Marc Randazza, the lawyer working to protect First Amendment rights of people spewing socially undesirable speech, recently opened up to Buzzfeed News about his devotion to the First Amendment and how representing neo-Nazis, trolls, and Satanists helps him uphold what he believes is one of the most important ideals this country was founded upon.
The First Amendment guarantees United States citizens a constitutional right to freedom of speech. Government cannot infringe upon this right, although certain types of speech such as incitement, obscenity, and defamation do receive less protection. Protection can be based on the place in which speech occurs. For instance, speech that takes place on the campus of a public school has high First Amendment protection but speech in a private workplace receives little protection. Between court rulings and interpretation of the Constitution, protections of free speech have become pretty well defined over the last several decades. However, there’s one grey area that is polarizing First Amendment advocates today – speech on the Internet.
That’s where Randazza focuses much of his effort.
Section 230 of the Communications Decency Act (CDA) protects technology platforms from liability based on their users’ content, but despite this protection, tech giants are restricting their users’ speech. Facebook, Twitter, and YouTube claim they can take down any content they consider inappropriate or objectionable. Moreover, these platforms claim they have the right to ban undesirable members. Randazza believes that the Internet is a de facto public space, meaning it is privately owned yet publicly accessible, and therefore, online platforms must be more tolerant of such speech, especially given that they are afforded immunity through the CDA.
One group that claims they are a target of such discrimination are white nationalists. While their rhetoric is seemingly experiencing a wave of popularity, it’s also publicly despised and tech giants are being accused of suppressing it. Scratch the surface of Jared Taylor’s lawsuit against Twitter or Alex Jones’ lawsuit against PayPal and you’ll understand why Randazza thinks white nationalists are one of today’s most vulnerable groups in regard to the suppression of free speech.
Randazza has received heavy criticism from his peers not so much for his position, but more so for representing extremists like Taylor and Jones. But, he believes that protecting First Amendment rights is a matter of principle, not message.
“Sometimes we have to take people on who we find unsavory, but that’s what a commitment to the First Amendment means,” said Randazza.
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.”
Over the past few weeks, Marc Randazza has been appearing on Info Wars. You can take a look at the video interviews on the Randazza Legal Group YouTube channel.
Marc Randazza discussed various issues related to the First Amendment and freedom of speech and expression.
In the interview (titled) Marc Randazza at Infowars: freedom of speech, well-known First Amendment cases, and censorship, Marc discussed defamation and free speech in the United States. According to Marc Randazza, there will always be people trying to use censorship to influence the marketplace of ideas. But the First Amendment allows all kind of speech, so Americans should let the marketplace of ideas flourish.
5:48 – 6:05 “… what troubles me is anytime I see anybody coming after that, I have a problem with it. The First Amendment is there for Nazis, for Clansmen, for Westboro Baptist Church, for anybody. It’s there for the speech you hate.”
15:15 – 15:41 “I don’t really care whose free speech it is that is being trampled. I will stand up to protect them, whether it’s Randa Jarrar who I find to be one of the most reprehensible human beings in America, whether it’s the Nazi party or the KKK, or whether it’s the communist party. Every one of them has an equal right to be there and the intellectual texture of America, the strength of America, the idea of America erodes and begins to grow a cancer if we don’t protect that.”
In this interview [titled], Marc Randazza commenting on the First Amendment rights protection at the Alex Jones Show Marc Randazza shares his point of view on several well-known free speech lawsuits and helps Alex Jones to figure out his own charges.
2:32 – 2:44 “What you can do is continue to educated people on what the First Amendment is because I’ve just been delighted over the past few years at how much more awareness there is now about First Amendment rights…”
Also, Mr. Randazza commented on a case involving a Scottish comedian named Mark Meechan, who taught his girlfriend’s dog to raise his paw every time he said “Sieg Heil”. Now Meechan is facing up to a year in prison for hate speech. Randazza also discussed this case on his CNN column.
According to Marc, “[censorship] looks much more like the purview of the left, at least in the West.“
14:58 – 15:17 “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.”
Watch the full interviews to understand the complete picture and catch up with the latest First Amendment insights from Marc Randazza.
In his recent CNN article, Marc Randazza shared his opinion regarding a Scottish comedian, who made a horrible joke that could now have criminal consequences.
A Scottish comedian named Mark Meechan, of Coatbridge, Lanarkshire taught a pug named Buddha to raise his paw any time he said “Sieg Heil.” Meechan posted a video of the pug on YouTube. Meechan said that he made the video and taught the dog to give Nazi salutes as a joke on his girlfriend.
In the video Meechan said that his girlfriend annoyed him by always saying how cute her pug is and he decided to get her back by teaching the dog something that’s not cute.
But authorities arrested Mark Meechan and he is now facing up to 6 months in prison for a hate crime.
The court found him guilty under the Section 127 of the UK Communications Act which prohibits “grossly offensive, indecent, obscene, or menacing” electronic communications. Mark shared his video on social media and YouTube which was offensive because of it being “anti-Semitic and racist in nature”.
Marc Randazza imagines how this case would proceed if it had happened on the other side of Atlantic, and notes that even though the United States has the First Amendment, Canada has adopted hate crime laws. For example, when Ezra Levant republished “Mohammed cartoons” in Canada, he faced a complaint before the Alberta Human Rights Commission.
In the US, Marc Randazza believes that the First Amendment protects such freedom of expression, but he fears that more hate speech prosecutions, like the ones in Europe, could be in our nation’s future. “With our growing tolerance for intolerance, I fear, UK-style prosecutions may be on the horizon for us. Even without them, the forces of censorship may simply make them unnecessary by suppressing all speech that someone might whine about.”
Marc Randazza says that if Mark Meechan were a US college student, he probably would be disciplined for such a speech. Marc Randazza recalls an instance when he was accused of hate speech at the University of Massachusetts for putting up a poster of the punk band the Dead Kennedys. The poster featured a swastika covered by a red circle and a line through it, but even though the swastika was crossed out some people were offended.
Today social networks are beginning to take down “offensive speech” if someone thinks that it is inappropriate. However, different people may determine that the speech is humorous but not offensive.
Even though Marc Randazza agrees that the Nazi salute dog is offensive, Marc Randazza thinks that free speech should be protected, including speech that may be deemed “offensive”.
Marc Randazza shared his opinion regarding some recent First Amendment and Trademark cases.
15 U.S.C. § 1052(a) (known best as “Section 2(a)”) is a federal trademark law, which prevents certification of certain classes of marks that “may disparage” or can be “immoral or scandalous”. But at the beginning of the year, the Supreme Court found that prohibiting disparaging marks from being registered violates the First Amendment. So, Section 2(a)’s unconstitutional arrangements have finally fallen.
In his latest article on Popehat, Marc Randazza comments on two recent important cases: the Brunetti decision and the Tam precedent. Both cases include trademark registrations and the restrictions of Section 2(a). Since the Supreme Court struck down the disparagement clause, many people speculated whether the immoral or scandalous clause would survive.
Mr. Randazza notes that now, with Brunetti, we no longer need to speculate (if there is no appeal). Brunetti tried to register his trademark FUCT. But the United States Patent and Trademark Office declared that this mark is a synonym with “fuck,” making it sound vulgar, and thus conflicting with Section 2(a).
Now, the Federal Circuit has found that the “immoral or scandalous” restriction on registration is unconstitutional, a decision influenced by the Supreme Court’s Tam decision. The Brunetti court pronounced that the “immoral or scandalous” restriction was likely viewpoint-based.
The Tam decision tossed aside the government’s theories on censorship, that:
Federal trademark registration scheme is a public forum that allows content-based restrictions on speech;
The “immoral or scandalous” portion of Section 2(a) survived the lesser level of examination for restrictions on commercial speech.
In this case, the test was conducted. It was supposed to determine whether a mark is “immoral or scandalous” or if the general public would find the mark “shocking to the sense of truth, decency, or propriety; disgraceful; offensive; disreputable . . . giving offense to the conscience or moral feelings . . . or calling out for condemnation.”
But finally, after years of unconstitutional actions by the United States Patent and Trademark Office, the trademarks registration process has changed and today there is no “immoral or scandalous” block.
An article about one of Marc Randazza’s most controversial and groundbreaking cases – a case involving the founder of a Neo-Nazi website Andrew Anglin – was published in the December issue of the Atlantic magazine.
The article, “The Making of an American Nazi”, tells the story of the founder of The Daily Stormer: the site that is arguably the leading hate site and neo-Nazi platform on the internet. Anglin is now being sued for allegedly harassing Tanya Gersh, a Whitefish, Montana, real estate agent, and orchestrating an anti-Semitic online trolling campaign against her family.
In April, she filed a lawsuit claiming that anonymous internet trolls started bombarding her family with hateful and threatening messages after Anglin wrote a post blaming Gersh for engaging in “extortion” regarding a property sale from Sherry Spencer, whose son is another white nationalist and arguably the face of the alt-right movement. In that post, Anglin shared personal details, including photographs of Gersh’s family and other Jewish citizens of Whitefish, and called on his supporters, the “Stormer Troll Army” – to “hit ’em up.”
Currently, Gersh is suing Anglin for invasion of privacy, intentional infliction of emotional distress, and violation of a Montana anti-intimidation statute. Marc Randazza is representing Anglin in this case. Anglin is also accused of unleashing a campaign against other Jewish residents of Whitefish, as well as “cyberstalking” and aggressive online trolling of other people, whose identity or views are not in line with his beliefs as a white nationalist.
It’s also reported that apart from committing the aforementioned activities, encouraging his followers and fellow nationalists to share his views online and participate in cyber trolling campaigns; Anglin allegedly continued to grow his audience and supposedly urged them to take their hate from the online to the real world.
Marc Randazza, the managing partner of the Randazza Legal Group, is representing Andrew Anglin. This lawsuit has attracted the attention of legal experts and the public not only due to Anglin’s notorious personality, but because it’s the first time that an internet troll is being sued for his actions.
However, according to Marc Randazza, a well-known First Amendment attorney and a fighter for free speech, restricting Anglin’s online trolling may set a dangerous precedent for the American legal system. As Mr. Randazza commented, Anglin “has every right to ask people to share their views, no matter how abhorrent those views are…this is the shitty price we have to pay for freedom.”
In his latest CNN opinion column, Vegas based attorney Marc Randazza reacted to the brutal mass shooting that happened in Las Vegas on October 2, 2017. Fortunately, neither Marc Randazza, nor his family members or friends, were harmed during that tragic incident.
However, as a First Amendment attorney and the managing partner of the Randazza Legal Group — a law firm that handles cases related to Constitutional law — Randazza could not remain indifferent.
While expressing his deep sympathy and condolences to the victims and the survivors, Marc Randazza emphasized that it’s fairly important not to let terrorists plunge the nation into chaos and fear. As Mr. Randazza noted, “Let us remember that those who kill innocent victims do not do so simply because they wish them dead — terrorism is about killing a few to strike fear into many.”
Oppressing people’s freedoms and restricting the rights of regular people isn’t the best way to react to mass shootings. Marc Randazza believes that we should “Do nothing but mourn, care and investigate. Yes, at some point this event will inform decisions on how we govern ourselves. But not today.”
Marc Randazza’s most recent CNN column analyzes the recent conviction of Code Pink Protestor Desiree Fairooz after the media suggested she had been arrested merely for, “laughing at Jeff Sessions” during a Congressional hearing.
When Fairooz laughed loudly during Session’s confirmation hearing, Officer Coronado removed her, which caused Fairooz to protest loud enough to disrupt the session. Fairooz was charged with, “disorderly and disruptive conduct and parading or demonstrating on Capitol grounds.”
However, it didn’t end there: Marc Randazza notes that a jury of her peers actually convicted her of these crimes.
Marc Randazza says, “Several jurors said they sympathized with Fairooz, but because the law is so broad that they felt they had no option but to convict.”
“[F]or Fairooz to be facing prison for her conduct is outrageous,” asserts Marc Randazza.
Marc Randazza reminds us that, “the notion of an American citizen going to jail for a nonviolent political protest is utterly antithetical to what this country is all about.”
As Marc Randazza points out, this has nothing to do with Ms. Fairooz’s message—as he admits he often does not agree with the message of Code Pink—this is about Free Speech and the First Amendment.
For Marc Randazza, it is not the message that deserves protection, it is the speech itself.
“The wall that protects the First Amendment is not manned with pretty happy smiling thoughts and easy-to-love characters. That rampart is manned by the ugly, the impolite, the impolitic, the disturbing image, and the thoughts that you may swallow no easier than if they were made from crushed glass.”
There has been a wave of violent outbursts against conservative speakers during the 2016 election season, including violent protestors at Berkeley driving Milo Yiannopolous off campus a few months ago.
Berkley’s reaction? When the Berkeley College Republicans invited Coulter to speak, Berkeley canceled it, citing the recent violent outbursts as the reason. Marc Randazza explains that Ann Coulter suggested disciplining the students that engaged in violence, but Berkeley decided instead to reschedule the speech on a day when no students were on campus.
This is censorship.
Marc Randazza says that some people on the left feel, “emboldened by a view that ‘we’ are right and the Right (is) wrong,” and goes on to scold the left: “Shame on the Left for tacitly condoning this culture of violent suppression of views it disagrees with.”
Marc Randazza reminds us that we don’t need a First Amendment for speech that neither challenges, nor offends, because sometimes that very challenging and offensive speech fosters growth.
Marc Randazza points out that the left used to be beacons for free speech, and credits a few well-known liberals for defending Coulter’s right to speak in the column:
“Are we living in an alternate reality, one in which Bill Maher and Bernie Sanders are sticking up for Ann Coulter?
What could have caused this rip in the space-time continuum?
The so-called birthplace of the free speech movement, the University of California at Berkeley, has once again engaged in liberal censorship, this time of Ann Coulter, using the fear of violence as cover to suppress a voice it did not like.”
Once again Marc Randazza of Randazza Legal Group battled censorship in favor of wide open debate in his latest First Amendment victory.The 11th Circuit Court of appeals affirmed the anti-SLAPP win and the lower court’s decision regarding the “false advertising” claim.
The case is focused on the conflict of two doctors, Dr. Steven Novella and Dr. Edward Tobinick.
Marc Randazza represented Dr. Steven Novella, a Professor of Neurology at Yale School of Medicine and the editor of Science Based Medicine. On his website Dr. Novella writes about scientific debate in the medical community. Dr. Novella published negative opinions about Dr. Tobinick’s methods of off-label drug usage to treat Alzheimer’s disease.
Dr. Tobinick didn’t start the debate but filed a lawsuit against Dr. Novella for defamation. Also, he claimed that because the website hosted ads, the case was transformed into commercial speech. This case had a huge impact on publishers, but Marc Randazza successfully SLAPPed all legal claims and protected Dr. Novella’s right to free speech and debate.
By now, practically everyone who cares has heard that Magistrate Pym has ordered Apple to help the FBI crack open an iPhone related to the San Bernadino shooting. The order is pursuant to the All Writs Act, codified at 28 U.S.C. sec. 1651. In short, it is a catch-all that lets courts issue whatever orders they feel like. In response, Apple CEO Tim Cook sent a letter saying he opposed the order. Notably, he wrote:
But now the U.S. government has asked us for something we simply do not have, and something we consider too dangerous to create. They have asked us to build a backdoor to the iPhone.
There’s been a lot of discussion, but little focused on two issues that deserve some attention. First, this isn’t simply asking Apple to turn over a piece of software or asking to borrow a gadget. They are, if Mr. Cook is to be believed, asking Apple to write new software. Software is a creative process, a means of expression; this is why it is protected by copyright. Apple itself was instrumental in this determination. See Apple v Franklin, 714 F.2d 1240 (3d Cir. 1983). In a nutshell, the Order is tantamount to ordering Frank Gehry to design a building featuring straight lines and right angles or ordering Stephen King to write a Harry Potter/Game of Thrones cross-over (assuming, in theory, a criminal investigation that would make such desirable). EFF briefly touched on this last year in similar circumstances. The All Writs Act may date to 1789, but it predates the ratification of the First Amendment in 1791 and is subject to it. The Government may not simply compel speech. See, e.g., Knox v. SEIU , 567 U.S. 310 (2012)(“The government may not prohibit the dissemination of ideas that it disfavors, nor compel the endorsement of ideas that it approves.”).
Second, there’s a certain subtext in Mr. Cook’s message. What he says is that it is too dangerous to create, not that it is unfeasible to create. The issue faced by the FBI is that the iPhone at issue may erase all data after too many failed attempts at a brute-force passcode hack. So, they want Apple to design a work-around that would enable them to guess all possible passcodes without bricking the phone. The auto-erase function is a security feature; the iPhone is encrypted by default. We rely on this as part of our daily security–heck, I’m sure the government relies on it. We’ve all seen street magicians use incredible slight of hand–how hard would it be for one of our diplomats, officers, or defense contractors to have had a foreign spy (let’s say–North Korean) swipe their iPhone (and SIM cards) and replace it with a counterfeit. In that scenario, the person would try their passcode 10 times, fail, wonder why, but feel secure that the iPhone wiped itself. Yet, the real phone would be in the hands of the foreign government. Maybe the FBI and Apple haven’t yet developed the tool that bypasses the 10-tries-and-erase feature, but a foreign intelligence agency might have. Our own NSA might have it also, but just isn’t sharing with the FBI. This tells me that no iPhone is actually secure. Though there is pretty much no such thing as an unbreakable lock, such a tool might enable a brute force attack on your phone to crack it in as little as 12 hours. That’s more than enough time before the subject realizes his phone was swapped rather than just suffering a glitch. As much as we may want Apple to be able to recover our phones if we forget our own passcodes, we really should want them to make a phone they themselves cannot crack.
These are the issues we should be discussing, in addition to whether we generally think it right for the government to ask Apple to hand over the keys to the kingdom.
My recent post on the Ninth Amendment got me thinking about Griswold v. Connecticut, and its progeny, including Lawrence v. Texas. Although the latter explicitly stated it wasn’t ruling on prostitution, it didn’t say it wasn’t protected.
Assuming a logical thread from Griswold, the case law is that, basically, whatever two consenting adults choose to do in private is private and the government should not be intruding. There are governmental interests in preventing abuse (based on consent or ability to consent) or preventing public sex, but other than that, how is prostitution still a crime? The government has no interest in restraining two (or more) consenting adults from having intercourse.
States do have the ability to declare certain contracts unlawful–working for less than minimum wage, selling contraband–and otherwise set limits on commercial activity. Thus, I would think that attempted prostitution/solicitation might still be lawfully prohibited (the two are still free to agree to have sex, so there isn’t a restraint a la sodomy prohibitions and attempted sodomy). But, the actual sex act itself is private. And, if violation of constitutional rights results in evidentiary suppression for 4th and 5th amendment violations, then evidence of the sex act itself should be inadmissible. Once inadmissible, the prima facie case disappears and the charge should be dismissed.
I did say attempted prostitution/solicitation might be prohibited. Marc previously distinguished prostitution and pornography, but I think that the First Amendment angle might be a way to go. Producer A can hire Actors B & C to have sex for money, so long as it is expressive activity. Can Producer A also insert himself into the scene with B & C or even with just B? I don’t see why not–Jason Segel produced and acted in Forgetting Sarah Marshall and The Muppets. Basically, so long as you film the encounter (or have a live audience), you can call it expressive activity. And performers have been known to be the videographers–e.g. Blair Witch Project and some documentaries. All that’s left is film distribution issues–so long as the John gets the recording at the end, but with a restriction that he and the prostitute will later have to agree on any viewing by a third person, then the pornography exemption could swallow any law regarding attempted (or actual) prostitution.
This, of course, is just an initial musing, and not a law review article or appellate brief. But, critiques are welcome. How am I wrong on either privacy or 1st amendment (with subsequent contractual) grounds?
As an employment lawyer who works for a 1st Amendment firm, I try to keep up with developments in both areas. Sometimes, they overlap, as they did in my Twitter feed recently. (Blatant self-promotion, feel free to follow me @wolmanj ).
In Trusz v.UBS Realty Investors, LLC, the Connecticut Supreme Court was asked to consider how it should evaluate statements by employees and retaliation claims. As noted by the court in Trusz, Connecticut employees (private, as well as public) have broad free speech rights under the Connecticut constitution:
This court previously has held that because, unlike the first amendment to the federal constitution: (1) article first, § 4, of the Connecticut constitution includes language protecting free speech ‘‘on all subjects’’; (2) article first, § 5, of the Connecticut constitution uses the word ‘‘ever,’’ thereby providing ‘‘additional emphasis to the force of the provision’’; (internal quotation marks omitted) State v. Linares, 232 Conn. 345, 381, 655 A.2d 737 (1995); and (3) article first, § 14, of the Connecticut constitution provides a right to seek redress for grievances by way of ‘‘remonstrance,’’ and therefore ‘‘sets forth free speech rights more emphatically than its federal counterpart’’; (internal quotation marks omitted) State v. Linares, supra, 381; these textual differences ‘‘warrant an interpretation separate and distinct from that of the first amendment.’’ (Internal quotation marks omitted.)Id. The text of article first, § 4, of the Connecticut constitution providing that citizens of this state are free to speak ‘‘on all subjects, being responsible for the abuse of that liberty’’; (emphasis added); is particularly relevant in the present case. This broad and encompassing language supports the conclusion that the state constitution protects employee speech in the public workplace on the widest possible range of topics, as long as the speech does not undermine the employer’s legitimate interest in maintaining discipline, harmony and efficiency in the workplace.
Daniel Schwartz, over at Connecticut Employment Law Blog, has a terrific analysis of the decision itself. The Trusz case came after the Garcetti case, which addressed public employee rights and held, as Dan summarizes, “workplace speech that relates to an employee’s official duties is not protected.” Trusz ignored that limit and the money quote is:
If an employee’s job related speech reflects a mere policy difference with the employer, it is not protected. It is only when the employee’s speech is on a matter of public concern and implicates an employer’s official dishonesty…other serious wrongdoing, or threats to health and safety that the speech trumps the employer’s right to control its own employees and policies.
Not all speech is treated equally. It must be of public concern and implicate dishonesty, wrongdoing, or threats arising from the employer. Other speech remains unprotected. Of course, this really only matters for Connecticut; the rest of the country is unaffected and public employees are governed by Garcetti.
The other matter that was prominently featured in my feed was the firing of Ericka Escalante by Isagenix. Ms. Escalante posted a photograph of herself picking cotton with the caption “Our inner Nigger came out today”. As I grew up watching Looney Tunes, I was well familiar with the term “cotton pickin'”, though apparently there is a distinction: cotton pickin’ itself is not racist, but calling someone a “cotton picker” is. Isagenix, as a private employer, was fully within its right to terminate Ms. Escalante for her off-the-clock speech on a matter not of public concern. (Also, Isagenix should be commended for paying interns and avoiding the scrutiny of unpaid internships.)
Still, an employer like Isagenix should be sure it conducts a proper investigation, especially if it is a Connecticut employer. What if the subtext were that Latino interns were treated or paid worse than African-American interns, and Ms. Escalante’s posting was a complaint that, were she African-American, she would be treated better? Would the racist nature (use of “Nigger” and cotton picker imagery) override her complaint about racism in the workplace (a matter of public concern and serious wrongdoing)? (Additionally, if it is on behalf of a group of employees, might it also be protected by section 7 of the NLRA?) Here, there do not appear to be those issues, but employers should still satisfy themselves that they are not facing a suit merely by doing what internet denizens demand or, at least, weigh the risks.
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!
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.
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 Majoritycountersuit.
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.
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.
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)
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.
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
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, 443 S.W.3d 87 at n.7 (Tex. 2014) (citing SOBCHAK, W., THE BIG LEBOWSKI, 1998).
Kinney v. Barnes, 57 Tex. Sup. J. 1428 at n.7 (Tex 2014) Kinney v. Barnes, 42 Media L. Rep. 2390 at n.7 (Tex. 2014)
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.