are consistent with available resources and constraints.
c. Providing nutrition counseling in health and disease.
d. Developing, implementing, and managing nutrition care systems.
e. Evaluating, making changes in, and maintaining appropriate standards of quality in food and nutrition services.

Under North Carolina law, each and every act of unlicensed practice of dietetics is a separate misdemeanor.

The Board contacted Cooksey.  It told him that he would need to change his website.  It also told him that it was statutorily entitled to get an injunction against him.  Cooksey, fearing civil action, reluctantly complied with the Board’s initial demands to change his website, removing parts that might have been considered “advice” to visitors.

The Board told Cooksey it would review his website and tell him what he could and couldn’t say without a dietitian’s license.  After reviewing Cooksey’s site, the Board got back to him with pages and pages of comments.  The Board’s message was clear: Fix it – or else.  Again, Cooksey acquiesced – this time in fear of civil and even criminal penalties.  Despite not communicating with the Board, it nevertheless sent Cooksey a letter, noting that he had made the requested changes, and tacitly warning Cooksey that it would “continue to monitor the situation.”

After receiving this letter, Cooksey filed suit under 42 U.S.C. § 1983 for the Board’s actions chilling his First Amendment protected speech.  He also sought a declaratory judgment that North Carolina’s statutes were unconstitutional both facially and as-applied.  The Board moved to dismiss under Fed. R. Civ. P. 12(b)(1) for lack of standing and lack of ripeness, and 12(b)(6) for failure to state a claim.  The district court granted the motion, holding that “voluntarily removing parts of one’s website in response to an inquiry from a state licensing board is not a sufficient injury to invoke Article III standing.”  The court also found that Cooksey was not subject to actual or imminent enforcement of the Board’s draconian laws.

At first blush, it seems that the district court took an unusually charitable view toward the Board’s actions.  Many who read this blog would disagree with the outcome.  Cooksey disagreed.  And so, too, did the United States Court of Appeals for the Fourth Circuit.

The Fourth Circuit’s panel – which included former United States Supreme Court Justice Sandra Day O’Connor sitting by designation – reviewed the dismissal de novo, or anew (conducting a new, independent analysis of the facts that were before the district court).  The Court of Appeals embarked on an analysis of justiciability with two old law school (and in one case, law practice) favorites, standing and ripeness.  The analysis is considerable, going on for many pages.  Some highlights are excerpted below:

On the question of standing:

In First Amendment cases, the injury-in-fact element is commonly satisfied by a sufficient showing of “self-censorship, which occurs when a claimant is chilled from exercising h[is] right to free expression.” Benham v. City of Charlotte, 635 F.3d 129, 135 (4th Cir. 2011) (internal quotation marks omitted).

However, this anticipated cannot just be speculative or the fruit of conjecture.  The appeals court quickly outlined how Cooksey’s case allowed him to have standing, largely due to the Board’s aggression:

In the present case, we not only have evidence of specific and — unlike NCRL — unsolicited written and oral correspondence from the State Board explaining that Cooksey’s speech violates the Act, but we also have a plaintiff who stopped engaging in speech because of such correspondence, and an explicit warning from the State Board that it will continue to monitor the plaintiff’s speech in the future. See J.A. 18 (Compl. ¶ 63-64) (Burill told Cooksey “that he and his website were under investigation” and that the State Board “does have the statutory authority to seek an injunction to prevent the unlicensed practice of dietetics.”); id. at 39 (red-pen review) (“You should not be addressing diabetic’s specific questions. You are no longer just providing information when you do this, you are assessing and counseling, both of which require a license.”); id. at 66 (Burill email) (“[W]e would ask that you make any necessary changes to your site, and moreover, going forward, align your practices with the guidance provided.”); id. at 105 (Burill letter) (“[T]he Board reserves the right to continue to monitor this situation.”). Therefore, we have no trouble deciding that Cooksey’s speech was sufficiently chilled by the actions of the State Board to show a First Amendment injury-in-fact.

The Board’s aggression was also helpful to Cooksey in showing a credible threat of prosecution.  From there, his complaint easily satisfied the requirements of causation – that his injury was caused by the conduct he complained of – and redressibility, which requires a non-speculative likelihood that his injury would be redressed by a favorable judicial decision.

Unfortunately, the opinion gave some daylight to the Board’s position.  If the laws the Board enforces are professional regulations that do not abridge the First Amendment, such as certain limited limitations placed on attorney speech by state professional conduct rules, then Cooksey may ultimately not prevail.  However, because that is question of the case’s merits – how the facts and the law mesh in court – rather than one of standing, or Cooksey’s ability to bring his claim to Court in the first place, this potential defense cannot keep Cooksey out of court (for now).

As for ripeness:

Much like standing, ripeness requirements are also relaxed in First Amendment cases. See New Mexicans for Bill Richardson v. Gonzales, 64 F.3d 1495, 1500 (10th Cir. 1995) (“The primary reasons for relaxing the ripeness analysis in th[e] [First Amendment] context is the chilling effect that potentially unconstitutional burdens on free speech may occasion[.]”). Indeed, “First Amendment rights . . . are particularly apt to be found ripe for immediate protection, because of the fear of irretrievable loss. In a wide variety of settings, courts have found First Amendment claims ripe, often commenting directly on the special need to protect against any inhibiting chill.” Id. (internal quotation marks omitted).

The Court then gave the Board a little more abuse for soiling its own bed.

In the same way, Cooksey’s claims present the question of whether the Act and actions of the State Board unconstitutionally infringe on Cooksey’s rights to maintain certain aspects of his website. No further action from the Board is needed: it has already, through its executive director, manifested its views that the Act applies to Cooksey’s website, and that he was required to change it in accordance with the red-pen review or face penalties.

In its conclusion, the court of appeals vacated the district court’s order dismissing Cooksey’s complaint and remanded the case for a proceeding on the merits.  The Board can always ask the Fourth Circuit to stay its mandate and grovel with thousands of others to be the 1% whose cert petition the Supreme Court grants.  If nothing else, it will buy them time.  Hopefully, this opinion will leave a mark on the Board and make abusive government entities everywhere think twice before making any “suggestions” to the lowly citizenry they benevolently manage.  Specifically for the Board, its bad dream just got another life, Freddy Krueger-style.

A closing thought: North Carolina does not have an Anti-SLAPP law – not even a mediocre one that could be made good, like Nevada’s (which, starting October 1, 2013, gets a nice octane boost).  While § 1983 claims allow prevailing non-governmental parties to seek their attorneys’ fees under § 1988(b), those fees are discretionary, while prevailing Anti-SLAPP fees are mandatory – and more expeditiously awarded.  While state law-based Anti-SLAPP laws do not always work as drafted in federal court, there is a serious question whether such a statute’s existence or use would have led to a different outcome without an appeal – or any litigation at all.


Nevada’s New Anti-SLAPP Law

June 25, 2013

Nevada's Anti-SLAPP law, freshly signed.

Nevada’s Anti-SLAPP law, freshly signed.

You may have noticed that the writing has been a bit slow as of late. Well, one of the things that has been taking our attention away has been an all-hands effort up in Carson City, working on getting a realanti-SLAPP law passed here in the Silver State.

We are proud to announce that the mission has been accomplished. Nevada officially has a new anti-SLAPP law it can be proud of.

For the last two years, the Legal Satyricon has been complaining about the inadequacy of Nevada’s existing anti-SLAPP law.  Notably, one judge suggested the possibility that the statute could be construed to only be used in lawsuits involving communications directly to a government agency, and the U.S. Court of Appeals for the Ninth Circuit ruled that the current statute did not allow for an immediate appeal of a special motion to dimiss.

Ever since I moved here in 2011, I’ve hoped to civilize Nevada with a meaningful anti-SLAPP law.

When Nevada’s legislative session commenced in February, the Randazza Legal Group team was a flurry of activity, drafting materials in support of a new Anti-SLAPP bill based on materials from throughout the country to present to the Legislature.  Rather than simply replicating the statutes in California, Washington, or Texas, though, the ultimate bill (SB 286) made specific, limited additions to broaden the scope of Nevada’s Anti-SLAPP statutes while maintaining innovative provisions within those laws that were uniquely Nevadan.

Marc Randazza and Nevada Governor, Brian Sandoval, with the freshly-signed Nevada Anti-SLAPP law.

Marc Randazza and Nevada Governor, Brian Sandoval, with the freshly-signed Nevada Anti-SLAPP law.

Armed with my dream statute in hand, I flew up to Carson City to present testimony before the Senate Judiciary Committee.  My testimony focused on the need for a stronger Anti-SLAPP statute in Nevada, and the harm to individuals and businesses done by the consumption of public and private resources on the litigation of dubious claims against First Amendment-protected speech.  The Senate Judiciary Committee, and later the entire Nevada Senate, approved of the bill.  I then testified before the Assembly Judiciary Committee in support of the bill.  Like the Nevada Senate, the Assembly Judiciary Committee and the entire Nevada Assembly passed the bill.  The entire Nevada legislature had agreed that it was time to enhance Nevada’s Anti-SLAPP statutes so that they would embrace – and protect – a broader range of Constitutionally protected expression.  On June 3, 2013, Nevada Governor Brian Sandoval signed the bill into law.  The changes will take effect on October 1, 2013. The main changes are discussed below.  The full text of SB 286 as enacted by Governor Sandoval can be found here.

Expands the Breadth and Scope of Protected Speech.  The new law expands protected conduct to include any “communication made in direct connection with an issue of public interest in a place open to the public or in a public forum,” so long as the statement is truthful or made without knowledge of falsehood.

Allows For an Immediate Appeal of a Denied Anti-SLAPP Motion.   The new law modifies NRS 41.650 so that a movant is immune from any civil action­ – not just liability – from claims arising from his or her protected speech, which allows for an immediate appeal.

Expedites Judicial Consideration of Anti-SLAPP Motions.  Under the new law’s changes, the time for a court to rule on a motion after filing is reduced to 7 judicial days from 30 after the motion is served upon the plaintiff.

Creates a $10,000 Stick to Deter Frivolous Claims.  In addition to allowing for a movant’s recovery of costs and attorneys’ fees, the bill amends NRS 41.670 to allow the court to discretionarily award a successful movant up to $10,000 in addition to his or her reasonable costs and attorneys’ fees.  This serves as a significant disincentive and warning for those who might wish to pursue censorious litigation.

Creates SLAPP-Back Provision to Prevent Frivolous Anti-SLAPP Motions.  The bill amends 41.670 so that a court denying a special motion to dismiss must award the claimant to successfully defeat the Anti-SLAPP motion his or her costs and reasonable attorneys’ fees upon finding that the Anti-SLAPP motion was “frivolous or vexatious.” I believe this is necessary, lest the Anti-SLAPP law become a barrier to justice for those with supportable claims.

Retains Key Elements From Nevada’s Existing Laws.  While the bill represents a massive change to Nevada’s Anti-SLAPP laws, Nevada’s existing statutes had a number of powerful provisions that were unique among Anti-SLAPP provisions are fortunately still intact.  The Nevada Attorney General, or the “chief legal officer or attorney of a political subdivision” in Nevada may still “defend or otherwise support the person against whom the action is brought.” NRS 41.660(1)(b).  SB 286 also retains the successful Anti-SLAPP movant’s right to bring a separate action against the defeated plaintiff for compensatory damages, punitive damages, and the attorneys’ fees and costs for bringing the new action.

These changes bring Nevada into line with California, Oregon, Washington, Texas, and the District of Columbia as having the most comprehensive and progressive Anti-SLAPP statutes in the nation.  I am proud of these changes and the effort my Randazza Legal Group team put into effecting this critical update to Nevada’s Anti-SLAPP statutes.  We all look forward to seeing this statute in effect.


The New Victorians Strike Campus Yet Again (VIDEO)

April 16, 2013
By Greg Lukianoff

While they are rightfully accused of being hyper-politically correct, college campuses these days sometimes seem downright Victorian. Take, for example, the case of Isaac Rosenbloom, a student whose quest to complete college so he could become a paramedic was nearly ended after he complained to another student about an assignment after class. Rosenbloom told his classmate that the grade he got on the assignment was “going to fuck up my entire GPA.” When his professor overheard him, she threatened the 29-year-old father of two with (I kid you not) “detention.” Rosenbloom was brought up under the charge of “flagrant disrespect of any person”—an actual offense at Hinds Community College in Mississippi.

Check out Isaac’s story in this new video.

One might think that such a ridiculous incident would quickly resolve itself as soon as the charges got in front of the university counsel. But one would be wrong. Horribly, horribly wrong. Ignoring cases like Cohen v. California (1971) and, even more on point, Papish v. Board of Curators (1973), the administration went ahead with a surreal hearing. Rosenbloom was found guilty of “flagrant disrespect,” given 12 “demerits,” and was no longer eligible for his Pell Grant, (which effectively meant expulsion for Rosenbloom). The university only backed down after my organization, the Foundation for Individual Rights in Education (FIRE), found a lawyer for Rosenbloom and secured a favorable settlement in July 2010.

Cases like this are not rare on campus. Indeed, just as the Isaac Rosenbloom case was ending, the perhaps even sillier swearing case of Jacob Lovell at the University of Georgia was just beginning (you can watch a video about his case here, complete with Lex Luthor allusions). As I pointed out last fall when I unveiled a video about a professor who vandalized a “free speech wall” in Texas because someone had written “fuck Obama” on it, if there is one thing that seems to unite the Right and Left on campus, it is that some subset of both groups really, really hate swearing. Because of this fact, unfortunately, campus administrators are too often able to get away with punishing students for cases that involve swearing.

I tried to call out this practice in my book Unlearning Liberty: Campus Censorship and the End of American Debate. While swearing is sometimes the purported justification for punishment, it is clear that in case after case students are not really being punished for swearing, they are being punished because they swore in the process of complaining about the university.

Lately it seems as though the “campus censors as Victorians” theme is popping up all over the country. Just last month one college in upstate New York banned a campus event involving a gay porn star, another college in New Mexico shut down the student newspaper after they produced an issue about sex, and in an ongoing saga, a professor at Appalachian State University was suspended after showing a graphic video that was critical of the adult film industry.

Today’s campus censors appear to be haunted by the spirit of Anthony Comstock, and they’re likely to have the same level of success in the long run that Comstock did. But in the meantime, these efforts to appease the uptight are doing real damage by harming discourse on campus, impoverishing the marketplace of ideas, and higher education just a little bit dumber.

Greg  Lukianoff is the president of Foundation for Individual Rights in Education (FIRE).  He is also the author of “Unlearning Liberty: Campus Censorship and the End of American Debate.”


Federal Circuit’s COCKSUCKER Decision Sucks

December 20, 2012

cork soaker

As many long-time readers know, Section 2(a) of the Trademark Act is one of my pet peeves. This is the section of the Trademark Act that gives pretty much unfettered discretion to a trademark examiner to deny a trademark registration on the basis that the mark itself is “immoral” or “scandalous.” The Federal Circuit just decided In Re Fox, in which it reaffirmed some very bad law, and in which it lacked the integrity to address some Constitutional fictions upon which most 2(a) denials are based.

“[n]o trademark by which the goods of the applicant may be distinguished from the goods of others shall be refused registration on the principal register on account of its nature unless it[] (a) [c]onsists of or comprises immoral, deceptive, or scandalous matter.” 15 U.S.C. § 1052.

One of the most absurd elements of a 2(a) denial is that the evidentiary standard is so open to abuse. An examiner may prove “immorality” or “scandalousness” by simply establishing that the mark is “vulgar.” In re Boulevard Entm’t, Inc., 334 F.3d 1336, 1340 (Fed. Cir. 2003). Essentially, if the examiner finds a single online dictionary or chat board where someone says “that’s vulgar,” then that is usually enough for the examiner, the TTAB, and the Federal Circuit.

So, another 2(a) denial is just a “ho hum” event. But, this portion of the opinion shows just how little respect the Federal Circuit has for Constitutional issues. I mean, come on guys, at least try and make it look like you didn’t just mail it in.

The prohibition on “immoral . . . or scandalous” trademarks was first codified in the 1905 revision of the trademark laws, see Act of Feb. 20, 1905, Pub. L. No. 58- 84, § 5(a), 33 Stat. 724, 725. This court and its predeces- sor have long assumed that the prohibition “is not an attempt to legislate morality, but, rather, a judgment by the Congress that [scandalous] marks not occupy the time, services, and use of funds of the federal government.” In re Mavety Media Grp. Ltd., 33 F.3d 1367, 1374 (Fed. Cir. 1994) (quotation marks omitted). Because a refusal to register a mark has no bearing on the applicant’s ability to use the mark, we have held that § 1052(a) does not implicate the First Amendment rights of trade- mark applicants. See id. (Op. at 2)

I find it outrageous not just because the court is wrong, but because the court was so glib and dismissive of the First Amendment.

Trademarks propose a commercial transaction; speech that proposes a commercial transaction is “commercial speech” and thus subject to First Amendment protection. Virginia State Bd. Of Pharmacy v. Virginia Citizens Consumer Council, 425 U.S. 748, 762 (1976). Trademarks convey messages about the type, cost and quality of the product or service associated with the mark. See Friedman v. Rogers, 440 U. S. 1, 11 (1979). The trademark is a tightly targeted bit of expressive activity that seeks to persuade a potential customer to choose one product over another, either due to the identification of goods or to the communicative element of the trademark itself.

Thus far, all USPTO decisions regarding the constitutionality of Section 2(A) rely upon the improperly decided case In re Robert L. McGinley, 660 F.2d 41 (Fed Cir. 1981).

McGinley is where we get the idea that since trademark applicants are still free to use the trademarks, then there is no abridgment of speech if your trademark is denied registration due to its content. However, this reasoning is simply shoddy and contrary to a body of First Amendment jurisprudence. For example, in striking down New York’s “Son of Sam” law, which prohibited criminals from profiting from writing books about their crimes, the Supreme Court held “[a] statute is presumptively inconsistent with the First Amendment if it imposes a financial burden on speakers because of the content of their speech.” Simon & Schuster v. New York State Crime Victims Bd., 502 U.S. 105, 115 (1991). In the Son of Sam case, the authors were still free to write, but were denied the financial benefits of their labors. That was the end of that law. This appears to completely dispense with the McGinley reasoning.

Bad Frog Brewery, Inc. v. New York States Liquor Authority, 134 F.3d 87 (2d Cir. 1998) analyzed a similar issue. In that case, the appellant sought to use a trademark of a frog giving the finger. The Second Circuit held that since trademarks are commercial speech, prohibition on use of so-called “offensive” trademarks did not advance the stated governmental purpose of protecting children from vulgarity or promoting temperance, nor was it narrowly tailored to serve that purpose. Not binding on the Fed. Cir., but I think that the Fed. Cir. is the wrong place to challenge McGinley. There is no indication that the Fed. Cir. will ever admit that it was wrong in McGinley, and every time it gets a chance, it doubles down.

Finally, there can be no clearer authority for the death of Section 2(a) than Lawrence v. Texas. (“The fact a State’s governing majority has traditionally viewed a particular practice as immoral is not a sufficient reason for upholding a law prohibiting the practice.”)

“Morality” is not a valid reason to confer or deny a governmental benefit – instead the government must articulate a reason why registration of a mark might be harmful, and then apply that reason to the particular circumstances at hand, in a narrow manner. The government has done none of this in this case, nor in any other 2(a) denial.

2(a) Delendum Est!


Sunshine is the best disinfectant – the Steubenville Rape Case

December 20, 2012

The mainstream media has noticed that something is amiss in Steubenville, Ohio. (Rape Case Unfolds on Web and Splits City).

And Jezebel gives credit where it is due — to a blogger who refused to let the story die. (We Wouldn’t Know About the Steubenville Rape Case If It Wasn’t for the Blogger Who ‘Complicated’ Things).

I won’t comment beyond my earlier post on the case, because I have been brought in to help defend the blogger.


It’s a Beautiful Thing, the Destruction of Words.

December 4, 2012

First Amendment BAMF The Foundation for Individual Rights in Education (“FIRE”) defends individual rights at American Colleges and Universities from the barrage of attacks on free speech and free expression. Every month, FIRE features an institution of higher learning that should be ashamed of itself for enacting a speech code that is, at best, terrible. This month’s honoree is the University of North Dakota (“UND”) for its delightfully well-written policy that defines harassment as:

[U]nacceptable behavior, which can range from violence and bullying to more subtle behavior such as ignoring an individual at work or study. It subjects an individual or a group to unwelcome attention, intimidation, humiliation, ridicule, offense or loss of privacy. It is unwanted by the recipient and continues after an objection is made.

Source.

Universities have long been thought to be the last gleaming hope of free thought and expression. It is also generally accepted that college campuses are bastions of left leaning philosophies that champion speech and expression. Imagine the shock and chagrin, then, when one discovers that UND isn’t the only member of the “liberal” American higher education system that quite possibly poses more of a threat to First Amendment rights than the government. But before you conservatives and libertarians start squealing and pointing the shame finger at the nearest hippie, sit down, shut up, and read “Unlearning Liberty: Campus Censorship and the End of American Debate”, by First Amendment super BAMF and FIRE president Greg Lukianoff.

In his book, Lukianoff gives a very real and very scary glimpse into contemporary American academia. No longer a shining beacon of differing viewpoints and the relentless pursuit of intellectual honesty, the typical American university is a quagmire of self-serving administrative officials, apathetic faculty, and a woefully ignorant student body. Lukianoff deftly sheds light on the evolution of censorship policies that have been unilaterally enacted by weak-minded bureaucrats who want to stamp out criticism and dissent. Policies that are enforced without a glimmer of due process for the offender and without so much as a peep from the student body. Policies that may be in response to legislation at both the state and Federal level.

As someone once said, “The philosophy of the school room in one generation will be the philosophy of government in the next”. If so, we’re in for a world of hurt. Unlearning Liberty is a must-read for every First Amendment defender out there. It will scare you, piss you off, and maybe even make you cry, but hopefully it will also inspire you to wake up, stand up, and speak up.


Happy Banned Books Week!

October 2, 2012

Read this today


In 1982, the Supreme Court found that students’ First Amendment rights were violated when the Island Trees School District removed Slaughterhouse Five and eight other books from library shelves. This served as the inspiration for a week-long celebration of the freedom to read, and thirty years later, Banned Books Week is still going strong. Source.

Sadly, book banning is not something that has been relegated to the dark days of an intolerant past. There are plenty of pearl clutchers and busybodies out there who work diligently to make sure that theirs is the only viewpoint that matters. You know…to protect the chiiiilllllldren. The group seeking to ban books is overwhelmingly parents (shock) and sexual activity is the most popular reason. Just so you know, violence came in at fifth place behind bad language and “other”. Source.

So please take some time this week to celebrate the written word and give a virtual middle finger (or literal if the opportunity presents itself) to those who think a book on a shelf can hurt anyone or anything.


Awfully Convenient…

September 30, 2012

Nakoula Basseley Nakoula, the director of the “Innocence of Muslims” movie, which has been blamed for setting off riots and murders in Islamic countries, has (conveniently?) been arrested for violating the terms of his probation. Among the terms of his probation: He was not allowed to se the Internet or a computer, which I presume he had to do in order to create and distribute his film. (source). From the sounds of it, the guy isn’t the most savory character in the world.

So yeah, it seems to me that he probably violated his probation.

Greg Pollowitz at The National Review wrote:

Listen, if you’re a two-time felon who is out on parole and told not to use an alias in business dealings or use the Internet and then you lie to reporters at the AP and WSJ using your alias and admitting you used the Internet, then what do you think is going to happen? (source)

Which is the only reason that he is now being held without bail, right? (source). Right?

It doesn’t have the slightest bit to do with the content of his film or the way that a bunch of idiots, brainwashed with superstition, reacted to it.

Let us presume that my cynicism is misplaced. Let us presume that it has nothing to do with that. It still sends the wrong message — that when the government does not like your speech, it can find a way to get you, First Amendment or no First Amendment.

Nikki Finke and Dominic Patten, at Deadline Hollywood saw it this way:

His arrest today is an apparent U.S. attempt to appease worldwide Muslims and their clerics and governments demanding for the YouTube video to be removed and its filmmaker punished. In an address on Tuesday condemning the content of the video, President Obama explained, “The strongest weapon against hateful speech is not repression, it is more speech.” This legal action is a way to preserve America’s  First Amendment principles but at the same time find a roundabout but legitimate way to punish Bakoula for the crudely made film that portrays the Muhammad as a religious fraud, womanizer and pedophile. (source)

I’m not saying that Nakoula should get a free pass for his probation violations. I am not saying that Finke and Patten are correct. Pollowitz has a hell of a good point. Nakoula couldn’t have made his probation violations any more public, and thus prosecutors had to do something.

Nevertheless, if Muslims are allowed to riot and kill people because they are offended at how their imaginary friend gets portrayed, I’m allowed to be offended when the government sends the message (on purpose or not) that “if you publish a film that we don’t like, we’ll find a way to put you in jail.”