Carlos Miller – First Amendment Hero

If you don’t already know who Carlos Miller is, you should. You are more free because Miller won’t let newsgathering and photography die under the wheels of a paranoid nation, shrieking with fear at imaginary terrorists, and hiring policies in police departments that seem to favor people with personality disorders that would make Eric Cartman blush.

Miller’s crusade began a few years ago, when he photographed some Miami-Dade officers standing around on the street. Arrested for his “crime,” Miller beat the rap. Then, he did it again, and was convicted, but won his case on appeal, despite representing himself. (source). Since then, Miller has refused to back down when challenged by police officers, TSA Agents, and rent-a-cops who think that they are above the law. He recently beat another charge, over dishonest testimony by the Miami-Dade cops. (source)

Anyone with even a half a brain knows that Miller’s conduct is legal. However, as his case requiring an appeal shows us, judges don’t aways give a shit about the law. And, when a judge and a prosecutor team up to spank a citizen for not respecting authority, that citizen can face serious repercussions. Miller faced incarceration and financial ruin, and does again and again, when he refuses to back down in the face of a pig screaming “respect my authoritah.”

Do you have balls that big?

Last night, Miller was at it again. Taking pictures. For this “crime,” a bunch of gutter swine decided that it was time to punish him. He has a history with “50 state security.” He is involved in a lawsuit against them for violating his rights. Funny enough, they decided to rough him up last night.

As a First Amendment lawyer, I occasionally get mail from people saying really nice things about what I do. I stick up for the Constitution. I stick up for people whose rights have been violated. But, I do so in a pretty cushy way. Yeah, I wind up not getting paid for my work a lot of times, since I can’t turn down a good First Amendment story. Sometimes I even get threatened by opposing counsel when I outclass them in terms of professionalism and ability. Sometimes, I agree to help someone on a pro bono basis, and they turn on me because they want to prove that no good deed goes unpunished. Back in 2006 or so, I had a redneck display a gun to me, to warn me that representing a “dirty bookstore” in his town ran afoul of his christian principles. I have gotten my share of threatening phone calls and emails.

But, I’ve never been locked in handcuffs for the First Amendment.

I’ve never faced financial ruin and imprisonment for the cause.

I’ve never shed actual blood for it.

Miller has done all of the above.

Why?

Because someone has to.

Someone has to say “no” to the flunkies and the petty little tyrants who incrementally chip away at our liberties. Someone has to have the courage to put his liberty and his personal safety on the line. That someone is Carlos Miller.

And Carlos Miller is my hero. He should be yours too.

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

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.

Steve Swander

Steve Swander, R.I.S.

We lower the Satyricon’s flag to half mast today in honor of Steve Swander, the Immediate Past President of the First Amendment Lawyers’ Association. Mesothelioma took his life at 3:45 AM today.

His practice was based in Fort Worth, Texas, where the local weekly described him as an expert at fighting authorities in the State of Texas over “morals laws.” (source) Swander was a much-respected soldier in the ongoing battle to preserve civil liberties and freedom of expression. (source) And, he did so in Texas – hostile territory for someone on his side of the fight. (source)

The Dallas Observer wrote of him:

Swander is a professorial type who speaks carefully and almost winces when he comes to the more colorful details of what obviously is a specialty, the relationship between body parts and free speech. He spiels off the history of clear latex pasties: the court decision that caused the clubs to switch to non-latex pasties in order to change their status to Class A dance halls and escape location limits, followed by a new ordinance in 1997 focusing on the breast beneath the nipple, struck down by the court, thereby allowing clubs to operate with non-flesh-colored pasties as dance halls rather than sexually oriented businesses. (source)

That might not be a typical selection for a eulogy, but Swander wasn’t a typical guy. I see that quote and a big smile breaks out across my face, as I remember Steve.

And, it isn’t just me… my inbox is bursting with expressions of respect and sorrow from fellow members of the First Amendment Bar. If you knew Steve, this would be of no surprise to you. If you didn’t know Steve, and you saw the list of names in the “from” lines on those emails, you would think that a Supreme Court justice had just passed away. This was a bona-fide First Amendment Bad Ass.

Normally, I wouldn’t share FALA emails with the rest of the world, but I think I can make a limited exception in this case.

The current president of the organization, Daniel Aaronson, wrote about observing Steve as he prepared to take over the FALA helm.

I saw a man who conducted himself with a quiet calm grace that made all respect him. I will truly miss Steve and on behalf of all of FALA I will take the liberty of saying that we will all miss him.

Thank you Steve for your dedication to the First Amendment, to our organization and for just being you. You will be remembered.

The usually irreverent Paul Cambria, provided this particularly somber expression of respect:

When a person dies there is a set of numbers on the left of their tombstone representing the day their life began then a dash and a set of numbers on the right representing the day their life ended, but the dash represents their life. In Steve’s case that dash was filled with good things, good friends and good accomplishments great guy will be missed by all of us.

In honor of our fallen friend and colleague, I lower the flag to half mast and award Mr. Swander a posthumous First Amendment Bad Ass award.

If there is an afterlife, I am certain that Steve has already gotten to work there making sure that the place is more fun for the rest of us when we arrive. When you get there, if the angels are bare-breasted, and not wearing bikini tops, you can probably thank Steve.

Rest in slack, Steve.

Occupy Wall Street Has Something for Everyone

Politics, economic debate, and now hot chicks.

And incredible bad asses:

And even judges with some balls (ok, this was in Nashville)

Philadelphia > New York (when it comes to appreciation for the First Amendment)

Say what you want about the merits of the “occupy” movement. Whether you think they are the left-wing tea party, freedom fighters, speaking truth to power, simpleton dirty hippies playing hacky sack, they still have a First Amendment right to peaceably assemble.

And the asshat award winner, Michael Bloomberg, is renting out the NYPD to Citibank, and he takes the position that they are just “taking away jobs.” It doesn’t really sound like the mayor of a place like New York City, does it? But, those dipshit Yankees Fans elected him. They get the mayor they deserve.

Ninety miles to the south, the City administration honors their oaths of office. Philadelphia Mayor Michael Nutter and his Police Commissioner, Charles H. Ramsey are our First Amendment Bad Asses.

[Compared to Bloomberg] Philadelphia Police Commissioner Charles H. Ramsey has struck a markedly different tone, saying police will work with demonstrators and assist with marches. Above all, Ramsey has emphasized that officers are bound to protect the demonstrators’ right to protest peacefully. Ramsey has also had the First Amendment read at roll calls and periodically over the police radio system as a reminder. (source)

And, while Philly has charged parade organizers in the past for police and clean up costs, the Mayor’s office is not seeking these costs from anyone involved with Occupy Philadelphia.

“The difference is that these are First Amendment-driven matters as opposed to a parade,” McDonald said. “They have a right to express themselves under provisions of the Constitution, and we simply don’t, as a matter of policy, attempt to charge citizens for their free-speech rights.” (source)

Mike Krauss of PhillyBurbs.com does a much better job than I of comparing the two cities and their Mayors.

Jessica Valenti doesn’t understand the Streisand Effect

By J. DeVoy

Imagine if there was an online database of killers, child abusers, bigots, rapists and liars – and they were all women.  Now there is!  Register-Her.com, a project started by Paul Elam, a men’s rights activist and contributor to The Spearhead, uses a wiki-style webpage to consolidate locally and nationally reported facts about women whose documented wrongs range from murder to false rape accusations. [Disclaimer: Like Elam, I also contribute to The Spearhead.]  This is SRS BUSINESS.

One of the first additions to the site as a “bigot” is feministing’s own Jessica Valenti.  Merriam-Webster defines a bigot as “a person who is obstinately or intolerantly devoted to his or her own opinions and prejudices; especially : one who regards or treats the members of a group (as a racial or ethnic group) with hatred and intolerance.”  Without dignifying Valenti’s oeuvre with my attention, this sounds accurate.

If a tree falls in the woods, does anyone hear it?  If Jessica Valenti didn’t shriek like a harpy about “misogyny,” would so many others know about Register-Her.com?  Rather than letting this roll off her back with the cool disposition of an empowered, independent blah blah blah… woman, she posted this YouTube (which, admittedly, I have not watched to completion).

Result: More people know about the site.  Also, male advocates are increasingly stepping out of anonymity, contrary to Valenti’s assertions.  Paul Elam’s real name is… Paul Elam!  My name and identity are well known, and I’m on the record opposing anonymity in advocating men’s issues and any other controversial position  — though I understand and respect why others employ it.  Crime & Federalism offers a counterpoint on the issue here.  I rather enjoy this and, as far as I know, the “basement-dwelling virgin” meme has never been attached to me.  In fact, the biggest critics of women I’ve met are people among the best looking and most successful with women that I know.  In contrast, the basement-confined and virginal types tend to supplicate women and resent men who are successful with women, turning on them for the smallest of reasons (like in the case of Dominique Strauss-Kahn — come on, “forced” oral sex wasn’t a red flag of falsity?).

Just like when Barbara Steisand’s shrill howls – and not even her singing – drew attention to photos of her Pacific mansion online, Jessica Valenti’s plaintive whines drive more eyes to the site.  If she had just shut up, the damage would have been limited mostly to the men who would have found the site anyway – preaching to the choir.  Realizing that the damage was done, Valenti is now trying to scrub the internet of any trace of her existence, seeking the anonymity she criticizes men for using to voice their opinions.  I hope Reputation Defender is still in business!

But enough about a bitter, angry shrew who has to live not only with herself, but also a younger, neckbeard beta husband.  The new site itself, Register-Her.com, is a more worthy topic of discussion.

Is it fair for Register-Her.com to exist?  The Atlantic tells us that it’s the “End of Men.”  Women already kvetch and attack men’s reputations on Don’t Date Him Girl.  There’s no need for free speech to be “fair,” since its mere availability levels the playing field.  This new website fills a void in beating back the myth of intrinsic female virtue, though.  I clicked around to see what the site was about and found that each article is a recitation of sourced, cited and publicly available information.  In some cases, the women profiled in the articles are described in their very own words.  While the site was designed to be provocative, it was not created with the intent to hurt those named within it for the sheer purpose of inflicting pain.  Plus, there are limitations of liability inherent in the site’s design and operation.  Section 230 protects the site’s owner from liability for content posted by others.  To the extent others’ content may wind up on the site, such as a mugshot or screen capture, they tend to be government works – which are not subject to copyright – or tiny snippets of news articles that are almost certain to constitute fair use — assuming the articles’ factual elements can even be copyrighted.

As for litigation that can be pursued against the site… what, exactly?  Where is the disclosure of public facts when all of the site’s information is available from other online sources?  What unreasonable attention has been brought to someone’s private life?  How is aggregation of the news shocking or extreme conduct — especially when Register-Her.com is a republication of what others have written?  I’m confident Elam has the compassion to remove an entry if there’s a good reason to do so, but it is unlikely that reason would be expressed via litigation with even a remote chance of success, even as a SLAPP suit.

I’ve no doubt that this is far from the end of whining and gnashing of teeth over Register-Her.com.  More will come as the site’s contents work their way up Google’s search algorithm.  All they will do, however, is make the site more well-read and well-known. (See also Juicycampus.com (RIP).)

Rep. Steve Cohen on SLAPPs

Representative Steve Cohen, the Legal Satyricon’s favorite Congressman (source), provides an editorial in Roll Call on SLAPP litigation and the Dan Snyder case (prev. blogged on here).

GOD HATES ALITO! Westboro Baptist Church Wins – First Amendment is Preserved

The Supreme Court handed down its decision in Snyder v. Phelps, otherwise known as the “God Hates Fags” case.

To understand this case, you must unplug your emotional reaction to the speech that brought about the case in the first place. The fact is, nobody likes the Westboro Baptist Church. Or, more to the point, nobody worth a damn does. If you are one of the three people in America who does not know about Westboro, here it is: Westboro is a “church” made up of some lowlives from Kansas. These lowlives believe that there is a magic zombie who lives in space. By the way, the space zombie is Jewish. They think that the space zombie, and his father, who is the same person as the zombie, wrote a book. They also believe that this book says that homosexuals are bad. (mmmkay?).

As if that isn’t nutty enough, they also believe that the United States is too nice to homosexuals, and therefore this magic space zombie jew and his father (who is the same person as the magic space zombie jew) do bad things to America and Americans to punish us all for not killing homosexuals. To demonstrate this belief, the Westboro members go to funerals for soldiers killed in combat, and they hold up signs that say “GOD HATES FAGS” and “THANK GOD FOR DEAD SOLDIERS”.

Naturally, this chaps the ass of the families of the dead soldiers. It chaps my ass too. Were I the benevolent dictator of this country, I might very well have the Westboro followers rounded up, shoved into a wood chipper, and we would all live happily ever after. Of course, once I was done with that, my taste for blood would be unquenchable, and next thing you know, 100 million people would be run through the wood chipper before I got to half the people who piss me off.

Which is why I shouldn’t be the dictator… nor should anyone else… Which is one of the reasons we have a First Amendment. If we have free speech, we have our greatest check on tyranny. It is the cornerstone of American liberty. And, as abhorrent as the Westboro asshats are, it is more abhorrent to take a chip out of that cornerstone.

At least that is what I believe.

Fortunately, eight justices on the United States Supreme Court agree with me.

Today’s decision is a warming reaffirmation of the First Amendment — from a Court that isn’t exactly made up of some of the most free-speech friendly legal minds we’ve ever had.

In this case, poor Mr. Snyder lost his son. The Westboro asshats protested at his funeral, although Mr. Snyder could not see them at the time.

Although Snyder testified that he could see the tops of the picket signs as he drove to the funeral, he did not see what was written on the signs until later that night, while watching a news broadcast covering the event. (Op. at 3)

So lets keep this fact in mind. As a commenter noted (before this addition), most Americans think that Westboro interrupted or disrupted the funeral. This is not the case. (And if it were, I think the case would have come out differently). The Westboro asshats had a right to be where they were, and they had a right to say what they said.

Nevertheless, Mr. Snyder sued for defamation, publicity given to private life, intentional infliction of emotional distress, intrusion upon seclusion, and civil conspiracy. The defamation claim and publicity given to private life claims were squashed at the trial court level on summary judgment. Snyder v. Phelps, 533 F. Supp. 2d 567, 570 (D.Md. 2008)

A jury found for Snyder on the intentional infliction of emotional distress, intrusion upon seclusion, and civil conspiracy claims, and held Westboro liable for $2.9 mil- lion in compensatory damages and $8 million in punitive damages. Westboro filed several post-trial motions, in- cluding a motion contending that the jury verdict was grossly excessive and a motion seeking judgment as a matter of law on all claims on First Amendment grounds. The District Court remitted the punitive damages award to $2.1 million, but left the jury verdict otherwise intact. Id., at 597.

In the Court of Appeals, Westboro’’s primary argument was that the church was entitled to judgment as a matter of law because the First Amendment fully protected West- boro’’s speech. The Court of Appeals agreed. 580 F. 3d 206, 221 (CA4 2009). The court reviewed the picket signs and concluded that Westboro’’s statements were entitled to First Amendment protection because those statements were on matters of public concern, were not provably false, and were expressed solely through hyperbolic rhetoric. Id., at 222––224. (Op. at 4)

Speech on a matter of public concern

The Supreme Court’s opinion begins with a discussion of the public vs. private concern distinction — because speech on a matter of public concern is entitled to the highest degree of First Amendment protection.

Whether the First Amendment prohibits holding West- boro liable for its speech in this case turns largely on whether that speech is of public or private concern, as determined by all the circumstances of the case. ““[S]peech on ‘‘matters of public concern’’ . . . is ‘‘at the heart of the First Amendment’’s protection.’’”” Dun & Bradstreet, Inc. v. Greenmoss Builders, Inc., 472 U. S. 749, 758––759 (1985) (opinion of Powell, J.) (quoting First Nat. Bank of Boston v. Bellotti, 435 U. S. 765, 776 (1978)). The First Amend- ment reflects ““a profound national commitment to the principle that debate on public issues should be uninhibi- ted, robust, and wide-open.”” New York Times Co. v. Sulli- van, 376 U. S. 254, 270 (1964). That is because ““speech concerning public affairs is more than self-expression; it is the essence of self-government.”” Garrison v. Louisiana, 379 U. S. 64, 74––75 (1964). Accordingly, ““speech on public issues occupies the highest rung of the hierarchy of First Amendment values, and is entitled to special protection.”” Connick v. Myers, 461 U. S. 138, 145 (1983) (internal quotation marks omitted). (Op. at 5-6)

The Court noted that while discerning private concern from public concern is often a difficult task, there are general guidelines for a court to follow. “Deciding whether speech is of public or private concern requires us to examine the ““‘‘content, form, and context’’”” of that speech, ““‘‘as revealed by the whole record.’’”” (Op. at 7). However, the vitriolic nature of the speech, or its offensiveness does not factor in to the equation.

Speech deals with matters of public concern when it can ““be fairly considered as relating to any matter of politi- cal, social, or other concern to the community,”” Connick, supra, at 146, or when it ““is a subject of legitimate news interest; that is, a subject of general interest and of value and concern to the public,”” San Diego, supra, at 83––84. See Cox Broadcasting Corp. v. Cohn, 420 U.S. 469, 492––494 (1975); Time, Inc. v. Hill, 385 U. S. 374, 387–– 388 (1967). The arguably ““inappropriate or controversial character of a statement is irrelevant to the question whether it deals with a matter of public concern.”” Rankin v. McPherson, 483 U. S. 378, 387 (1987). (Op. at 6-7)

The Court held that Westboro’s speech was on matters of public concern, and this is one of the more reassuring portions of the opinion. In the future, this will be used by defendants in free speech cases to demonstrate just how broad the definition of “matter of public concern” truly is.

The ““content”” of Westboro’’s signs plainly relates to broad issues of interest to society at large, rather than matters of ““purely private concern.”” Dun & Bradstreet, supra, at 759. The placards read ““God Hates the USA/Thank God for 9/11,”” ““America is Doomed,”” ““Don’’t Pray for the USA,”” ““Thank God for IEDs,”” ““Fag Troops,”” ““Semper Fi Fags,”” ““God Hates Fags,”” ““Maryland Taliban,”” ““Fags Doom Nations,”” ““Not Blessed Just Cursed,”” ““Thank God for Dead Soldiers,”” ““Pope in Hell,”” ““Priests Rape Boys,”” ““You’’re Going to Hell,”” and ““God Hates You.”” App. 3781––3787. While these messages may fall short of refined social or political commentary, the issues they highlight——the political and moral conduct of the United States and its citizens, the fate of our Nation, homosexual- ity in the military, and scandals involving the Catholic clergy——are matters of public import. The signs certainly convey Westboro’’s position on those issues, in a manner designed, unlike the private speech in Dun & Bradstreet, to reach as broad a public audience as possible. And even if a few of the signs——such as ““You’’re Going to Hell”” and ““God Hates You””——were viewed as containing messages related to Matthew Snyder or the Snyders specifically, that would not change the fact that the overall thrust and dominant theme of Westboro’’s demonstration spoke to broader public issues. (Op. at 8)

Outrageousness of Speech is no impediment to its protection

This part of the opinion is heartening too, although it has a bit of a sour note in it. Although it affirms some strong First Amendment principles, it also seems to unnecessarily go out of its way to make it clear that this is a fact-based ruling, and that it should not be broadly interpreted.

But, lets dwell on the good part first:

Simply put, the church members had the right to be where they were. Westboro alerted local authorities to its funeral protest and fully complied with police guidance on where the picketing could be staged. The picketing was conducted under police supervision some 1,000 feet from the church, out of the sight of those at the church. The protest was not unruly; there was no shouting, profanity, or violence.

The record confirms that any distress occasioned by Westboro’s picketing turned on the content and viewpoint of the message conveyed, rather than any interference with the funeral itself. A group of parishioners standing at the very spot where Westboro stood, holding signs that said “God Bless America” and “God Loves You,” would not have been subjected to liability. It was what Westboro said that exposed it to tort damages. (Op. at 11-12)

And after setting up that “viewpoint discrimination ball,” the court tees it off hard here:

Given that Westboro’s speech was at a public place on a matter of public concern, that speech is entitled to “special protection” under the First Amendment. Such speech cannot be restricted simply because it is upsetting or arouses contempt. “If there is a bedrock principle underly- ing the First Amendment, it is that the government may not prohibit the expression of an idea simply because society finds the idea itself offensive or disagreeable.” Texas v. Johnson, 491 U. S. 397, 414 (1989). Indeed, “the point of all speech protection . . . is to shield just those choices of content that in someone’s eyes are misguided, or even hurtful.” Hurley v. Irish-American Gay, Lesbian and Bisexual Group of Boston, Inc., 515 U. S. 557, 574 (1995).

The jury here was instructed that it could hold Westboro liable for intentional infliction of emotional distress based on a finding that Westboro’s picketing was “outrageous.” “Outrageousness,” however, is a highly malleable standard with “an inherent subjectiveness about it which would allow a jury to impose liability on the basis of the jurors’ tastes or views, or perhaps on the basis of their dislike of a particular expression.” Hustler, 485 U. S., at 55 (internal quotation marks omitted). In a case such as this, a jury is “unlikely to be neutral with respect to the content of [the] speech,” posing “a real danger of becoming an instrument for the suppression of . . . ‘vehement, caustic, and some- times unpleasan[t]’ ” expression. Bose Corp., 466 U. S., at 510 (quoting New York Times, 376 U. S., at 270). Such a risk is unacceptable; “in public debate [we] must tolerate insulting, and even outrageous, speech in order to provide adequate ‘breathing space’ to the freedoms protected by the First Amendment.” Boos v. Barry, 485 U. S. 312, 322 (1988) (some internal quotation marks omitted). What Westboro said, in the whole context of how and where it chose to say it, is entitled to “special protection” under the First Amendment, and that protection cannot be overcome by a jury finding that the picketing was outrageous.

For all these reasons, the jury verdict imposing tort liability on Westboro for intentional infliction of emotional distress must be set aside. (Op. at 12-13)

This is a hell of a victory for free speech. We live in a political environment where the Right wing wants to limit all speech that criticizes the war and the Left wants to limit all speech that hurts anyone’s feelings. With that backdrop, this decision will make very few people happy. Veterans and Republicans will go all Walter Sobchak about Vietnam and 9/11. The PC crowd and the Democrats will whine into their tofu and lentils as they piss and moan that the First Amendment should not protect speech that makes someone feel bad. Most average Americans will say, “that just doesn’t seem right.”

But then, there will be a few of us who recognize that without free speech, we are not America. A few of us realize that freedom means having to tolerate opinions that you despise. I hope that a few of my readers are among that group, and that you go out and evangelize the good word that came down today, and you realize that Westboro Baptist Church and its merry band of asshats just did more for the cause of freedom than every man and woman who died in any American military adventure since 1953.

For that reason, the Westboro Baptist Church is the first entity to receive both the First Amendment Bad Ass award and the Asshat award in a single blog post. May their members choke to death on both.

Write a poem, go to jail

by Charles Platt

The text of the poem is circulating freely online, so, here it is:

—

THE SNIPER

As the tyrant enters his cross hairs the breath he takes is deep
His focus is square on the target as he begins to release
A patriot for his people he knows this shot will cost his life
But for his race and their existence it is a small sacrifice

The bullet that he has chambered is one of the purest pride
And the inscription on the casing reads DIE negro DIE
He breathes out as he pulls the trigger releasing all his hate
And a smile appears upon his face as he seals that monkeys fate

The bullet screams toward its mark bringing with it death
And where there was once a face there is nothing left
Two blood covered agents stare in horror and dismay
Looking down toward the ground where their president now lay

Now the screams of one old negro broad pierces thru the air
Setting off panic from every eyewitness that was there
And among all the confusion the hero calmly slips away
Laughing for he knows there will be another negro holiday

By Johnny Spencer

—

Mr. Spencer is now serving 33 months and will have 3 years of supervision after completing his sentence. (source)

The question in such cases, as I understand it, is whether this was a “credible threat.” Since the poem had been posted two years previously, and nothing happened on that occasion, that alone suggests that it should not have been taken unduly seriously.

The term credible threat means a threat that is “real and immediate, not conjectural or hypothetical.” Kegler v. United States DOJ, 436 F. Supp. 2d 1204, 1212 (D. Wyo. 2006). The poem sounds quite hypothetical to me, containing no details whatsoever of how the threat was supposed to be carried out, when, or where.

Under California law, I find “Credible threat of violence” is a knowing and willful statement or course of conduct that would place a reasonable person in fear for his or her safety…” and I believe other states have similarly worded statutes. Does a gun fantasy on a web site by an obscure white supremacist cause the President of the United States to fear for his safety?

Of course the guy in this case pleaded guilty. Presumably his attorney advised him to do so. The news reports don’t mention a plea bargain, but I’m betting there was one.

First Amendment Badass: Hossein Derakhshan

By J. DeVoy

You may have never heard of Hossein Derakhshan or his more popular moniker, Hoder.  More than a name, Hoder.com – now a parked GoDaddy page – was one man’s outlet for free speech in Iran, a country not given to free expression and individual liberty.

Yesterday, Derakhshan was released on furlough from a 19.5-year sentence on an unprecedented $1,500,000 bail.  While normally a sentence associated with rape, murder or America’s asinine drug laws, a trial court gave Derakhshan the sentence based on the following charges:

cooperation with hostile states, propagating against the regime, propagation in favor of anti-revolutionary groups, insulting sanctities, and implementation and management of obscene websites (source.)

As a dual citizen of Iran and Canada, Derakhshan pioneered Iranian blogging.  Based in Toronto, he led the way in Persian-language blogging in terms of technology, content and building a critical mass of user interest, even writing a guide to blogging in Persian.

Derakhshan didn’t take shit from anybody.  When his views on Iran changed around 2006, and he began expressing support for Iran’s nuclear ambitions – both technologically and militaristically – he was vocal and unapologetic in his views.  When others disagreed with him, he personally attacked them.  In 2007, an Iranian who Derakhshan smeared even sued him for libel.

When Derakhshan returned to Iran in 2008, it took nearly inhumane conditions for the Iranian government to silence him.  He was beaten until he confessed working with the CIA and Canadian intelligence authorities.  Additionally, Derakhshan was all but denied access to his family during his incarceration, seeing them only twice during his prison term.  His family was banned from his court proceedings as well.

While Hoder.com expired on November 25, 2010, its cultural and social significance kept it from dying sooner.  In 2009, GoDaddy extended the domain’s registration for one year – free of charge! – once confronted by internet users about its importance.  Its content remains preserved through 2008 at the Internet Archive.

Few are willing to risk personal liberty for free speech, or can grasp that it cuts both ways (cue the Tea Party’s collective gasp over Ron Paul’s predictable but accurate defense of Julian Assange).  Yet Derakhshan has done that, at the cost of $1.5 million in bail and a potential full sentence of almost two decades.  As the culmination of nearly a decade of activism, his actions are more than stubbornness or recklessness; they require an ideological commitment that most self-proclaimed activists lack.

When Derakhshan walks, I would not be surprised to hear a loud pinging accompanying his footsteps.  Based on his year in prison and prospective risks, the reasons why are obvious.

Carl Paladino – the man to watch in November 2010

By J. DeVoy

“They say I’m too blunt.  Well, I am.”
— Carl Paladino, Sept. 14, 2010

Tonight, Carl Paladino cinched the Republican nomination for Governor of New York State.  Paladino, a lawyer-cum-real estate magnate in upstate New York, has had a storied past.  Before wading into the political realm, he would buy radio and print advertisements to air his grievances with people he disliked in New York, specifically local politicians in Upstate cities.

After announcing his candidacy, the Western New York media network obtained e-mails from Paladino, featuring racist photos and videos, pornography of all kinds, and general insanity.  In his own defense, Paladino described himself as “uninhibited and probably a little out of the box,” but “mean[ing] no harm to to anyone except the bad guys.”  He concluded his defense with “truth, justice, apple pie, motherhood, the wheels on the bus go round and round.”

Paladino’s campaigning extended into activities that could best be described as elaborate in-real-life (“IRL”) flame.  In Syracuse, Paladino used a man dressed as a chicken to insinuate his opponent, Rick Lazio, was afraid to debate him. (Famously, Lazio lost to Hillary Clinton in the 2000 senate race.)  Keeping with the avian theme of his tactics, Paladino sent a man dressed as a duck to “stalk” Democratic gubernatorial candidate Andrew Cuomo — a reference to Paladino’s charge that Cuomo has “ducked” questions about healthcare reform and other important issues.

A few short weeks before the primary, Paladino introduced his idea for the “Dignity Corps” — a modified welfare-to-work program.  Under Paladino’s vision, underutilized and empty prisons would be converted into centers where those on welfare and unemployment insurance can receive job training, state-sponsored work, housing and lessons in “personal hygiene.” (source.)  This proposal was, obviously, met with significant criticism by both Republicans and Democrats.

Now that Paladino has the backing of the New York GOP, he will be more visible for approximately two months.  Given the circumstances already surrounding New York’s Governor’s office – inhabited by a blind gentleman who recently signed the wrong state budget into effect after inheriting the office from a philandering Eliot Spitzer – the race should already garner national attention.  Paladino’s escapades will only give the media more fodder to follow and a greater reason to turn its eye toward the Empire State.

From a free speech perspective, I’m glad Paladino has the nod to go on to the gubernatorial election.  He’s a brash, controversial figure that will draw both intense support and vitriolic hatred.  As much as people might think his plans are insensitive and even reprehensible, the voters can make that decision now, rather than hypersensitive, triangulating political operatives.  This is New York State we’re talking about, and Carl may be relegated to his top-story keep in the Ellicott Square Building via electoral defeat, left to live the rest of his political career alone with his piles and piles of real estate money.

One thing appears clear, though: Paladino understands free speech.  He’s not afraid of making – and defending – pointed statements, as offensive or absurd as others may find them.  One hopes that he’ll extend this understanding to others as well, and there’s good reason, based on his own embrace of the First Amendment’s principles evidenced by his personal speech, that he will.  In the political forum, where words, expression and debate are so important, or at least supposed to be, this attribute is critically important.

For that reason alone, Carl, I’m with you.  I might not agree with everything you do and say, but your right to say it is vital.

12 People in Forrest City, Arkansas are True Patriots and True Americans – Thank You

By Marc J. Randazza

In St. Francis County, Arkansas, local prosecutors are apparently the kind who think that the whole “First Amendment thing” is a bit over-blown. Despite taking oaths to uphold and defend the Constitution, they brought the owners of “Adult World” up on two felony counts of “promoting obscene material” for selling a couple of movies starring consenting adults to consenting adults. (source)

These prosecutors alleged that Jim Philpot and Wayne Philpot, as owners of the store, violated state law by selling “obscene materials” in their stores. Prosecutor Fletcher Long told the media that he devoted a lot of time and resources to shutting down this “threat.”

“We have made cases in the past against the clerks and the manager out there, and for the last year we’ve been investigating the gentlemen who own those businesses,” prosecutor Fletcher Long told the Times Herald. (source)

Long compared the stores to methamphetamine dealers. I guess that is why he devoted so much of his office’s resources to trying to put an end to the sale of dirty movies.

“I’ve heard the argument that these people are operating a business, and with the tough economic times we’re facing we should just leave them be, but my issue is with the law,” he said. “If someone was operating a business which sold marijuana or methamphetamine and the times were tough, would they have a problem with it? What is being sold out there is just as illegal as marijuana and methamphetamine, and is no less against the law to promote, sell or possess.” (source)

I’ll give him a pass on the “sell or promote” part, but apparently this dumbass doesn’t know about Stanley v. Georgia, 394 U.S. 557 (1969). “If the First Amendment means anything, it means that a state has no business telling a man, sitting alone in his house, what books he may read or what films he may watch.”

Sometimes, when a public official places his hand on the Bible and swears to uphold the Constitution, sometimes he bungles that equation up and seems to think he is supposed to do the opposite. This happens most often in the former Confederacy, but this disease is not unique to the South, nor is the South without its patriotic citizens who understand what the Constitution is all about. That is particularly apparent today, as twelve Arkansans chipped away with that stereotype.

Fellow First Amendment Lawyers’ Association member, JD Obenberger was there to observe the trial, and he provided an account of the proceedings: Obenberger reported that the prosecution put on a case against the Philpots for selling two DVDs. One called “Reality” featured double penetration, some multiple ejaculations, some ass-to-mouth content. Another, called “Grudgefuck” included choking, throwing of a female onto a bed, stuffing a female’s mouth with underwear, ass to mouth, facial ejaculation, choking, and other material going to a fantasy of hostility.

Obenberger said (in an email), “The judge gave the defense almost no breaks and gave the prosecutor just about everything he wanted. The instructions included some way-over-the-line language including morality and decency. The judge denied the defense the opportunity to put on evidence of comparable material being sold elsewhere in the state because, apparently, he felt the sales were not so open and obvious as to make them relevant as to what the community knows about and accepts.” In other words, the judge didn’t seem too disposed toward the defendants.

One of the corporations got tossed out of the case because there was no evidence that it was involved in the sale of either video, but the rest of the charges and defendants were placed at the mercy of the jury. After four hours of deliberation, the jury acquitted all defendants on all counts.

Obenberger reported that this trial, aside from being an affront to liberty, was part of an ongoing vendetta:

This drama has been going on for years and it reflected a crusade by local politicians to close the remaining store down. There had been raids on the store with multiple arrests of clerks and the manager. At trial, the manager was given immunity and compelled to testify, fairly dramatic stuff, especially because she apparently is facing allegations of probation violation for continuing to work at the store, the probation being the result of a nolo plea and an arranged disposition.

One of the most important issues in an obscenity prosecution is the rule laid down in Miller v. California, 413 U.S. 15 (1973) that the work must be “taken as a whole.” Government zealots usually like to cut out the most disturbing scenes and show those to the jury. Some shitty judges allow that. This judge may not have been friendly toward the defendants, but he allowed the movies to be shown in their entirety. This turned out to be key, because the films included documentary-style trailers. The prosecution only put in its “shorter summary” which conveniently omitted those parts. After the movies were shown, one juror applauded.

Obenberger reports:

In the closing argument by D.A. Fletcher Long, after he announced that these out of state defendants took all their money out of the state, leaving the residents of St. Francis County with only the filth, Fletcher went on to say that [the defense’s] arguments arguments would lead to the destruction of civilization – and the availability of videos showing dogs killing dogs. [Defense Attorney Louis Sirkin] objected at a sidebar and the jury went back to deliberate. [Sirkin] was then able to get access to the Internet in the courtroom and obtain a summary of [United States v. Stevens] which he read to the court, and he told the judge that though he could not print it out, the court could read the text of the opinion acknowledging First Amendment protection with respect to such materials. Judge Neal said that he’d heard about the case, and the Prosecutor was wrong to so argue, but he didn’t think it important enough to pull the jury out and tell them so.

In the end, the jury of six blacks, six whites, six men, and six women, acquitted on all counts. These twelve people, whoever they are, are hereby awarded the First Amendment Bad Ass award.

I am certain that aside from the guy who clapped, most of these jurors did not like the material they saw. Hell, even I don’t like the material they saw, and I’m about the most disgusting libertine that most of my acquaintances have ever met. But, that is not what freedom means. Freedom does not mean that a zealot prosecutor gets to look at material he does not like and decide that since his imaginary friend would disapprove, that his fellow citizens belong in prison for selling it. Freedom means being able to make the choice to watch “Grudgefuck” or to boycott it. To buy it and throw it in the trash, or to protest outside the store that sells it. These 12 Arkansans apparently understood that.

While we’re handing out First Amendment Bad Ass awards, I would like to hand a couple out to Louis Sirkin and Jamie Benjamin, both brothers of mine in the First Amendment lawyers’ association. They were defense counsel in the case, and because of them, and these 12 Arkansans, you are more free today than you were yesterday.

News Flash: L.A. Times Prints Whiney Panic Piece

by Jason Fischer

Okay.  So it’s not really a news flash – it’s kinda the bread and butter of the L.A. Times to print whiney panic pieces.  However, this story hit upon our sweet spot.  Reporter David G. Savage writes to warn us all about the dangers of criticizing others on teh interwebs.  The advice to bloggers and emailers: “think twice before sending a message.”

With all due respect to the attorneys quoted in the piece, the story is a load of shit.  It paints the picture that you can and will be sued for posting anything negative about anyone or anything.  We understand that there is only so much space available for a story, but this one was so halfway done, that we question the article’s intent.  Newspapers are losing their grip on the dissemination of information, as blogs and citizen journalists deliver information to the masses.  It almost seems like the L.A. Times was trying to scare us all from encroaching on their turf – and that it must have consciously failed to complete the story.

The article quotes our friend Professor Eric Goldman, of Santa Clara University, as saying that someone can be sued for saying “My dentist stinks.”  Conveniently, this is the end of the quote – convenient because it supports the message behind the piece, i.e., don’t be mean to people and hurt their feelings by writing unkind things about them.  We’re sure that, if the entirety of Professor Goldman’s input were published, he would have gone on to state, unequivocally, that “My dentist stinks” would never carry the day in court.  In fact, in California, bringing such a frivolous suit would leave the plaintiff paying everyone’s attorneys’ fees, after getting hit with a special motion to strike pursuant to the state’s anti-SLAPP statute.  We’ve never seen Goldman shill for the “fraidy cat” contingent, and we bet our entire publication’s credibility that he didn’t do so this time.

Let’s break it down LS style, in case someone out there is now afraid to complain about how much her dentist stinks on yelp after reading the article.  There are two ways the statement “My dentist stinks” can be interpreted:

Applause for Mayor Bloomberg

I have nothing to add:

Transcript of his speech:

“We’ve come here to Governors Island to stand where the earliest settlers first set foot in New Amsterdam, and where the seeds of religious tolerance were first planted. We come here to see the inspiring symbol of liberty that more than 250 years later would greet millions of immigrants in this harbor. And we come here to state as strongly as ever, this is the freest city in the world. That’s what makes New York special and different and strong.

“Our doors are open to everyone. Everyone with a dream and a willingness to work hard and play by the rules. New York City was built by immigrants, and it’s sustained by immigrants — by people from more than 100 different countries speaking more than 200 different languages and professing every faith. And whether your parents were born here or you came here yesterday, you are a New Yorker.

“We may not always agree with every one of our neighbors. That’s life. And it’s part of living in such a diverse and dense city. But we also recognize that part of being a New Yorker is living with your neighbors in mutual respect and tolerance. It was exactly that spirit of openness and acceptance that was attacked on 9/11, 2001.

“On that day, 3,000 people were killed because some murderous fanatics didn’t want us to enjoy the freedoms to profess our own faiths, to speak our own minds, to follow our own dreams, and to live our own lives. Of all our precious freedoms, the most important may be the freedom to worship as we wish. And it is a freedom that even here — in a city that is rooted in Dutch tolerance — was hard-won over many years.

“In the mid-1650s, the small Jewish community living in lower Manhattan petitioned Dutch governor Peter Stuyvesant for the right to build a synagogue, and they were turned down. In 1657, when Stuyvesant also prohibited Quakers from holding meetings, a group of non-Quakers in Queens signed the Flushing Remonstrance, a petition in defense of the right of Quakers and others to freely practice their religion. It was perhaps the first formal political petition for religious freedom in the American colonies, and the organizer was thrown in jail and then banished from New Amsterdam.

“In the 1700s, even as religious freedom took hold in America, Catholics in New York were effectively prohibited from practicing their religion, and priests could be arrested. Largely as a result, the first Catholic parish in New York City was not established until the 1780s, St. Peter’s on Barclay Street, which still stands just one block north of the World Trade Center site, and one block south of the proposed mosque and community center.

“This morning, the city’s Landmark Preservation Commission unanimously voted to extend — not to extend — landmark status to the building on Park Place where the mosque and community center are planned. The decision was based solely on the fact that there was little architectural significance to the building. But with or without landmark designation, there is nothing in the law that would prevent the owners from opening a mosque within the existing building.

“The simple fact is, this building is private property, and the owners have a right to use the building as a house of worship, and the government has no right whatsoever to deny that right. And if it were tried, the courts would almost certainly strike it down as a violation of the U.S. Constitution.

“Whatever you may think of the proposed mosque and community center, lost in the heat of the debate has been a basic question: Should government attempt to deny private citizens the right to build a house of worship on private property based on their particular religion? That may happen in other countries, but we should never allow it to happen here.

“This nation was founded on the principle that the government must never choose between religions or favor one over another. The World Trade Center site will forever hold a special place in our city, in our hearts. But we would be untrue to the best part of ourselves and who we are as New Yorkers and Americans if we said no to a mosque in lower Manhattan.

“Let us not forget that Muslims were among those murdered on 9/11, and that our Muslim neighbors grieved with us as New Yorkers and as Americans. We would betray our values and play into our enemies’ hands if we were to treat Muslims differently than anyone else. In fact, to cave to popular sentiment would be to hand a victory to the terrorists, and we should not stand for that.

“For that reason, I believe that this is an important test of the separation of church and state as we may see in our lifetimes, as important a test. And it is critically important that we get it right.

“On Sept. 11, 2001, thousands of first responders heroically rushed to the scene and saved tens of thousands of lives. More than 400 of those first responders did not make it out alive. In rushing into those burning buildings, not one of them asked, ‘What God do you pray to?’ (Bloomberg’s voice cracks here a little as he gets choked up.) ‘What beliefs do you hold?’

“The attack was an act of war, and our first responders defended not only our city, but our country and our constitution. We do not honor their lives by denying the very constitutional rights they died protecting. We honor their lives by defending those rights and the freedoms that the terrorists attacked. (emphasis added)

“Of course, it is fair to ask the organizers of the mosque to show some special sensitivity to the situation, and in fact their plan envisions reaching beyond their walls and building an interfaith community. But doing so, it is my hope that the mosque will help to bring our city even closer together, and help repudiate the false and repugnant idea that the attacks of 9/11 were in any ways consistent with Islam.

“Muslims are as much a part of our city and our country as the people of any faith. And they are as welcome to worship in lower Manhattan as any other group. In fact, they have been worshipping at the site for better, the better part of a year, as is their right. The local community board in lower Manhattan voted overwhelmingly to support the proposal. And if it moves forward, I expect the community center and mosque will add to the life and vitality of the neighborhood and the entire city.

“Political controversies come and go, but our values and our traditions endure, and there is no neighborhood in this city that is off-limits to God’s love and mercy, as the religious leaders here with us can attest.”

Libel Tourism Law Passes!

Bla bla bla

Representative Steve Cohen (D-TN) represents the people of Memphis, TN. His district also includes Graceland. That can’t be a coincidence, because he is the Congressional King of Free Speech legislation.

Cohen sponsored HR 2765, the Libel Tourism bill, and Obama signed it into law on Tuesday. The new law now protects Americans from defamation judgments that plaintiffs might obtain abroad — in countries where free speech receives less protection than it does in the USA. The need for such a law arose back when American author Rachel Ehrenfeld wrote a book, “Funding Evil: How Terrorism is Funded and How to Stop It,” and published it in New York. A Saudi, Khalid Bin Mahfouz, did not appreciate how he was portrayed in the book — as a major financier of terrorism. He filed suit in the U.K., and based on the sale of 23 copies sold in England, the U.K. court exercised jurisdiction over Ehrenfeld. She refused to appear, so the judge entered a default judgment against her for $225,000. (source)

There is a reason that Bin Mahfouz chose to file suit in the U.K. Britain’s libel laws are very favorable to plaintiffs, and they don’t have a pesky First Amendment Bill of Rights to get in the way of wealthy plaintiffs attempts to trample on others free speech rights.

Bin Mahfouz is one of the world’s most notorious libel tourists, having used or threatening to use plaintiff-friendly British courts to sue for libel at least 36 times since 2002. (source)

The next time Bin Mahfouz decides to sue an American in the UK, he is going to need to obtain the judgment by getting the UK court to impose First Amendment protections as well as Due Process considerations.

But wait, there’s more. Our heroes over at Public Citizen lobbied for an additional measure to be added to the bill. The bill also provides new strength to Section 230.

The discussion on the floor just before passage recognizes the need to extend section 230 protection because, otherwise, plaintiffs are tempted to try to suppress speech “by suing a third-party interactive computer service, rather than the actual author of the offending statement. In such circumstances, the service provider would likely take down the allegedly offending material rather than face a lawsuit. Providing immunity removes this unhealthy incentive to take down material under improper pressure.” (source)

Here’s the beautiful thing about this: Without this addition to the law, web hosting companies and other “interactive service providers” would likely have become the targets for libel tourism suits. Libel tourists, frustrated by their attempts to impose foreign libel standards on American speakers, would simply have sued the service providers. Since Section 230 only protects you in U.S. courts, that might have meant that American service providers would have simply become collateral damage in the fight against free speech.

Now, even if a service provider is the target of a foreign libel suit, the foreign court will either need to apply Section 230, or its judgment will not be enforceable in the United States. This creates a pretty good incentive for some online service providers to locate their businesses inside the United States.

The Legal Satyricon would like to extend its First Amendment Bad Ass award to Cohen — our only two-time winner. At the same time, we are also joyfully compelled to extend the award to Paul Allen Levy and his team at Public Citizen. Boys, your country is in your debt.

If we can get a national anti-SLAPP law on the books — another project that Rep. Cohen is working on — we may find that the First Amendment is entering a period of renaissance.