Randazza: The Legal Battle Over Andrew Anglin Continues

December 5, 2017

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.”

Anonymous Comes for Hunter Moore – Moore’s Man Card Revoked

December 1, 2012

Anonymous has now targeted Hunter Moore.

In a release published today, Anon writes:

Greetings citizens of the world, We are Anonymous.

This is a call to all Anonymous worldwide, you have a chance to make a real difference in the lives of hundreds of bullied teenagers and protect them from real harm such as rape or stalking.

Hunter Moore, Founder of previous revenge pornography site http://www.isanyoneup.com is coming back stronger than ever from the shutdown of his previous website. This capitalist makes money off of the misery of others.

People submit pictures of others naked to his website and he posted their social networking profiles along with the pictures.

This time he is taking it a step further and plans to list physical addresses next to the victims pictures along with a map to their house, self proclaiming that he has singlehandedly enabled the stalking of hundreds.

His servers are up. he already has domains he is secretly testing and will go public soon. He hides behind a loophole of section 230 of the United States online decency act which states he cannot be held legally accountable for third party submitted content.

This is a call to all of anonymous. We Will hold hunter moore accountable for his actions, we will protect anyone who is victimized by abuse of our internet, we will prevent the stalking, rape, and possible murders as byproduct of his sites.

Operation Anti-Bully. Operation Hunt Hunter engaged. We are Anonymous, we are Legion, we do not Forgive, we do not Forget, Hunter Moore, EXPECT US. (source)

I applaud them for it. I do have one issue with the missive — I don’t think that Moore is as protected by Section 230 as he likes to believe.

But, lets set the legal issues aside for this post: Moore is a douchebag, and deserves everything that Anonymous may throw at him. Here’s why:

Once upon a time, girls weren’t all paranoid about being raped, having shit slipped in their drink, or being stalked. Then, douchebags discovered rohypnol, stalking, etc., which ushered in a new era of “Why has this asshole just showed up at my table with a drink in his hand? Does he think I’m an idiot?”

Now, thanks to these clowns, you need to convince the girl that she should have sex with you AND that you’re not going to rape her or cut her into little pieces. Girls who were once approachable are scared to death to even have a conversation with you in a bar. All because of douchebags who need to circumvent rejection with drugs. And stalking. Lots and lots of stalking.

The douchebag’s MO is to shit out a cloud of fear. That cloud of fear supports an ecosystem that only benefits two kinds of people — other douchebags and second-wave feminists who absolutely love women in fear, because it makes their bullshit message resonate with just enough terrified women to keep a few of them signing up for their classes. Never forget the best way to control behavior is through FEAR. Just like the TSA, fear creates a justification for existence. There is the implied message of “If you challenge me, I’ll fucking spank you, so you better choose wisely.” But, if you take away fear, the assholes evaporate.

Involuntary Porn sites (like those run by Hunter Moore, Eric Chanson, Craig Brittain, and Chance Trahan) are the online equivalent of the asshole who goes to a bar with roofies in his pocket, or who stalks a girl who won’t give him the time of day. They punish all women through fear because they got rejected by their high school prom date or some chick in a bar or…whatever. They get off on the smell of fear and the resultant power over a woman and this is the drug that gives them the warm tinglys.

Imagine if no women had to live in fear of a shithead ex-boyfriend or these dickless fucks. Forget the morality of what they do, if you want, and think about from a purely utilitarian / economic perspective. Without these nimrods, a woman would always feel comfortable letting you take naked pictures of her. Women would feel comfortable sending you those pics as a “hey good morning” present. More naked pictures of girls means a better world for everyone, in my humble opinion.

Real men don’t get off on scaring women. Real men get off on trying to take that fear away.

Not because we are nice, or chivalrous. OK, some of us are, but more importantly, it’s because we want more naked pics and Hunter More and Craig Brittain are fucking with that.

So fuck you, Hunter Moore. Fuck you, Eric Chanson. Fuck you, Chance Trahan. And Fuck you, Craig Brittain.

Any man who gets off on putting women in fear loses his man card.

Good hunting, Anonymous.

Judge rules court has no personal jurisdiction over Faceporn.com

March 6, 2012

U.S. District Court Judge Nathanael Cousins recently denied Facebook’s motion for default judgment against Faceporn.com, a website operating out of Norway, for trademark infringement. Judge Cousins said the court lacked personal jurisdiction over the defendants and recommended that the case be dismissed.

Facebook originally brought suit against Thomas Pedersen and Retro Invent citing ten causes of action, including trademark dilution, violating the Facebook mark and wall mark, among others. The court concluded that Facebook failed to show that the defendants had purposefully directed their activities at California, pursuant to the three-pronged Calder test. In order to show that a defendant expressly aimed the intentional conduct at a forum state, the Ninth Circuit requires that the plaintiff show “something more.” The court determined that Facebook failed to show “something more” because “they did not establish that “Faceporn’s users in California were an integral component of Faceporn’s business model and profitability.”

Instead, Facebook attempted to argue that jurisdiction was proper because the defendants intended to target Facebook by “offering a pornographic version.” Facebook further claimed that the plaintiff can establish that nonresident defendant aimed its conduct at the forum by showing that the defendant illegally copied elements of a plaintiff’s mark for the purpose of competing with the plaintiff.

The court reasoned that this argument failed because Facebook and Faceporn are not in direct competition with each other, and therefore Facebook could not prove that the defendants’ conduct was directed at California. Additionally, the court said that Facebook failed to show how Faceporn “garnered revenue from their operation of Faceporn at Facebook’s expense or that Faceporn has diverted any of Facebook’s potential customers.”

Had Faceporn more directly targeted Facebook’s audience, Facebook might have been able to establish personal jurisdiction. But Judge Cousins correctly assessed that the audience for pornography is much more narrow than the audience for a general social networking site.

Read the full order below.

Facebook v. Pedersen

World of Warcraft promulgates epic 7th Circuit opinion

February 29, 2012

In an opinion so bizarre it is only fitting to be released on Leap Day (February 29), the Seventh Circuit ruled on the appeal in U.S. v. Lucas today.  The order is available here, and the case originated from the Western District of Wisconsin.

In the appeal, Lucas argues that the district court committed errors that resulted in a too-long sentence.  The Seventh Circuit disagreed.  Like most disputes, the one between Lucas and his victim, a minor known only as “CG,” arose over money:

Lucas became acquainted with CG while playing an online video game, World of Warcraft. While playing the game, Lucas began sending sexual messages to the minor asking CG to send naked pictures of himself. CG refused, and placed Lucas on a World of Warcraft “ignore list.” But Lucas became fixated on CG, and found other means to contact him. He offered CG $5,000 in online “currency” if CG would remove him from the ignore list. CG agreed, but soon after Lucas again began sending him sexual messages. CG again placed Lucas on the ignore list, but this only served to infuriate Lucas. Lucas began sending threatening messages, telling others that he intended to kill CG, and demanding the return of his “gold.” (source at 2)

Since bringing a civil theft suit against a minor who you solicited for n00ds is generally a very bad idea, Lucas was left to take matters into his own hands.  He did so by getting strapped.

Lucas concocted a detailed plan to kidnap CG. He began by building a massive arsenal of weapons rivaling that of a local police department, including rifles, hand- guns, stun guns, canisters of pepper spray, handcuffs, restraints, and other various law enforcement and military equipment. (source at 3)

And, as if proof was needed, Lucas once again demonstrated that you can’t trust kids to keep their stupid mouths shut.

[Lucas] learned CG’s home address by contacting another minor in Madison, whom he had also met while playing video games online. The minor was willing to divulge the address in exchange for $500 (in actual, rather than virtual, currency). (source at 3)

But wait, there’s more!

Finally, Lucas took steps to prepare his vehicle for the kidnapping. Lucas had his car outfitted to resemble a police vehicle, with large antennas in the rear and a pullbar in the front of the vehicle. Lucas then attempted to have an automotive shop remove the emergency release latch from the trunk of his car, presumably so that he could transport CG without fear of his escape. When he examined the car, the shop employee noticed that the inside of the trunk had been lined with a clear plastic cover. (source at 3)

Lucas then drove 20 hours to Madison, Wisconsin to retrieve CG.  He identified himself to CG’s mother as a member of the “National Security Recruiting Department,” which she met with incredulity due to his unkempt appearance and affiliation with an ill-defined law enforcement agency.  Undeterred, Lucas drew a gun on CG’s mother, aiming it at her face.  However, CG’s mother was quick to react and shut the door before Lucas could fire. (source at 4)

Having long crossed the point of no return, did Lucas double-down and invade the house, determined to retrieve CG and get his $5,000 worth?  Surely this plot had already required a greater investment, and Lucas, in CG’s driveway with his handgun drawn, was in too deep to quit – or so it seemed.  No; when confronted by a closed front door, Lucas turned tail and drove the 20 hours right back to Massachusetts. (source at 4)  Two days later, he was arrested there.

Once arrested, Officers found a military-style arms cache, as well as a makeshift outdoors torture basement seemingly inspired by Silence of the Lambs.

Officers recovered two loaded handguns, ammunition, two stun guns, three canisters of pepper spray, seven pairs of handcuffs, twenty-eight flex restraints, three rolls of duct tape, one box of latex gloves, three military style knives, and other miscellaneous items from the trunk of his car. In a wooded area outside of Lucas’s home, officers discovered a cave where Lucas had stockpiled even more weapons. Inside the cave, officers also found two holes Lucas had dug measuring five-feet by ten- feet by two-feet. (source at 4)

Based on these facts and other evidence adduced at trial, District Judge Conley (W.D. Wis.) gave notice of his upward departure from federal sentencing guidelines and imposed a final term of 210 months – 17.5 years, an 18 month upward move from the maximum 192 months provided by the guidelines for all the crimes Lucas was convicted of committing.  The Seventh Circuit found that the district court did not commit any procedural error.  Furthermore, the court of appeals held that the sentence was not substantively unreasonable, and furthered a proper purpose.

Criminal sentences in America are wildly out of line with the harm done by the crimes they punish.  Nowhere is this more evident than in the area of narcotics crimes.  In my experience, however, the Western District of Wisconsin is attuned to this reality and has no desire to be punitive for its own sake (and as a federal judge, why would you – you have job security for life).  But this is one of those cases where the defendant’s conduct makes it hard to impose a lighter sentence, and recidivism appears likely. 210 months is an awfully long time.  In this case, though, it may be long enough to keep Lucas outside of the public during his most destructive years.

Blasting people on twitter – not cyberstalking!

December 16, 2011

By J. DeVoy

Pundits were concerned earlier this year when the U.S. Attorney for the District of Maryland brought a criminal action against William Lawrence Cassidy.  His alleged crime?  Posting 8,000 harassing twitter messages about Alyce Zeoli, a buddhist leader in Maryland.  The Court dismissed the Government’s case, as Cassidy’s anonymous speech addressed a topic accorded the highest constitutional protections: Religion.

Admittedly, some of the messages were witty.  Take this poetry, for instance:

Ya like haiku? Here’s one for ya. Long limb, sharp saw, hard drop

Some were more esoteric, such as “A thousand voices call out to (Victim 1) and she cannot shut off the silent scream,” while others got to the point: “Do the world a favor and go kill yourself. P.S. Have a nice day.”

The Court’s Order  is a solid win for the Defendant – and free speech.  Within it, the Court found that 18 U.S.C. § 2261A(2) is unconstitutional as applied to the defendant.  Not only does the First Amendment kick ass, it’s now a tool, albeit a slow-working one, against the federal government’s overcriminalization of daily life.

I strongly encourage reading the whole Order, but most importantly, there’s this:

However, it is questionable whether the same interest exists in the context of the use of the Internet alleged in this case because harassing telephone calls “are targeted towards a particular victim and are received outside a public forum.” United States v. Bowker, 372 F.3d 365, 379 (6th Cir. 2004). Twitter and Blogs are today’s equivalent of a bulletin board that one is free to disregard, in contrast, for example, to e-mails or phone calls directed to a victim. See id. at 378 (contrasting why a federal telephone harassment statute serves a compelling governmental interest and a statute that made it a criminal offense for three or more persons to assemble on a sidewalk and to be “annoying” to a passerby did not serve a compelling governmental interest). (emphasis added)


No man is an island, but WIPO is no man.

August 20, 2010

By J. DeVoy

Catching up on the backlog of interesting stuff I couldn’t address during bar prep, Red Bull lost the UDRP proceeding seeking the transfer of domain names that an Austrian court ruled belonged to Red Bull.

In 2003, Red Bull held the Taurus Rubens, an air festival/art show that hopefully had more professional participation than its Flugtag events across America.  Anticipating that the event would become an annual one, Reinhard Birnhuber registered the domains taurusrubens.com and rubenstaurus.com among others.  When Red Bull discovered this, it offered Birnhuber € 500.  Birnhuber demanded one million euros.

In April 2005, Red Bull registered its Taurus Rubens as an Austrian trademark and commenced a UDRP proceeding against Birnhuber before the WIPO.  Red Bull lost.  Though the decision, Red Bull GmbH v. Reinhard Birnhuber D2005-0862, noted that Birnhuber’s registration of the marks was probably in bad faith – Birnhuber owned several other Red Bull-related domain names – Red Bull had no standing under the UDRP rules.  Because Red Bull had registered the Taurus Rubens trademark years after Birnhuber registered the relevant domains, the company had no right to appear before WIPO and its complaint was dismissed.

Red Bull then filed suit in an Austrian commercial court, winning against Birnhuber.  Birnhuber, who was found to have registered the domains in bad faith, appealed the lower court’s decision, but again lost.  With final judgment in its hands, a speedy transfer of domain names pursuant to the court’s order seemed all but certain for Red Bull.  Indeed, any rational person would agree.

Birnhuber balked at transferring the domains to Red Bull, and the company initiated a second UDRP proceeding in 2009, D2009-1598.  Red Bull lost.  The WIPO panel held that the Austrian court’s determinations were of no merit or relevance in the case, and the panel’s own determinations should stand as the final judgment.  With a few pages of paper, the WIPO arbitrators blinked several years of legal proceedings and costs out of existence.  Why would WIPO want courts horning in on its (very good) gig?  By excluding them, WIPO can have full control over the UDRP parallel universe.  From Google Translate, the opinion has this to say:

The panel can see in the above circumstances, no new facts or actions that would warrant a new assessment of the case. In this respect, the complainant fails to recognize that not only “new actions” to the resumption of proceedings are necessary, but this also has to be relevant.

The correct legal result is more than the enforcement of that ruling in Austria, especially as the present legal request (transfer of the domain name) covers with the sentencing order of the Austrian court. Since both parties are domiciled in Austria, is likely a priori, no specific enforcement problems arise. WIPO panels can so far do not replace the state authorities.

A cold, expensive reminder that the bare right to something does not translate to its possession, especially on the internet.

Red Bull’s lawyers dun’ goof’d by apparently ignoring common law trademark rights, which are recognized by the UDRP.  In BMEzine.com LLC v. Gregory Ricks / Gee Whiz Domains Privacy Service, D2008-0882, a dispute handled by Randazza, BMEzine.com LLC (“BME”) argued that it had been using the mark BME in its line of business for 14 years before the dispute arose, and it had become distinct and famous within the body modification industry as a result.  Respondent, Ricks, was found to have registered the bme.com domain in bad faith because of BME’s continuous use of the mark, making Ricks’ use of bme.com confusingly similar to BME’s mark.  Accordingly, the panel ordered Ricks to transfer the bme.com domain to BME.  If this approach had been effectively used in the Red Bull cases, it could have resulted in different panel holdings and circumvented years of litigation in Austrian courts.

Internet Solutions Corporation v. Marshall Update

June 14, 2008

I blogged about this case a few weeks ago here.

The Plaintiff has appealed to the 11th Circuit, and my firm has taken Ms. Marshall’s case, pro bono, to defend the appeal.

M.D. Fla. Internet Jurisdiction Case – Internet Solutions Corporation v. Marshall

April 8, 2008

The Middle District of Florida ruled yesterday in Internet Solutions Corporation v. Marshall, dismissing the case for lack of personal jurisdiction. The plaintiff, a Florida corporation, was upset about blog postings by Ms. Marshall that criticized the company. The company filed a defamation suit in Florida, hoping to drag Ms. Marshall here to defend the case, and to take advantage of the fact that Florida law does not protect free speech any more than the federal Constitution forces it to.

While this case is not really a landmark case — it followed well-worn grooves in the law — it is important to publicize these cases as much as possible. Time and again, I see attorneys in this state ignore their oath of attorney and file defamation suits here, hoping to simply punish the defendant by making him or her defend the case here.

Plaintiffs attorneys who try and skirt the due process clause inevitably try to rely on Calder v. Jones. However, as the Middle District of Florida shows (and as have other courts), this is a pre-internet case, and does not apply to websites the way it applies to newspapers.

ISC contends that Marshall committed tortious acts by posting defamatory comments on her website and targeting individuals in Florida. ISC further alleges that Marshall’s conduct resulted in contact or communications “into” Florida. However, “the minimum contacts must be ‘purposeful’ contacts.” Goforit, 513 F. Supp. 2d at 1329 (citing Beverly Hills Fan Co. v. Royal Sovereign Corp., 21 F.3d 1558, 1565 (Fed. Cir. 1994)). In Calder v. Jones, the United States Supreme Court found that an alleged single tortious act by a National Enquirer editor and reporter in Florida was sufficient to satisfy minimum contacts with the forum state of California. Calder v. Jones, 465 US 783, 789-790 (1984). The two National Enquirer employees were Florida residents who were sued in California for libel.

The court reasoned that the writers purposefully availed themselves by specifically targeting a California audience, making large distributions into California, and publishing articles about a California resident. Id. The court further explained that the alleged tortious conduct was purposeful and calculated to cause injury in California and therefore the editors must have reasonably anticipated being haled into a California court. Id. at 790-791. Unlike Calder, in the case at bar there is no evidence that Marshall specifically targeted Florida residents. Marshall’s website was not only made available to Florida residents, but the website was equally accessible to persons in all states. Under the Calder analysis, even if Marshall’s alleged tortious conduct occurred or resulted in injury in Florida, the single tortious act would not be sufficient to satisfy minimum contacts absent a showing of purposeful availment. According to Marshall’s affidavit, her contacts with Florida were nearly nonexistent.3 (Doc. 5 at 2-4.) ISC has not provided evidence to the contrary. Besides the web site postings do not establish any Florida-specific postings or conduct by Marshall.

Time and again, when these cases are brought before intelligent, thoughtful, and reasonable judges, the judges side with the due process clause of the Constitution, and not plaintiffs’ attorneys who knew, or should have known, that bringing suit here was improper.

The decision is here. ISC v. Marshall, Case No. 6:07-cv-1740-Orl-22KRS (M.D. Fla. April 7, 2008).

For background on the case-in-chief take a trip over to the Citizen Medial Law Project post on the case.

New Jersey’s Long Arm of the Law

August 9, 2007

New Jersey’s long arm statute seems to have stretched a little too far in this decision. In Goldhaber v. Kohlenberg, the New Jersey Court of Appeals ran through a litany of internet jurisdiction cases, most of which held that a defamation defendant doesn’t get to sue in his home court — but must sue in the speaker’s home court. Unfortunately for free speech, the New Jersey court decided that since the speaker talked about Jersey a little too much, then Jersey jurisdiction it is.

The author not only knew that plaintiffs resided in New Jersey, he knew the municipality in which they resided and made specific disparaging references to that municipality in many of his postings. Certain of his postings were made in response to plaintiffs’ replies to the offending comments. He also made insulting comments about that municipality’s police department. In addition, he referred to plaintiffs’ neighbors in the apartment complex in which they resided and at one point even posted their address. Conduct of that nature and its connection to New Jersey “are such that [defendant] should reasonably [have] anticipate[d] being haled into court” here.

See also this post.

2d Circuit Internet Defamation/Jurisdiction Case

June 29, 2007

Internet jurisdiction is a mishmash of theories that provide little predictability. However, I have often argued that when it comes to defamation actions, the rule should be that jurisdiction is only proper where the publication took place.

Think about it. Lets say that you have a blogger in a civilized state, like Oregon, that protects free speech to an extent greater than that required by the First Amendment. Said blogger is used to exercising his free speech rights as if his rights were protected by Article 1, Section 8 of the Oregon Constitution. He writes about someone in Florida, which is generally not very protective of Free Speech rights. Should the speech be subject to Florida’s standards Oregon’s? If you believe that the state where the subject of the defamation is located should have jurisdiction, you haven’t thought the issue through. Imagine a travel writer in Maine, writing about hotel stays on a 50-state tour. Would he properly be hauled into court in each and every state if the hotel owners found the reviews to be unflattering? What would that do to our notions of free expression?

Just as importantly, should a censorship-monkey who wants to silence the speaker be permitted to drag him all the way across the country to defend his actions? That alone would create a deathly chilling effect. I don’t often write about Microsoft, but what if I did? Should I have to presume that I will wind up in court in Seattle?

Fortunately, courts seem to be consistent when it comes to internet jurisdiction in defamation actions. The Second Circuit is the highest court to rule on this issue so far. It held in Best Van Lines v. Walker that New York’s long-arm statute did not permit New York courts to exercise jurisdiction over a defendant who published his opinions in Iowa. This is a well-reasoned case, and the latest in a good trend. Lets hope that the trend continues so that when censorship-monkeys want to try and silence someone and defile the First Amendment, then the censorship-monkeys should be the ones inconvenienced — not the citizen who is exercising his First Amendment protected right to free speech.

See also

Lexington v. Siskind. This was a Florida Circuit Case where a builder, Lexington Homes, tried to haul a New Yorker down here to defend his criticism of the company.

Dring v. Sullivan. Same principles, successfully argued by Jon Katz.

Don’t Date Him Girl Suit Thrown Out on Jurisdictional Grounds

April 11, 2007

This is interesting from an internet jurisdiction perspective – but also as another reminder that there is no better way to make sure that lies about you are repeated, ad nauseum, than by filing a lawsuit over them. Nevertheless, this stuff is probably defamatory and the defamed individual certainly has a point. Some bitter ex girlfriend posted that he was unfaithful, has an STD, etc.

However, the Pennsylvania court held that since the Defendant didn’t have strong contacts to the forum state, the court could not exercise jurisdiction. This seems to follow a trend in internet jurisdiction cases in the libel context.

Here are a few other internet defamation cases that were eventually thrown out on jurisdictional grounds.

Lexington v. Siskind was decided similarly as was Dring v. Sullivan, 423 F. Supp. 2d 540 (D.Md. 2006) (argued by fellow First Amendment Lawyers’ Association member, Jonathan Katz).

Of course, internet jurisdiction cases in general are all over the place. But, it seems that courts recognize that when it comes to free speech rights, the rules are a little different. If you can drag someone in to court 3,000 miles from home for a defamation action, don’t you essentially automatically win? Sure, the defendant could prevail, however if courts broke from this trend, it would be terribly chilling. Fortunately, most courts seem to get this one right.