Lying is Constitutionally Protected (Sort of).

June 30, 2012

I just hate to see First Amendment cases lost in the shuffle. And since the opinion for his case was released only hours before the Healthcare Decision, poor Xavier Alvarez is in a room full of crickets. But it’s an important case that should not be ignored.

Alvarez, or more commonly known as the Stolen Valor case (U.S. v. Alvarez, 567 U.S.____, (2012)), answers the question of whether it is acceptable to lie about receiving military decorations- in this case the Medal of Honor. The Stolen Valor Act (18 U.S.C. §§704) was passed in 2005 and makes it a criminal offense to lie about being the recipient of military decorations. It provides an enhanced penalty for making false claims about the Medal of Honor. In 2007, Mr. Alvarez, a newly elected board member of the Three Valley Water District wanted to make a splash at his first meeting, so he introduced himself like this:

“I am a retired marine (sic) of 25 years. I retired in the year 2001. Back in 1987, I was awarded the Congressional Medal of Honor. I got wounded many times by the same guy”.

Mr. Alvarez made a splash all right, but not until later when it was discovered that none of his statements were true. I’ve never seen a Supreme Court opinion calling a party a jackass, but this one comes close. This case is another example of how it can be difficult to separate our visceral reactions to speech we hate and speak only in terms of what the First Amendment protects and what it does not. The Supreme Court was faced with a tough decision here, and it made the right call. Now losers like Alvarez can spout complete bullshit and remain unscathed-legally speaking, that is.

The Court found that the Act was a content-based restriction and appeared to apply some sort of intermediate scrutiny. They agreed that the government has an interest in protecting the integrity of military honors, but did not find that the statute as written furthered that interest. This is because, while there are instances where a content-based restriction will be upheld, false statements in general do not fall into any of the enumerated exceptions for restrictions against lying (such as perjury, lying to a government official, or falsely representing oneself as a government official). What is interesting is that the Court did not focus solely on the fact that the statement was false, noting that “the falsity of the speech was not irrelevant to [their] analysis, but was not determinative” either.

It is important to note that the Court did not take issue with the general concept of the Stolen Valor Act. The government’s position was that the public’s perception of military awards is diluted when there are false claims about them and the actual recipients of those awards are harmed. The Justices all agreed that protecting the integrity of military honors is a legitimate government objective and even called it compelling at one point. But the analysis doesn’t stop at the government’s interest- the restriction must be actually necessary to achieve that interest. The Court found the wording of the statute sought to control and suppress all false statements, regardless of time or setting, which was far too overreaching. Anger and frustration at people like Alvarez are not enough to justify the broad sweeping language of the statute. The government simply could not show a direct causal link between the restriction and the injury to be prevented in this case. But the Court did go on to note that a statute that was drafted to proscribe false statements made to perpetuate some sort of fraud or to reap some sort of financial gain would be well within the government’s power to restrict. Here, however, Mr. Alvarez lied at a public meeting to fulfill his ego, not to get some sort of tangible reward, so his speech is protected.

Mr. Alvarez was drawn and quartered in the court of public opinion, and it is clear that the Court derived a little bit of joy from that. The government’s position was that the counter speech in this case was not enough to prevent the harm suffered and wanted something more- to prevent the speech in the first place. The Court disagreed and relied on the concept that the proper response to stupid speech (even lies) is more speech, not less. To paraphrase, the best way to ferret out a lie is to speak the truth, not stifle the lie. In order to permit the Act’s restriction, the government would have had to actually show that the public’s perception of the military and its awards were diminished. They could not do this. The VFW’s amicus brief noted that “there is nothing that charlatans such as Xavier Alvarez can do to stain the [medal winner’s] honor”, and the court agreed with this sentiment.

Justice Kennedy writes, “Freedom of speech and thought flows not from the beneficence of the state but from the inalienable rights of the person. And suppression of speech by the government can make exposure of falsity more difficult, not less so. Society has the right and civic duty to engage in open, dynamic, rational discourse. These ends are not well served when the government seeks to orchestrate public discussion through content-based mandates.” But the Court did not suggest that there could never be a case where lying about military awards could be proscribed by statute. And Justices Breyer and Kagan, in their concurrence, flat out tell us so. What this suggests to me is that in the future there could be a scenario where a new content-based exception is carved out of the First Amendment. Let’s hope the government finds something better to do with its time in the interim.


ACLU sues after middle school girls expelled over Facebook comments

June 14, 2012

The ACLU filed a complaint in the Northern District of Indiana against the Griffith Public School district after it expelled three middle school girls for a lengthy conversation they had on Facebook outside of school hours.  According to the complaint, the conversation “spanned numerous subjects,” beginning with one girl complaining on her Facebook wall about cutting her legs while shaving (#FirstWorldProblems), before turning to which classmates they would kill if given the chance. The comments were littered with the typical cutesy teenage girl sprinklings of emoticons, OMGs, and LOLs, and most of the comments were directed toward the “ugly” girls, a la Mean Girls fashion. The comments were contained to Facebook, and subject and post were not discussed on campus.

Two days later, after another person presented a screen shot to school administrators, the girls were expelled from school for violating student handbook policies on bullying, harassment, and intimidation.  Griffith Public School later informed the girls they were expelled for the remainder of the school year, but would be able to continue to the ninth grade the following year.

The ACLU contends that this action was a violation of the students’ First Amendment Rights, as the comments were “clearly made in jest” and did not constitute a “clear threat.”  The ACLU also states in the complaint that the comments did not disrupt school activities.

Students notoriously have very few rights, and schools generally have had wide latitude to punish activity outside of school.  It will be interesting to see how the case proceeds.


You are Fined Twenty Dollars for Violation of the Verbal Morality Statute.

June 12, 2012

Creating a well-timed and well-phrased barrage of expletives has been around since the beginning of time and those who have mastered the art should be revered as national treasures (George Carlin, rest in peace). Middleborough, Massachusetts does not share this sentiment. Frustrated malcontent Mimi Duphily was fed up with young hooligans dropping the F-bomb near her auto parts store. So she did what any twat rational, intelligent human being would do- Persuade the city council to permit local police to issue fines to individuals cursing in public.

Source 1. Source 2.

The current Middleborough ordinance is based on a previous ordinance criminalizing profanity which is rarely, if ever, enforced. Profanity was bundled with a bunch of other “anti-social” behaviors that are now decriminalized. So instead of being charged with a crime, a person who “verbally accosts” someone in public will receive a $20 fine. At first blush this appears mired in abject stupidity because, well, it is. But the denizens of Middleborough are not alone. In fact, it seems states have always been trying to punish naughty words- both civilly and criminally. Typically, the government will try to stamp out profanity by slapping a fine on some poor schmuck for violating a statute or local ordinance that was enacted before women gained the right to vote and hasn’t been enforced for years if it ever was to begin with.

In 1942, the United States Supreme Court held that “fighting words”— words “which by their very utterance inflict injury or tend to incite an immediate breach of the peace” — are not protected by the First Amendment. Chaplinsky v. New Hampshire, 15 U.S. 568 (1942). Then in 1971, the Nine limited Chaplinsky by explaining that wearing a jacket that said “Fuck the Draft” was a “simple public display” as opposed to a direct insult or intent to incite harm. Cohen v. California, 403 U.S. 15 (1971). In the wake of Cohen and related cases (notably, Street v. New York, 394 U.S. 576 (1969)-the flag burning case) the 1970’s through 1990s saw a smattering of cases testing Cohen with little or no success.

By and large, ordinances punishing profanity are nearly always struck down as overbroad, vague, and punishing constitutionally protected speech. See e.g., City of Baton Rouge v. Ewing, 308 So.2d 776 (La., 1975)(Motion to quash charge for using ‘indecent, vile, and profane language’ granted based on the ground that the ordinance was an unconstitutional violation of the First Amendment); and State v. Authelet, 120 R.I. 42, 385 A.2d 642 (R.I., 1978)(Acquittal for person convicted of profanity statute because under fighting words doctrine profanity was not directed at arresting officer). More recently, Michigan tried it in 2002 in People v. Boomer,655 N.W.2d 255 (Mich. App. 2002). A local sheriff ticketed a guy for violating a profanity statute enacted in 1897 that criminalized the use of profane language in front of women and children. The Court of Appeals threw out the conviction and overturned the law, stating that “allowing a prosecution where one utters ‘insulting’ language could possibly subject a vast percentage of the populace to a misdemeanor conviction.” The court went on to note that it would be “difficult to conceive of a statute that would be more vague.”

Abject stupidity aside, the Middleborough city council’s decision is problematic not only because it is extremely vague but also because the ticketing officer is given the discretion to determine the gravity of the profanity. Does the officer’s discretion extend to loud music? “I wasn’t cussing officer; it was Jay-Z, why don’t you send him the ticket?” What about holding a sign that reads, “Fuck you, you fucking fuck” (preferably in front of Mimi Duphily’s store)? The council would have done well to read Cohen ([a statute that] reflects an “undifferentiated fear or apprehension of disturbance is not enough to overcome the right to freedom of expression), and Street, (“We cannot say that [burning the American Flag on a street corner] was so inherently inflammatory as to come within that small class of ‘fighting words’ which are ‘likely to provoke the average person to retaliation, and thereby cause a breach of the peace”). I am waiting on bated breath to see if this ordinance is actually enforced and I can’t help but wonder what the budget of the city attorney’s office is these days.

But the good news is that now we have a name for the fine-issuing machine in Demolition Man- let’s call it the Duphily.


Say What You Like About the Tenets of National Socialism, Dude, at Least it’s an Ethos.

April 26, 2012

I’ve had a soft spot for banned books for many years. It started in high school when my English teacher produced from the dank and cloistered School Board file room a list denouncing certain books as verboten because my fragile teenage mind would be forever ruined by the filth contained on the pages therein.

Needless to say, I spent the next day in a used bookstore locating and purchasing as many of the verboten as I could find. And I am proud to say my home library has since become a cornucopia of evil tomes that the thought police would love to use as kindling. As an aside, and in deference to pop culture, if you want to read a book about kids killing each other, skip The Hunger Games and read Lord of the Flies instead. All the unsettling imagery and none of the teenage fan-girl bullshit. But I digress.

Having a constitutional republic form of government has made Americans lucky enough to have the concept of individual freedoms that many others do not enjoy- particularly relating to speech. The First Amendment, for the most part, prevents said government from banning the publication of books based on their content. OK, I’m still hoping that a magic fairy will drop an uncensored first edition copy of Operation Dark Heart on my doorstep, which will never happen, but barring the odd exception, Americans are free to choose what they will read, no matter how offensive or disgusting it may be to another person. Book banning in this country is, by and large, limited to the handful of frustrated malcontents who don’t want schoolchildren reading this book or that, usually because it has language harsher than “oh, dear” and some flavor of sexual…well…anything.

Citizens of other countries are not so lucky, which brings us to Bavaria. And Mein Kampf. And I do mean Mein Kampf. The famous and controversial screed memoir Adolf Hitler wrote while in prison was first published in 1925. By the time he became Chancellor in 1933, it was immensely popular, and was made much more so during the Third Reich. Then, when World War II ended, the Bavarian government was given the copyright to the book, which it promptly used to squelch the sale, publication, ownership, and distribution of. And it has continued to do so ever since. Please understand that this is perfectly acceptable in Germany; it has no First Amendment and certain kinds of speech in Germany are actually considered criminal, including anti-Semitism and hate speech. So it kind of makes sense a book riddled with both would be kept out of the hands of the public.

The copyright term of protection in Europe is life of the author plus 70 years, as it is here in the States. On April 30, 1945, Der Fuhrer did us all a favor and shuffled himself lose the mortal coil, which gives the Bavarian Government three years to do…something…before Mein Kampf is yanked from its grasp and unleashed upon the unsuspecting masses. In light of this, and to make sure it maximizes its ability to control the work, the Bavarian government has decided to publish, for the first time since World War II, the weird, whiny ramblings of a man-child with serious daddy issues. Source 1. Source 2.

Hooray. But there’s a huge caveat. The Bavarian government’s version is going to be heavily annotated and edited, which is for the explicit purpose to “keep it from being abused for political aims – and to limit profits for future publishers”. This means that what Germans are really going to get is a watered-down, cleansed version with an instruction manual telling them to how to read and what to think. By publishing its version a mere three years before it loses the rights forever, the Bavarian Government admittedly hopes to make future German editions as “commercially unattractive” as possible. And Karl Freller, the director of the Foundation of Bavarian Memorials, said he would seek “intense” discussions with bookshops and publishing houses in the hope that they would voluntarily avoid selling or reprinting un-annotated versions of Mein Kampf when its copyright expires. Oh, irony, how I love thee.

I, for one, am dubious of any government-approved version of a book that it previously deemed socially or politically unacceptable for the masses to read. I am inherently resentful when anyone, especially the government, tries to tell me what to think and it sends a chill up my spine to think that some nameless faceless conglomerate could have the power to deem what should be printed and what should remain hidden. And I believe that Germans are intelligent enough to make their own decisions; there is no need for commentary or editing to prevent frowned upon “political aims”. As a friend of mine recently said, “sunshine is the best disinfectant”. Nobody needs a Disney-fied version of Mein Kampf- they need the original work. And the Bavarian government is doing a large disservice to its citizenry with its attempts to control the dissemination and future publications of the work. They had 67 years to sort it out and chose the “you’re too stupid to read this” route. This reminds me once again just how important the First Amendment is and why we fight so hard to defend it.

I’ve actually read Mein Kampf. I chose to read the English translation as approved by the Third Reich, not some slanted interpretation where a fuzzy-brained academic tells me what it means. And I can tell you Mein Kampf is an exhausting and manic read. It’s ugly, stupid, and in all other ways time better spent cleaning the catbox. Rumor has it Benito Mussolini said the book was boring and he was right. Mein Kampf is boring. And dense. And whiny, rambly, grammatically incorrect, and in all other ways a chore to read. But I forced myself to finish it. Not for some sick need to delve into the macabre, but because it’s that important. That whiny rambling lunatic inspired a nation and went on to kill millions without so much as a “by your leave”. Let that sink in for a minute.

It sets a dangerous precedent to plug our ears and minds to words we don’t want to hear. It is absolutely terrifying to permit a government to do it for us. How can you face and prevent an evil from reoccurring if you don’t understand what seeds it the first place? How can you fight evil if you blindly believe everything you’re told? If we can learn anything from Bavaria it is how important it is to not let the government think for you. I don’t need bureaucrats to tell me what Mein Kampf means and neither do you. I am aware that World War II is a touchy subject in Germany, so perhaps I’m being insensitive. But the proper answer to hateful speech is more speech, not less. Perhaps I’m taking for granted the freedoms we Americans have with our literature. We can choose to read Hitler’s words or we can choose not to. The Bavarian government is not giving its citizens a choice and that makes me sad. An unedited version of Mein Kampf provides a unique glimpse into the mind of one of the most important figures in world history. It deserves to be examined as it was written, not neutered and then swept under the rug.

The point is, you can’t protect yourself and society from evil words and deeds by pretending they don’t exist. You can’t cleanse through commentary the horror of genocide and the evil of complacency. While many Americans willingly bury their heads in the sand, in other places in the world, it is done for you. Remember that next time you want the government to step in and silence a viewpoint you hate. Can you imagine what this country would be like if the government had the power to tell you what to read?

Now if you’ll excuse me, I’m going to go re-read 1984. You should, too


Anonymous commenter hit with lawsuit

April 25, 2012

Former Las Vegas Chief Deputy District Attorney Mary Brown and her husband, defense attorney Phil Brown, filed a complaint against an anonymous reader who commented on an online newspaper article that Mary Brown “had sexual relations in order to get promoted.” (Source). The Browns claim that the comment is false and harmed their reputations, as well as caused them emotional distress.

The Browns served a subpoena to the newspaper for the identity of the anonymous commenter. An attorney for the anonymous commenter said that anonymous speech is protected by the First Amendment and is looking to quash the subpoena.


U.S. v. Heicklen Explained – a Win for the Wizened and Worried

April 24, 2012

By Larry Sutter, Special to the Legal Satyricon

The Southern District of New York recently issued its order dismissing the United State’s case against Julian Heicklen.  The order is available here.  While this is an interesting case about the protection of speech advocating jury nullification, what is even more interesting is the story behind it – from both the people involved to the affect it has had on New York’s legal community.

The Defendant: An 80-year-old retired chemistry professor who believes in freedom and liberty. Like, a lot. He stands in front of the federal courthouse in lower Manhattan handing out pamphlets advocating jury nullification. Calling him “cantankerous” is an understatement that does violence to the language: With his counsel’s motion to dismiss still pending, he addresses a letter to the federal judge who has his case firing his court-appointed standby federal defense counsel–a letter in which the salutation is “Dishonorable Judge Wood,” and the closing is “yours in disgust and hatred.” Among other requests, the letter sought the indictment of the District’s US Attorney.

As part of the investigation, the US Attorney sends an undercover agent posing as a juror to talk to the professor – who advises him he has the right to decide both the law and the facts in the interest of justice. The professor is then indicted for violating the federal jury tampering statute, 18 U.S.C. § 1504. Ironically, such a charge does not merit trial by jury.

The federal defenders, who moved to dismiss the case on every possible ground before they were fired, including § 1504’s vagueness and overbreadth in violation of the First Amendment. But even in their briefs, the defenders refer to their client as a “shabby old man distributing his silly leaflets.”

New York’s legal community has drawn its battle lines over the case, spawning numerous articles on our precious heritage of freedom.  Prominent attorneys forecast that mere anarchy would be loosed upon the world—as two eminent lawyers argued last December in The New York Law Journal:

“Pause for a moment to imagine how this would work in practice with cases involving politically heated and classically divisive social issues….Runaway jury verdicts would amount to little more than a random 12-person vote….Talk about an engraved invitation for chaos—indeed, anarchy.”

Indeed? Indeed! Which the prosecutors were glad to echo. Last month, an Assistant U.S. Attorney characterized Heicklen’s advocacy as “an absolute threat to the system,” during a hearing on the defendant’s motion to dismiss.

But then comes a noble-visaged Portia of a judge to render justice between these parties.  Filleting the statute as skillfully as the countermen at Zabar’s wield their razor-sharp knives upon the $28-a-pound Nova Scotia salmon, Judge Kimba Wood rules that because the statute—giving effect to all its language, not allowing any of its provisions to be condensed or duplicated—only forbids attempting

“to influence the action or decision of a juror upon an issue or matter pending before that juror or pertaining to that juror’s duties by means of a written communication made in relation to a a specific case pending before that juror or in relation to a point in dispute between the parties before that juror.” (Emphasis the Court’s.)

Therefore, generalized exhortations—as opposed to urging the juror to throw a specific case—are OK. (source)  And you don’t even have to get to all those tricky First Amendment issues, do you?

Nevertheless almost half the decision is spent not getting to the First Amendment issues. In particular, the judge found that the danger, whatever it might be, in free-floating jury nullification advocacy wasn’t clear or present enough to pose “a danger to the administration of justice.” Why shouldn’t the jurors respond as sympathetically to the judge’s instructions to follow the law as she gives it as they might to Heicklen’s exhortation to disregard it?  Indeed, Judge’s Wood statutory interpretation reached the same result Heicklen’s counsel urged in their overbreadth argument, namely, that to convict Heicklen for what he was doing would be to punish protected First Amendment activity, viz.,  speech not directed to a specific case or matter before a particular juror.

Heicklen is said to be pleased and is reported to be planning to resume his post Monday in Federal Plaza and, afterwards, go to lunch with his supporters. Dutch treat, of course. It’s reported (on Scott Greenfield’s Simple Justice blog) that his email to this effect was signed, “one small step for a shabby old man, but a giant leap for justice and our country.”


Nevada: want in on the tech bubble 2.0? Get a better anti-SLAPP statute.

April 13, 2012

By J. DeVoy

Earlier this week, Facebook announced its $1B acquisition of hipster staple Instagram.  Everywhere you look, social media companies based on seemingly fragile social momentum are receiving gigantic valuations and making initial public offerings.  Zynga has $8.8 billion in market capitalization – it’s best known for FarmVille, brogrammers and abusing trademark law.  Groupon has lost more money than many firms will ever see, yet IPO’ed, reifying billions of dollars of wealth for shareholders.

Yet California does not have a monopoly on tech.  In fact, California is absurdly expensive.  Nevada, in contrast, is dirt cheap.  And, based on the success of firms like SirsiDynix and Adobe in Utah – seriously, Utah – it’s clear that Silicon Valley does not have a stranglehold on programming and tech manpower.  For all but the most elite developers, young workers will go where the work is – and even then, they will pursue the most challenging opportunities.

But this raises the question of why, exactly all of these wildly successful social media companies started in California.  What is it about California?  What is so profoundly different about the state that gives it a monopoly over these companies?

Maybe it’s one of the country’s best, oldest and most litigated anti-SLAPP statutes?

I know how much we like to wax poetic about the importance of 47 U.S.C. § 230 on this blog, and write about how liberating compliance with the DMCA is.  But the reality is that if some unethical shithead wants to try to grab some cash from your pocket, he/she can and will sue you on utterly frivolous grounds – and if it happens in a state without a good anti-SLAPP statute, and especially a hellhole like Florida or New York, you’re going to just have to grin and eat the costs of proving, for the eightieth time, that the Roommates.com case and its § 230-vitiating FHA violations are in fact an extreme outlier.

That is, unless you live in a state like California with a kick-ass anti-SLAPP statute.  Among others, I would include Washington, Oregon and Texas on the list of states with a good anti-SLAPP statute.  I think, too, that Nevada can and  should be one of these states.

There’s some really good stuff in Nevada’s anti-SLAPP statute.  In October 2011, I wrote about the following provision, which gives a slight testosterone injection to California’s fee-shifting regime:

 Reasonable attorneys’ fees are awarded independent of the Court’s discretion, and the prevailing anti-SLAPP movant has his own cause of action for compensatory damages, punitive damages, and attorney’s fees.  (source)

However, this is all meaningless if it applies only to expression made to a governmental entity.  If this statute is going to have teeth and apply to social networking services that are wrongly sued for third parties’ postings on them, the range of protected expression must be drawn more broadly.  California and Texas provide some good examples of how to define this.

While Zynga, Groupon, Facebook, Google and many others that have yet to publicly reveal their wealth are Delaware Corporations, they all do business in California – and are protected by Cal. Code of Civil Procedure 425.16.  Broad First Amendment protections.  Mandatory fee shifting for a successful motion.  Washington and Seattle-based Avvo Inc. are shaping up to be a similar success story, and a longer post about their recent anti-SLAPP victory is forthcoming.

An anti-SLAPP statute is not the cure-all for Nevada’s drive to diversify its economy, attract new businesses and encourage diversification.  California’s (and specifically the bay area’s) success in social media is attributable to numerous covariants including an entrenched, educated and highly skilled workforce, fed by CalTech, Stanford and UC Berkeley.  Silicon Valley is also host to a surfeit of venture capital and private equity firms; needless to say Las Vegas is not.  However, flying from Las Vegas to SFO is at most a proposition of $200 and… 90 minutes?  possibly less?  This is hardly a barrier to innovation and financing.

The cynic in anyone who understands markets is that the latest tech bubble (perhaps more accurately, the social bubble) is exactly that – an inflated payout for the investors in these services.  But good for them – they got paid, and you’re reading this blog.  Who’s the idiot now?  Regardless of how absurdly overvalued some of these services seem and doubtless are, billions of dollars in paper wealth are being created – and Nevada can capture some of it by making a small but important change to an existing law.  Making Nevada a hospitable place for social media ventures will create or attract jobs to Nevada, especially economically battered and casino-reliant Southern Nevada, and enrich those companies’ employees.  Like the Canadians in the South Park episode “Canada on Strike,” Nevadans must stand up and scream at their representatives: Give us Internet money!

As a tourism mecca, Las Vegas knows a lot about getting the world’s ultra-wealthy to leave a lot of their money here.  By providing sufficient protections to new media businesses, the same dynamic can play out with the rich investing in new businesses, rather than a blackjack table.

(I have nothing against blackjack.)


Massachusetts court strikes down ordinance limiting permits for adult businesses

March 27, 2012

By Laura Tucker

A U.S. District Court in Mendon, Mass., granted summary judgment in favor of Showtime Entertainment, allowing the company a special permit to open a live nude dancing venue and invalidating an ordinance that gave the zoning board too broad of authority to deny permits to similar businesses.

In its order, the court reasoned that even if the establishment would have an adverse secondary effect on the community, the court is still “bound by long-standing principles of constitutional law that narrowly constrain” the regulation of activities that are protected by the First Amendment.

The Mendon city ordinance at issue in the case prohibited the operation of an adult entertainment venue absent a special permit from the Mendon zoning board. The ordinance stated that the board “may” issue a special permit for adult businesses, provided that the business did not fall under certain categories.

The board granted Showtime’s application, but determined that the venue would increase the risk of crime in the town and required that Showtime meet certain conditions prior to operation—notably that it limit its hours of operation from 4 p.m. to 1 a.m. and that it provide various parking, security, safety, and noise reduction measures, as well as prohibiting the venue to sell alcohol.

According to the adverse secondary effects doctrine, government officials may limit adult businesses if they are concerned that the business will have negative secondary effects associated with them—higher crime, for example. The doctrine has sometimes been broadly applied by courts, and many First Amendment advocates are critical of its implications.

Section 5.01(f) governs when the board should not grant a special permit for adult businesses, but, according to Showtime, whose reasoning the court adopted, it did not explicitly state when a permit should be granted because it used the word “may” instead of a more definite “must.” The court analogized to a similar Massachusetts case in which the court invalidated an earlier version of the statute for virtually the same reason. Thus, the court held, the ordinance allowed for broad authority in denying such permits, in violation of the First Amendment.

The town argued, however, that the statute did, in fact, state when a special permit could be granted: when the conditions under which the permit should not be granted were absent. The court rejected this reasoning, stating that the statute did not affirmatively state under what circumstances an adult entertainment venue could operate. Furthermore, the court said the town offered no reason to show that the word “may” should be construed as “must.”

The court’s reasoning included a good reliance on authority from Massachusetts cases, and provides a great upholding of the First Amendment, notwithstanding the town’s reliance on the secondary effects doctrine. Even though the court clearly shows its disapproval for such businesses in the second paragraph of the opinion (“the Court is entirely sympathetic to the concerns of the people of Mendon, as reflected in the actions of their public officials, that such an establishment is likely to have a deleterious effect on the community in a variety of ways”), it still did the right thing by invalidating the ordinance.


Your Elected Officials Just Kicked the First Amendment Square in the Nuts.

March 13, 2012

And don’t even think about whining about it. Source.

Here’s the text of HR 347, the festering shitburger your government passed and your president signed. Kids, this is no longer an issue of politics and which party sucks more. HR 347 passed with overwhelming support.

P.S. Did you know the G8 Summit this spring has been moved from Chicago to Camp David?


CNN Debate: Should FCC Boot Rush Limbaugh From the Airwaves?

March 12, 2012

On the side of kicking him off the air, Jane Fonda, Robin Morgan and Gloria Steinem.

On the side of protecting his right to free speech, Marc J. Randazza.

This is not the same debate over whether the subject of his diatribe has a valid defamation claim against him. I wrote about that here.


For the Last Time, NO, Sandra Fluke does not have a valid defamation claim against Rush Limbaugh

March 6, 2012

Why we have a First Amendment; Show Your Love for It

When I hear Rush Limbaugh’s voice, I want to vomit. I despise just about everything that pill-addled, hate-spewing, disgusting piece of human tripe has ever said. The thought of him being thrown off the air and silenced forever makes me swoon with joy. A man can dream, after all.

But, as a First Amendment lawyer, nay First Amendment fetishist, I realize that when I feel this way about a speaker, it is time for me to make sure that I am acutely protective of that speaker’s right to peddle his wares in the marketplace of ideas. Whether it is the Ku Klux Klan, Mike (the Situation” Sorrentino, the American Nazi Party, Glenn Beck, Gail Dines, the Westboro Baptist Church, The Jonas Brothers, Ann Bartow, Creed, Jack Thompson, or anyone else whose stall in the marketplace of ideas smells as if a hungover bull who had eaten too many spoiled Jamaican beef patties took a crap in it, I take a deep breath and for a small and twisted moment, I savor the aroma. The speech that tests our commitment to free speech – that’s the really good stuff. That’s the stuff that we need to affix shields, sharpen swords, and stand next to our brothers and sisters in arms to protect.

I Must Defend Rush Limbaugh

It is for the above reason that I must stand up to defend Rush Limbaugh. House Minority Whip Steny Hoyer came out and said that Sandra Fluke should sue Limbaugh for defamation for famously calling her a “slut.” (source). And a Philadelphia attorney, Max Kennerly, told his local newspaper that he thinks Fluke has a case. (source)

She has no such thing, and shame on those who say that she does. It isn’t that Rush Limbaugh needs to be shielded from these barbs. It isn’t that Sandra Fluke actually might be emboldened to sue. The problem with these uneducated and erroneous statements about the viability of such a suit is that they act like a blizzard wind blowing through the marketplace of ideas. They spread misinformation among the proletariat, who didn’t have the benefit of an education in Constitutional law, and consequently believe Fluke might have a claim based on Rush’s impolitic statements. And the next time one of these moronic proles gets butthurt about something someone says, they’ll be right on the phone to the closest bottom feeding lawyer they can find. (Example)

Spreading ignorance about defamation law makes the marketplace of ideas just that much more chilly, just that much more dangerous, and just that much more likely to be hit with a bomb by some opportunistic ambulance-chaser teamed up with a thin-skinned professional victim so that he or she can get paid for his or her mere “butthurt.” Butthurt is not defamation. Butthurt is butthurt, and you don’t get paid for that in the United States of America. Not on my watch.

Sandra Fluke is a Public Figure

When you purposely inject yourself into public debate, you lose your status as a “just minding my own business” private citizen.

When a plaintiff alleging defamation is a public figure, he or she must show that the allegedly false statements were made with actual malice – that is, knowing falsity, or a reckless disregard for the truth. N.Y. Times Co. v. Sullivan, 376 U.S. 254, 279-80 (1964); Town of Massena v. Healthcare Underwriters Mut. Ins. Co., 779 N.E.2d 167, 171 (N.Y. 2002). Such public figures can include limited-purpose public figures who “have thrust themselves into the forefront of particular public controversies in order to influence the resolution of the issues involved.” Gertz v. Robert Welch, Inc., 418 U.S. 323, 345 (1974).  It is not necessary for a plaintiff to be a household name to be a public figure, either; he or she may be a limited-purpose public figure within a certain community for the same public figure standards to apply. Huggins v. Moore, 726 N.E.2d 456, 460 (N.Y. 1999).  It is not even necessary for a public figure to seek the limelight to be held to this standard – it is possible to be a public figure by mere circumstance, rather than concerted effort. See Gertz, 418 U.S. at 345 (“it may be possible for someone to become a public figure through no purposeful action of his own”).

Fluke was testifying before Congress, on National TV, in a debate that she willingly ran toward. She purposely dove into the spotlight, and if the spotlight burned her, that’s her problem — not my beloved Constitution’s problem.

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

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

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

Further, there is a reason why public figures need to meet a higher standard than ordinary people. When you jump into a boxing ring, you can’t whine when the other guy punches you in the face. And, when you step onto the gladiatorial sands of public political debate, you’re going to just need to accept that people who disagree with you are going to say nasty things about you. If you can’t stand the heat, don’t go running into the kitchen.

Wah! But Rush Limbaugh called her a “prostitute.”

No. No he didn’t.

Yes, literally, Rush Limbaugh said that Sandra Fluke was a “prostitute.” However, it should not take too high of a degree of sophistication to understand the difference between actually accusing someone of being a harlot of the night, who takes money for sex, and calling someone a prostitute in the exercise of rhetorical hyperbole.

Even his “factually sounding” statements must be taken in context.

“She wants to be paid to have sex. She’s having so much sex she can’t afford contraception. She wants you and me and the taxpayers to pay her to have sex.”

“If we are going to pay for your contraceptives, thus pay for you to have sex, we want something for it, and I’ll tell you what it is: We want you to post the videos online so we can all watch.”

Even these are hyperbolic and not “false statements of fact.”

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

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

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

The law is clear that defamation law is not there to protect anyone from annoying speech, embarrassing speech, vigorous epithets, or mere vitriolic spewings of a fat pill-addled blowhard bastard.

Posner wrote that rhetorical hyperbole “is a well recognized category of, as it were, privileged defamation.” Dilworth v. Dudley, 75 F.3d 307, 309 (7th Cir. 1996); See also Lifton v. Bd. of Educ. of the City of Chicago, 416 F.3d 571, 579 (7th Cir. 2005) (Illinois law requires that an allegedly defamatory statement must contain an objectively verifiable factual assertion); Pease v. Int’l Union of Operating Engineers Local 150, et al., 208 Ill.App.3d 863, 153 Ill.Dec. 656, 567 N.E.2d 614, 619 (1991) (“Words that are mere name calling or found to be rhetorical hyperbole or employed only in a loose, figurative sense have been deemed nonactionable.”).

It is implausible for Limbaugh’s statements about Fluke, even if appearing to be factual upon facile review, to be interpreted as actual facts.  When a reader – or in the case, listener – would not interpret a statement as factual, it constitutes rhetorical hyperbole, which is not actionable as defamation.  Letter Carriers v. Austin, 418 U.S. 264, 283 (1974); Greenbelt, 893 U.S. at 14 (characterizing conduct as “blackmail” was, in context, non-actionable rhetorical hyperbole).  “Statements that can be interpreted as nothing more than rhetorical political invective, opinion, or hyperbole are protected speech.” Burns v. Davis, 196 Ariz. 155, 165, 993 P.2d 1119, 1129 (Ariz. App. 1999).  Even where defamation defendants have made statements that could be interpreted as factual – a claim of rape, Gold v. Harrison, 962 P.2d 353 (Haw. 1998), cert denied, 526 U.S. 1018 (1999), or a statement that someone behaved “unethically,” Wait v. Beck’s North America, Inc., 241 F. Supp. 2d 172, 183 (N.D.N.Y. 2003) – courts have protected this expression as non-defamatory.  

The fact that these statements were made by Rush Limbaugh, the man who coined the term “feminazi” and constantly bemoans the mere continued existence of liberal feminists to a conservative, politically aware radio audience, denudes his description of Fluke as a “prostitute” of any capacity for defamation.  No reasonable person would interpret Limbaugh’s statement to be factual, and it fits safely under the umbrella of rhetorical hyperbole.

Ok, Rush called her a “slut” – that’s defamation per se!

Wrong again, Skippy.

For most of our history, stating or implying that a woman was unchaste would give rise to a claim for defamation per se. In fact, in recent history, a number of courts have specifically held that describing a woman as a “slut” is defamatory per se. See, e.g., Bryson v. News Am. Publs., 672 N.E.2d 1207, 1221 (Ill. 1996); Howard v. Town of Jonesville, 935 F.Supp 855, 861 (W. D. La. 1996) (stating that a woman is “sleeping with everyone” at her place of employment and is incapable of performing her job duties “would appear to be defamatory on its face”) (punctuation and footnote omitted); Smith v. Atkins, 622 So.2d 795, 800 (La. Ct. App. 1993) (calling a woman a “slut” is defamatory per se).

However, I believe that this theory is a throwback to the days when women were essentially the sexual property of their controlling male. A daughter who was unchaste became less valuable to her father, and a wife that was unchaste was less valuable to her husband.

The times they are a changin’…

In 2005, an ex-girlfriend of KISS lead singer Gene Simmons sued after VH1 ran a “rockumentary” in which she was portrayed, she claims, as an “unchaste woman.”

The plaintiff, Georgeann Ward, said that a portrayal of her as promiscuous was defamatory. The defendants argued that “changing social mores could affect how certain sexual conduct is viewed by the community, and that what was defamatory at one time may no longer be the case.”

While the New York state court refused the defendants’ motion to dismiss the lawsuit, the judge did suggest that the proper “legal authority or social science data” might convince a court that saying a woman is promiscuous is no longer automatically defamatory. The two sides have since settled, but I believe that this is an accurate portrayal of modern thought. Things might be different in Mississippi or other third world jurisdictions, but a case brought in DC (where I would imagine the claim would be brought) would likely be examined through 20th century, and not antebellum, eyes.

Professor Lisa Pruitt of the University of California at Davis School of Law said that although it might be more difficult for a woman to sue today when she is defamed in a sexual manner, the change in the law is “a net gain for women because it signifies, through law’s expressive function, that women’s most important attribute is no longer their sexual propriety.” (source)

Accordingly, it would be awfully ironic to hear someone supposedly championing women’s rights arguing that defamation law should stop its march forward and that a sexist standard should be applied to her suit.

Absent such a bold maneuver, this element would probably wither under scrutiny as a statement of protected opinion.

What is the standard for someone to accurately and factually be described as a slut? Clerks suggests that if a woman performs oral sex on 37 men, that this might be the line. I really don’t know. I think that most women would say that the line is well below 37. Then again, I wouldn’t really call any woman a slut (unless it was a term of endearment – some women giggle when you call them that). I just don’t make value judgments about someone’s sexuality. If a woman or a man is promiscuous and they are happy, they can be a slut if they want (or not).

In other words, “slut” is properly regarded as little more than a statement of opinion. But see Bryson, 672 N.E.2d at 1221; Howard, 935 F.Supp at 861; Smith, 622 So.2d at 800.

“Under the First Amendment there is no such thing as a false idea. However pernicious an opinion may seem, we depend for its correction not on the conscience of judges and juries, but on the competition of other ideas. But there is no constitutional value in false statements of fact.” Gertz, 418 U.S. at 339-40. An alleged defamatory statement “must be provable as false before there can be liability under state defamation law.” Milkovich v. Lorain Journal Co., 497 U.S. 1, 19 (1990).

The term “slut” has different meanings to different people. C.f. McCabe v. Rattiner, 814 F.2d 839, 842 (1st Cir. 1987) (finding that the term “scam” “means different things to different people . . . and there is not a single usage in common phraseology. While some connotations of the word may encompass criminal behavior, others do not. The lack of precision makes the assertion ‘X is a scam’ incapable of being proven true or false.”); Lauderback v. Am. Broad. Cos., Inc., 741 F.2d 193, 196 (8th Cir. 1984) (insurance agent referred to as a “crook”). “Clearly, if the statement was not capable of being verified as false, there could be no liability for defamation.” Woodward v. Weiss, 932 F. Supp. 723, 726 (D.S.C. 1996). As such, a term with such diffuse and subjective meaning, colored and even defined by the reader’s life experiences, is incapable of precise definition. Like “short,” “ugly” or “fat,” slut is a word that is given its meaning by those who use it – a fact that the participants of SlutWalks around the world in 2011 would be quick to cite. Absent something really bizarre happening in Court, I can’t see a court, in this day and age, allowing a defamation claim based on the term “slut.”

Conclusion

This incident is unfortunate for those on the Left who have, at least since 2000, considered their side of the aisle to be the place where free speech can feel safe and secure. It has exposed the liberal and academic Left to be as hypocritical and as bad as the dirty Right wing when it comes to free speech. Remember when Democratic elected officials condemned Bill Maher for calling Sarah Palin a “cunt?” No, me either) Sandra Fluke’s statements were worthy of some criticism, and I lobbed some of my own. Rush Limbaugh could have done a much better job of criticizing Ms. Fluke. But, the fact is that those on the left, defamation lawyers trolling for clients, and Rush Limbaugh haters alike have set aside their desire to understand or support free expression in a hysterical pile-on of the prick from Palm Beach. They are all wrong. They are not only wrong on the law, but they are also morally wrong because someone, somewhere out there is listening to them — and will believe that when someone gets butthurt, that they are a victim, and that someone has to pay for their thin-skinned indignation in court.

And then we all lose.


Sheriff Mike Scott vs. The Media (again)

March 4, 2012

Lee County, Floriduh: Sheriff Mike Scott, (who I wrote about here) didn’t like being questioned about a federal lawsuit filed against his department. To show everyone that he’s boss, he decided that the Fort Myers News Press will no longer have the right to ask questions at press conferences, and he’s decided to severely limit press access to his department. (source)

Apparently, this is not the first time that Mike Scott has thrown a temper tantrum at the media.


D.C. Judge Smokes out a First Amendment Violation

March 4, 2012

Don't Bogart our First Amendment Rights

The “Family Smoking Prevention and Tobacco Control Act”, Pub. L. No. 111-31, 123 Stat. 1776 (2009) gave the FDA the authority to regulate the manufacture and sale of cigarettes and other tobacco products. Under that law, Congress mandated that the DHHS must “issue regulations that require color graphics depicting the negative health consequences of smoking.” It also required that the top 50% of all cigarette packages, and the top 20% of all cigarette advertising, must carry one of the following messages with graphic images.

    WARNING: Cigarettes are addictive.
    WARNING: Tobacco smoke can harm your children.
    WARNING: Cigarettes cause fatal lung disease.
    WARNING: Cigarettes cause cancer.
    WARNING: Cigarettes cause strokes and heart disease.
    WARNING: Smoking during pregnancy can harm your baby.
    WARNING: Smoking can kill you.
    WARNING: Tobacco smoke causes fatal lung disease in nonsmokers.
    WARNING: Quitting smoking now greatly reduces serious risks to your health.”

The graphic images would rotate according to an FDA approved plan and include color images of a parade of anti smoking horribles, such as a picture of a man exhaling cigarette smoke through a tracheotomy hole in his throat, a plume of cigarette smoke enveloping an infant receiving a kiss from his or her mother, pairs of diseased lungs, a diseased mouth with cancerous lesions, a premature baby in an incubator, etc.

Naturally, the cigarette companies filed suit. The regulations seemed to be a clear example of government compelled speech. On Feb. 29, Judge Leon agreed. R.J. Reynolds Tobacco Co. v. United States FDA, 2012 U.S. Dist. LEXIS 26257 (D.D.C. Feb. 29, 2012). In analyzing the claim, Judge Leon laid out a concise history of compelled speech jurisprudence.

A fundamental tenant of constitutional jurisprudence is that the First Amendment protects “both the right to speak freely and the right to refrain from speaking at all.”Wooley, 430 U.S. at 714. A speaker typically “has the autonomy to choose the content of his own message.” Hurley, 515 U.S. at 573. And, in fact, “[f]or corporations as for individuals, the choice to speak includes within it the choice of what not to say.” Pac. Gas & Elec. Co. v. Pub. Utils. Comm’n of Cal., 475 U.S. 1, 16, 106 S. Ct. 903, 89 L. Ed. 2d 1 (1986) (plurality opinion).  As plaintiffs so aptly stated, although “the Government may engage in [ ] advocacy using its own voice[,] . . . it may not force others, such as Plaintiffs, to serve as its unwilling mouthpiece.” Reply in Supp. of Pls.’ Mot. (“Pls.’ Reply”), Nov. 18, 2011, at 1 [Dkt. #42]; see Sorrell v. IMS Health, Inc., 131 S. Ct. 2653, 2671, 180 L. Ed. 2d 544 (2011) (“The State can express [its] views through its own speech. But a State’s failure to persuade does not allow it to hamstring the opposition. The State may not burden the speech of others in order to tilt public debate in a preferred direction.”). Thus, where a statute “‘mandates speech that a speaker would not otherwise make,’ that statute ‘necessarily alters the content of the speech.’” Entm’t Software Ass’n v. Blagojevich, 469 F.3d 641, 651 (7th Cir. 2006) (quoting Riley v. National Federation of Blind, Inc., 487 U.S. 781, 795, 108 S. Ct. 2667, 101 L. Ed. 2d 669 (1988)). As the Supreme Court itself has noted, this type of compelled speech is “presumptively unconstitutional.” Rosenberger v. Rector & Visitors of the Univ. of Va., 515 U.S. 819, 830, 115 S. Ct. 2510, 132 L. Ed. 2d 700 (1995).

Leon recognized that the government may, sometimes, compel commercial speech in order to protect consumers from confusion or deception. However, the court held that these regulations did not further those interests.

First, after reviewing the evidence here it is clear that the Rule’s graphic-image requirements are not the type of purely factual and uncontroversial disclosures that are reviewable under this less stringent standard. 12 To the contrary, the graphic images here were neither designed to protect the consumer from confusion or deception, nor to increase consumer awareness of smoking risks; rather, they were crafted to evoke a strong emotional response calculated to provoke the viewer to quit or never start smoking. Indeed, a report by the Institute of Medicine—an authority chiefly relied upon by the Government—very frankly acknowledges this very purpose. SeeDefs.’ Opp’n at vi; Institution of Medicine, “Ending the Tobacco Problem: A Blueprint for the Nation” (Richard J. Bonnie ed. 2007) (“IOM Report”) at 290-91. According to the IOM Report, “[i]t is time to state unequivocally that the primary objective of tobacco regulation is not to promote informed choice but rather to discourage consumption of tobacco products, especially by children and youths, as a means of reducing tobacco-related death and disease.” IOM Report at 291. Further, “[e]ven though tobacco products are legally available to adults, the paramount health aim is to reduce the number of people who use and become addicted to these products, through a focus on children and youths,” and, therefore, the “warnings must be designed to promote this objective.” Id.

The court scolded the government for not even considering the obvious First Amendment implications of some of the requirements, and debunked the “dodge” that neither the court nor the FDA has the authority to second guess Congress.

As the parties have conceded, there is no evidence that Congress even considered the First Amendment implications when drafting the Act.See SJ Tr. 30:10-13 (defendants); 42:3-13 (plaintiffs). To say the least, implementing a Final Rule consistent with a congressional mandate does not require a Court to hold that the Rule automatically passes constitutional muster. Congress must pass laws, and the FDA must implement final rules, that are consistent with the requirements of the Constitution.

The court held that the compelled speech was certainly content-based, and thus subject to strict scrutiny. The court found that not only did the government fail to show a compelling interest for the regulations, but that there were much more narrowly tailored ways of achieving its goal of getting out the anti-smoking message. The government had much more constitutionally acceptable means at its disposal to achieve its goals. “because Congress did not consider the First Amendment implications of this legislation, it did not concern itself with how the regulations could be narrowly tailored to avoid unintentionally compelling commercial speech.”

This is one of those cases where the party seeking shelter under the First Amendment isn’t exactly sympathetic. I personally despise cigarettes, the smell of them, the look of them, and the behavior of most who partake. (prior controversial post here) Hell, even the nazis knew that smoking was bad for you. No matter how pristine of an area I find in which to hike, I have yet to fail to find a cigarette butt waiting for me. Lung cancer recently killed an old friend of mine. My own mother, who never touched a cigarette in her life, suffers from maladies that are attributable to second hand smoke. The only thing that I actually find insufferable about living in Las Vegas is the ubiquitous smoke.

That said, I adore this decision. The court correctly found that the government doesn’t get to come up with its favored position and then enlist private parties as its propaganda agents. Not even when its goals might be noble, proper, and helpful.

I kind of like this French anti-smoking ad.


Judge should review history of First Amendment

March 1, 2012

Pennsylvania District Judge Mark Martin needs to review his First Amendment law a little more carefully. Ernie Perce, an atheist who marched in a Halloween parade last year dressed as “zombie Mohammed,” was before Judge Martin after he alleged he was attacked by Talaag Elbayomy, a Muslim who took action after he witnessed Perce’s costume.

Perce wore a turban and a long, fake beard and painted his face green. During the parade, he yelled the phrases “I am the prophet Mohammed! Zombie from the dead!” He marched with another protestor, who was dressed as a zombie pope, carrying a banner that read, “The Parading Atheists of Central Pennsylvania: Ghoulish, Godless, God-awful.” According to Perce, Elbayomy attacked him, and Elbayomy was charged with harassment.

Judge Martin dismissed the charges against Elbayomy and scolded Perce, telling the protestor he had been insensitive. He also called Perce a “doofus.”

“You have that right, but you’re way outside your bounds of First Amendment rights,” Martin said, according to CNN. “I think our forefathers intended that we use the First Amendment so that we can speak our mind, not to piss off other people and other cultures, which is what you did.”

To the contrary, our forefathers intended that all U.S. citizens be allowed to criticize anyone they chose. The very first American citizens often criticized Great Britain, who they viewed as overly oppressive to the colonists. You can bet that the Brits were none too happy about that. The purpose of the First Amendment is to ensure that all people are protected when expressing their views, even if such views are unpopular. As GW Law professor Jonathan Turley pointed out, “People like Thomas Paine spent his entire life ticking off people across the colonies.” Another founding father, Thomas Jefferson, was hostile to the Catholic Church and criticized it often.

Perce was within his right to express his religious beliefs as an atheist, and if Elbayomy had expressed his dissent in a non-violent manner, he would have also been within his right. Sure, the thrust of the First Amendment isn’t to promote behavior that offends other people, but that is beside the point. Just because Perce offended Elbayomy did not give Elbayomy free license to assault Perce.

Judge Martin’s rationale for dismissing the charges against Elbayomy most certainly should not have been because Perce intended to “piss off other people and other cultures.” This is exactly the sort of thing the First Amendment was intended to protect against. Yes, Perce’s costume was offensive to Elbayomy, but it didn’t rise to the level of fighting words—there were no “personally abusive epithets” required by Cohen v. California.  Judge Martin should not have let Elbayomy off the hook for assault just because Perce said something he personally didn’t like.

Judge Martin could learn a thing or two by looking back again at what the First Amendment actually protects.


Muslim judge in Pennsylvania limits 1st Amendment

February 24, 2012

From Charles Platt

A judge in Pennsylvania who just happens to be of muslim faith informed a plaintiff that the 1st Amendment doesn’t necessarily give you the right to “p people off.” The plaintiff had worn a “Zombie Mohammed” costume in a public parade in Mechanicsburg, thus enraging a muslim observer who ran forward and tried to choke the man until police intervened. Charges of harassment, filed against the muslim for trying to choke the demonstrator, were dismissed by the muslim judge. Details here.


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