Email to an asshat about a free speech issue

September 24, 2011

I’m on a few list servs. I won’t say which one this originated on. But, lets just jump to what I said:

11 muslim students stood up to heckle the Israeli ambassador. Orange county prosecutor charged them with disrupting an event. While they may not have a right to disrupt the speech without being dragged out of the place, a criminal conviction for political speech is bullshit.

And if it had been 11 Yeshiva students disrupting a speech by a Palestinian, they’d get the medal of freedom.

I agree with all the nice things that have been said about Chemerinsky here, but his balls shriveled up into raisins over this event. (It took place at UC Irvine).

The response: It is “bullshit,” and “anti-semitic.”

Lets unpack that…

Bullshit? Maybe. He, you, everyone is entitled to their own opinion. I might even change mine, and one day repudiate my own opinion as bullshit.

Anti Semitic?

Don’t you love that one?

Since I’ve been a bit off my game blogging lately, I thought I’d mail one in here and just straight up share what I wrote in response to that.

Dear ______________,

Today, 11 men were convicted of a “crime.” The “crime” was “disrupting a speech.” The speech they disrupted was that of the Israeli ambassador. (source)

The “disruption” lasted about 8 seconds per “criminal.” In total, it was about a minute.

Interrupting him might not have been the most constructive way of making their point, but we cant lose sight of what they did. Why they did it. This was political speech. This was the most sacred kind of speech. And, this target was the least deserving of the law’s protection when speech is concerned — a public figure.

The Israeli ambassador was inconvenienced for less time than it takes to boil an egg.

And yet, for that inconvenience. That indignity. That quasi lese majeste. Eleven men were convicted of a crime.
The men were Muslims… The place is the most shocking part – Orange County, California, USA.

Although I despise the “what next?” rhetorical device… I just so need it here.

What next?

Hecklers at comedy clubs could be dragged out and thrown in the back of a cruiser where a drunk just puked? At least one lawyer would have to go to jail after every hearing. Fox news would essentially be illegal in California. My poor wife and I would probably each be witnesses in criminal trials against each other (privilege be damned!!!)

Criminally prosecuted for interrupting a speech.

We could all be arrested, every day, for this “crime.”

No we couldn’t.

Don’t insult my, or your own, intellect by thinking that this could have happened to anyone. Imagine if this had been a member of the Cuban government up there and some exilos from Miami showed up to yell. Do you think for a minute they would be charged, let alone convicted of a crime? Koreans showing up to voice their displeasure at a dignitary from the Hermit Kingdom? Jews in Skokie shouting down a nazi? Hell, nazis coming to Bensonhurst shouting down a Jew.

No, not even nazis get charged with a crime for merely interrupting a speaker.

And yet, for taking the position that these men were selectively prosecuted. For taking the position that this was all about their ethnicity and the content of their speech, some asshole thinks that I’m being “anti semitic.”

It is unfortunate. Because it is that kind of mentality that is at the root of the very reason these men were at odds with the man on the stage. Both of them have thrown in with their tribe rather than with their species. Like crabs in a pot, needing no lid, they would rather gouge out their own eyes than see through those of the other.

And it is that mentality that makes Palestinians unable to listen to Israelis. It is why Israelis can’t possibly back down to any criticism. It is why there are those who are so blind to their tribe, rather than to their entire human family, who decide that anyone who speaks against their interests in any way must be branded. He must be marked with the label of “anti-semite.”

I don’t really think it is my place to judge, but I’m gonna do it anyway. You reverse the polarity on that position, you don’t get a pretty philosophy. So, perhaps these guys did try and win the debate by shouting down the other speaker. That kind of conduct deserves a flag on the play. But what do you think trying to brand someone as something so abhorrent is? What do you call that, when you know it is a lie, you don’t care that it is a lie, but you say it because you know that it will score nice, cheap, points, and more than half the people who see it as bullshit will be afraid to call your ass out.

What do you call that?

I call that a pussy asshat move. So fuck you sir. Fuck you very much.

And really it is — for two reasons. One, to call oneself a First Amendment attorney and to think it is just that these 11 men were convicted of a crime — not merely removed from the room — and they were convicted not for resisting. Not for doing anything that hurt anyone else.

They.
Interrupted.
A.
Speech.
For.
A.
Minute.

In order to express their opinion on a matter of public concern.

And they were convicted of a crime.

It is sad enough that one would argue against the notion that this is wrong. But, like I said up top, everyone is entitled to their opinion on that. You know where I stand.

But, what a pussy asshat move to try and throw the “big bad bigot” card.

I have tried to think that I was wrong for taking that position. I’ve tried to see it through someone else’s eyes, and the only person I can see with eyes like that is a small minded and fearful person. Someone so insecure, so tepid, so small, that their only defense is to try and lob a bomb. Wanna play rhetoric like that? Here: It is rhetorical terrorism! It strikes at a target that should not be hit, for a reason that doesn’t deserve the energy, and he who employs it has already lost the high ground when they resort to it.

Of course, this is an equal opportunity beta trait. There’s the black guy that screams “racist” to do the same thing. The feminist who whines “sexist” if you disagree with her. You know what, jerkoff?

Those words MEAN SOMETHING.

If you just throw them against anything with which you disagree, you wind up pounding them thin to the point that they don’t mean anything anymore. You can even numb the alarm to those who really are those dangerous things. You create muck in which those dangerous things thrive.

So, I should have added to the end, “not only is a pussy asshat move, but it is anti semitic.”

But, I refrained.


Do you know who Ruth Orkin is?

August 19, 2011

By Tatiana von Tauber

Ruth Orkin's "American Girl in Italy"

Recognize this photo?

Ruth Orkin photographed it in the early 50’s after meeting another young woman, Ninalee Craig (the model) in Italy while traveling solo.  Together they attempted to capture the experience of traveling alone in Italy. 

Some have claimed this photo is a symbol of harassment.  While Craig claims it’s a symbol of having a “wonderful time”  (source), I think it’s more a symbol of the kind of power feminine beauty has in Italy – and not much has changed in 60 years.  In Germany guys don’t make gestures, in America construction worker comments have killed the romantic potential but in Italy and in France, there still exists a “romance-worship” to the female.  With that comes a level of sexualization, sure, but when placed into the correct context, it’s a turn on rather than any symbol of harassment.  This photograph is a compliment.

By default of existing we are looked at.  Where some see judgment other see compliment.  If more men weren’t afraid of being accused of sexual harassment when none was intended more women might enjoy the compliment of a whistle or two.  Attention isn’t always comfortable but no attention for too long makes for an old, bitter maid.


Grady Judd, at it again, in America’s Wang

June 16, 2011

By Marc Randazza

Following a three-month-long investigation of Theresa and Warren Taylor – Theresa being better known as “Kimberly Kupps” – the Polk County sheriff arrested them both on charges of promotion and distribution of obscene material.  The crime?  Creating pornography in their own home, then selling it both on their paysite and the popular distribution site clips4sale.com. (Source.)

Sadly, this is par for the course in Polk County.  The same Polk County where Philip Greaves, then living in Colorado, was indicted on obscenity charges for writing a book concerning pedophilia.  Let’s not forget the 15-year-old who was suspended from using the bus for three days after he passed gas on it.  And then there was the antique store owner who was charged with obscenity production for taking nude photos of willing participants – even if, at first blush, child porn charges may have been more appropriate.  Maybe I have Polk County all wrong and this is all the doing of dedicated gestapo fuckhead Sheriff Grady Judd.  But then again, Polk County is home to all the drooling, meth-addled retards who keep electing him.

It would be comforting to write this off as another Judd-ism, write a blog post about it, and put the incident behind me.  I don’t even live in Florida anymore; to hell with the place.  This case, however, goes too far.  Consenting adults, in the sanctuary of their own home, filmed themselves having sex — and by all accounts, the content they produced was pretty vanilla (e.g. no fisting, no watersports, no extreme bondage or BDSM, etc.).  In addition, the couple wasn’t exactly rolling in dough from this venture: by available reports, their porn activities brought in $700 per month. (Source.)
Enough for a few nice meals, sure, but not enough to finance a credible criminal defense.

Never one to let common sense or the First Amendment to come between him and a camera, Judd went to the press shortly after these arrests. Fox 13 had the initial interview.

“We want a wholesome community here, we don’t want smut peddlers,” Judd said, “and if they try to peddle their smut from Polk County or into Polk County we’ll be on them like a cheap suit.”

[…]

“They should heed the warning: If you engage in creating or selling obscene materials we are going to lock you up, and we enjoy that,” he said.

The profundity and wisdom of Judd is matched only by Yoda himself.  The last time I checked – I’m only a First Amendment attorney – “smut” is not a prohibited form of speech, much less a recognized category of speech.  Child porn is not protected by the First Amendment.  Nor is obscenity.  Smut, whatever the hell it is defined as, is protected by the First Amendment, as is everything not falling within the child porn and obscenity exclusions.  I’ll refrain from picking the low hanging fruit pointing out the hilarious irony of a peckerwood inbred like Judd mocking a cheap suit.

To Judd, this is a big game. He “enjoy[s]” when he can “lock you up.”  He’s not going to let a few founding principles get in the way of getting his jollies.  After a perusal of my prior coverage of Polk County affairs, I realized I’d left something unsaid that I want to say right now.

Grady Judd: fuck you.

And to the people of Polk County who enable this kind of bullshit for decades on end, fuck you, too.

When I’m not blogging, I’m busy running a law firm, Randazza Legal Group.  You may have heard of it; I have the privilege of defending bloggers, decorated war veterans and porn companies from attacks on their free speech rights.  I do not represent Mrs. Taylor or her husband.  I will, however, be making a donation to their legal defense fund.

I encourage everyone else who values free speech to do the same.  Inability to pay should not be a barrier to justice, especially in a case like this where the fundamental right to free expression is at stake.  Making only $700 per month from their adult business operation, Judd probably just expects the Taylors to roll over and plead guilty – quickly.  They shouldn’t, and we shouldn’t let them.  I do not know if this will be the case, but it’s time for someone to end Grady Judd.  Not to beat him, to ruin him.  To bescumber his legacy and make his name forever synonymous with the worst, most oppressive kind of home-grown terrorism that he’s inflicted onto the people of Florida, deserving though they may be, for decades.  I want him to have a forced, miserable retirement, and his children to quickly – in hushed shame – change their last names when he dies, to forever bury the shameful association.  It is long past time for Judd to be forced into the outhouse where he spends most of his time secretly thumbing through a crusty Fredericks of Hollywood catalogue from 1977, panting while doing so, forever. (Proverbially! rhetorical hyberbole ftw.)


Democrat shaming strategy beginning already

June 8, 2011

By J. DeVoy

In addition to last month’s anemic job growth, other numbers are mounting up against Barack Obama.  In particular, the youth who handed him his 2008 victory, are slowly deserting him.  With 85% of the class of 2011 moving back into their parents’ basements, it’s easy to understand why.  Yes, the president doesn’t control the economy, but he surely hasn’t made it better, or taken actions that would improve the situation – cutting spending, using whatever tools he has to end the Federal Reserve’s quantitative easing program (the most potent of which being to tell people what it is), and not getting into a land war in Libya would be good starting points.

Out of political ammunition and burdened by the yoke of being proven political failures, democrats are using the only blunt tool they can frantically grab: shame.  If you don’t support Obama, you’re racist.  It’s already happening, as the GOP’s initiatives are likened to Jim Crow-era America by the DNC.  As being merely accused of racism has become America’s high holy sacrilege, even if the claim is meritless, the social and professional stigma of not publicly supporting Obama will leave an indelible stink on all Americans who are not right-thinking and right-voting (and who have dulled their senses enough to find Jon Stewart funny).  Imagine the folly of those who dare to criticize him!

If Obama wins re-election, it won’t be based on substance.  There’s very little of it, and what we’ve seen is unimpressive.  Still waiting for those Bin Laden death pics, dude!  Instead, victory will be achieved by convincing average people that they’re bad – even worse, racist – for not attempting to fix something that’s very clearly broken.


A reason to swallow and a reason to spit

May 11, 2011

In his Valentine’s Day-themed editorial in Surgery News, “Gut Feelings”, Dr. Lazar Greenfield cited to a study that reported that semen has anti-depresseant and mood-elevating effects upon women. He concluded: “So there’s a deeper bond between men and women than St Valentine would have suspected, and now we know there’s a better gift for that day than chocolate.”

So ladies, that appears to favor the swallow side of the equation.

Of course, out come the feminazis, giving us a reason to spit. Feminist groups, who wished to remain anonymous, promised to protest any meeting or conference at which Dr. Greenfield was in attendance. As a reaction to the furor, Greenfield gave up his editorship of Surgery News. That wasn’t enough for the whining minions of cock-haters, so he was pressured to step down as President of the American College of Surgeons as well. (source).

And that just makes me want to spit.

Dr. Greenfield is an internationally respected surgeon. His joke was actually funny — well, unless you’re some dumpy bitch who hates the cock or anyone who possesses one. Then no jokes are ever funny. They are merely an opportunity to destroy a man.


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

March 2, 2011

Just so you understand, according to Sam Alito, corporations have free speech rights, but people do not.

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

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

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

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

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

At least that is what I believe.

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

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

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

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

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

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

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

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

Speech on a matter of public concern

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

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

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

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

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

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

Outrageousness of Speech is no impediment to its protection

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

But, lets dwell on the good part first:

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

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

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

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

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

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

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

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

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


Dan Snyder is butthurt, SLAPP suit ensues, Irony meter pegged

February 6, 2011

By Marc J. Randazza

Washington Redskins owner, Dan Snyder, seems to have awfully thin skin for a guy who owns a sports team named after a racial insult.

Snyder filed a frivolous defamation suit against the Washington City Paper (“WCP”) based upon an article “The Cranky Redskins Fan’s Guide to Dan Snyder.”

Snyder accuses the WCP of spreading “lies, half-truths, innuendo, and anti-Semitic imagery” to defame him, seeking $2 million in damages.  The amount is split between two claims, the first for defamation and the second for false light.  The “anti-semitic imagery” he complains of is a crude addition of horns, a unibrow and Anton LaVey-esque goatee to Snyder’s photograph in the WCP, which can be seen here.

No, your irony meter is not broken. It is actually reading 11. A guy who owns the Washington Redskins is complaining that someone created an allegedly racist drawing of him. And, anyone who thinks that “Washington Redskins” isn’t a bigoted term, I used to think the same thing. In law school, I was in a debate with a guy I’ll identify as “Steve B.” I was armed with my free-speech bona fides, and ready to pwn Steve in front of the whole class for being overly politically correct. With his opening shot, Steve looked at me and said “what would you think if they were called the ‘Washington Jigaboos?’ Because the way black people would feel about that is how Native Americans feel about ‘Redskins.'”

I immediately conceded. Steve was right. The debate was over.

Please re-calibrate your irony meters -- Dan Snyder, owner of the Washington *Redskins*; complains that this drawing is racist.

So, the owner of the Washington Jigaboos Redskins is pissy about someone supposedly using racist imagery.

On behalf of Native Americans, up yours, Dan Snyder. Up yours with a cactus grown in the driest part of the Navajo reservation.

But lets get back to the issue at hand:

Dave McKenna’s comprehensive compendium on Snyder’s questionable reputation, which gave rise to this lawsuit, is not the first time he offended Snyder’s sensibilities.  Snyder paints a paranoid picture of McKenna as a conspirator, evidenced in his November 24, 2010 letter to the WCP — sent less than a week after McKenna’s article hit the streets.  Because McKenna mentioned Snyder within the WCP and its blog 15 times in as many months, Snyder believed McKenna was attacking him to please his new bosses at Atalaya Capital, which acquired Creative Loafing and the WCP in August 2009. (source.)

Even so, it appears McKenna gave Snyder a fair shake.  Before McKenna’s article was published, Snyder’s wife went to the local media to defend her husband.  In an interview, she said her husband was now surrounded by ‘better people,’ and that he had ‘grown and he’s evolved.’ (source.)  The offending article even begins with the words “[w]e’ve been told a New Dan Snyder walks among us”!

Nevertheless, lets not forget that Dan Snyder is a wealthy man. He is a fabulously wealthy man. And we all know that the fabulously wealthy often believe that they are above being criticized by the rabble — and when the rabble forgets it, they need only spread their ass cheeks, let a few filthy pieces of silver fall from their milk-fed buttholes, and some swine of a lawyer will be lying underneath, mouth agape, happy to catch what might dribble from the sphincter of privilege — their oath, their ethics, and free speech be damned.

In nicer words, this is a classic SLAPP suit — not filed because it has a chance of success — but filed because the cost of defending it will be punitive enough to remind the little people that people who can afford to use helicopters as personal transportation vehicles do not like to be made fun of or criticized.

The first sign that this is a SLAPP suit? You need go no further than paragraph 1. The complaint states “Mr. Snyder is a public figure. As such, he accepts the right of the public and the press to criticize him or to express personal dislike, whether or not such expressions are justified by the facts.”

Precisely.

In other words, Mr. Snyder is going to need to leap over the “actual malice” standard laid down in New York Times v. Sullivan, 376 U.S. 254 (1964). In that case, the Supreme Court held that the First Amendment required that a public official libel plaintiff must establish, through clear and convincing evidence, that the defendant acted out of “actual malice.” That doesn’t mean that the writer must have acted out of malicious intent, but rather that the defendant published his words “with knowledge that it was actually false or with reckless disregard of whether it was false or not.” Later cases expanded this to encompass defamation suits by public figures, as well as public officials. See, e.g, Curtis Publishing Company v. Butts, 388 U.S. 130 (1967); Gertz v. Robert Welch, 418 U.S. 323, 351 (1974).

Public figures can, occasionally, prevail under this standard. However, the bar is so high that unless the case is flawless, it is unlikely to go anywhere except down the “expensive to defend” highway. Snyder knows this. His attorneys know this. But Snyder is a wealthy man, and his lawyers don’t mind the taste of feces in their mouths, as long as they are licking the foul substance off of Snyder’s coins.

Lets take a look at Snyder’s claims under New York law. New York is very protective of free speech — especially where the news media is concerned. What constitutes a statement of opinion is broad, and can even embrace language that in other states may be defamation per se, such as calling another person “unprofessional.”  See Amodei v. New York State Chiropractic Association, 160 A.D.2d 279, 280 (N.Y. Sup. Ct. App. Div. 2d Dept. 1990), aff’d 571 N.E.2d 79 (N.Y. 1991); Halegoua v. Doyle, 171 Misc. 2d 986, 991 (N.Y. Sup. Ct. 1997); Wait v. Beck’s North America, Incorporated, 241 F. Supp 2d 172, 183 (N.D.N.Y. 2003). (“Statements that someone has acted unprofessionally or unethically generally are constitutionally protected statements of opinion.”).

Despite Snyder’s melodramatic whining about McKenna’s negative opinion of him, even incendiary and inflammatory criticism of a subject is protected rhetorical hyperbole. See Greenbelt Coop. Pub. Ass’n v. Bresler, 893 U.S. 6, 14 (1970); Gross v. N.Y. Times Co., 623 N.E.2d 1163, 1167 and 1169 (N.Y. 1993). Even heavily caustic attacks on public figures are afforded the highest level of Constitutional protection. Hustler Magazine v. Falwell, 485 U.S. 46, 52 (1988).

The second cause of action is a bit trickier.  While the language reads like a false light claim, there’s a wrinkle here: According to the Citizen Media Law Project, New York doesn’t recognize the tort of false light. Costanza v. Seinfeld, 27 Media L. Rep. 2177 (N.Y. Sup. Ct. 1999), aff’d, 719 N.Y.S.2d 29 (N.Y. App. Div. 2001); Howell v. New York Post Co., 21 Media L. Rep. 1273 (N.Y. 1993)  That leaves Snyder with the tort of defamation by implication, which remains a form of defamation and thus subject to the same attacks set forth in the preceding paragraph.

Nonetheless, as the owner of the Redskins, Snyder has access to lawyers and the money to pay for them, and can inflict quite a lot of pain onto the defendants. Furthermore, even if the WCP fends off these claims, Snyder has made it clear that anyone smaller than the WCP had better be worried — criticizing him is not without its significant costs.

Mr. Snyder has more than sufficient means to protect his reputation. We presume that defending such litigation would not be a rational strategy for an investment fund such as yours. Indeed, the cost of litigation would presumably quickly outstrip the asset value of the Washington City Paper.” (source)

Snyder appears more butthurt than genuinely wronged. Unfortunately for him, or fortunately for us all, there still is no cause of action in the United States for intentionally butthurting a rich dude. Unfortunately for us all, win or lose, Snyder and his legal team just turned blew a cold wind across the free expression fruited plain.

J. Malcom DeVoy contributed to this post. Hat tip to Johnny Utah.


Captain Honors Update

January 5, 2011

A reader wrote this persuasive comment to my post on Captain Honors:

The XO of a US aircraft carrier needs to be more than a sphynx, he must be an absolute, unquestionable authority at all times. The XO is going to be the guy who gives the order to seal the hatch on flooding compartment which will guarantee your buddies on the other side will die. Such an order must be followed immediately and without hesitation for the survivability of the ship; you do not want sailors doubting the seriousness of anything coming from the CO or XO at any time, ever. There are crucial moments on these ships, and the Big E has had many sailors die, but when lives were on the line (she has had several deadly accidents and fires) the chain of command is inviolate due to the unwavering respect for the senior officers. The Enterprise carries nuclear-capable aircraft and nuclear weapons. The orders to release nuclear weapons must come from both CO and XO, so neither one of those guys should ever be seen as a friend you can joke around with and have a drink or two.

I do not see any issue with the content of the videos. It was a fucking joke, for fuck sakes. However, those are jokes that cannot be told by the XO whose voice follows the Captain for the release of nuclear weapons or who may legitimately order sailors to sacrifice their lives or the lives of their shipmates to save their ship. Captain Honors exhibited poor judgment that could harm the unquestionable respect for the chain of command.

I believe his dismissal is the appropriate remedy. I also believe criticism of the content of the video to be whiny petty ass bullshit.

I am persuaded by this comment that my initial call to “Honor” Captain Honors was misguided. While I support him because he is the victim of politically correct bullshit, I won’t say to “honor,” him in light of this persuasive argument.

Thanks, Chad.


Good News; Racism Solved

January 4, 2011

by Jason Fischer

Regular readers of the LS know how we feel about thought control through the implementation of Newspeak.  (We think it is retarded).

Apparently, there are at least a few out there who have a hard-on for eradicating crimethink.  In their latest effort, a newly sanitized edition of Mark Twain’s classic, The Adventures of Huckleberry Finn, will be published as part of a collection that is more suitable for classroom consumption, i.e., sans all uses of the “n-word.”  In its place, the publishers, NewSouth Books, have inserted the word “slave.”  Also deemed too offensive for print: “injun”

H/T Evren Seven


Honor Captan Honors – and piss on the crybabies who have a problem with him

January 4, 2011

Navy Captain Owen Honors was, until today, in command of the U.S.S. Enterprise. He made a series of raunchy videos three or four years ago. He was relieved of command today because of them. (source)

But despite the official condemnation from Navy leadership, the sailors who served under Honors on the “Big E” are coming to his defense on the ship’s Facebook page, calling the controversy a witch hunt.

“I too was on that deployment. Capt. Honors brought up our morale and provided well needed and appreciated comic relief. We were underway for long durations, supporting two theaters of war simultaneously, he brought many smiles to a worn out & tired crew. I can easily say that all of the crew, ship’s company & air wing embarked, appreciated the videos,” wrote Chief Petty Officer Andrew Hodyl. (source)

And on the other hand, the president of the International Association of Crybabies had this to say:

“What we see here is, unfortunately, a 49-year-old Navy captain acting like a 19-year-old fraternity boy,” said Aubrey Sarvis, executive director of the Servicemembers Legal Defense Network, which has advocated for gay military members. “There is no place for that type of frat-house behavior.” (source)

Oh wait, I got that wrong… he’s the executive director of the Servicemembers Legal Defense Network. You can see how I could make that mistake.

In any event, he’s wrong.

There is a place for that type of frat-house behavior, and quite frankly, that place is the fucking navy. I expect my military members to be lewd. The military is the country’s largest frat-house. If women and homosexuals want to serve too, then I have nothing but support for them doing so. But, if you walk into a frat house, then you ought to understand that there will be dick jokes, there will be fag jokes, there will be cunt jokes. You can either laugh or you can just pick up your little hat and you go do your job. If you’re in the military and you can’t handle this kind of thing, then I shudder to think what you’d look like under real pressure.


Advice to Law Students looking for a job — don’t be a goddamned crybaby

December 22, 2010

Popehat has a bad-ass post on an “incident” at Syracuse University School of Law. The short version is this: Syracuse Law student Len Audaer published a blog satirizing his class, the administration, and public figures.

From Popehat’s story.

Somebody complained. Syracuse decided to appoint a “prosecutor” to investigate the blog and determine whether to bring formal charges against Audaer under the Syracuse discipline system. All of that — the fact that someone complained about satire, and that the school didn’t immediately reject the complaint — is appalling enough.

But Syracuse, and specially appointed prosecutor Syracuse law professor Gregory Germain, are angry about the criticism and are doubling down. As is often the case, the attempted cover-up is worse than the initial conduct.

Professor Germain has filed a motion with the Syracuse disciplinary body demanding a gag order against Audaer and his defense team. He wants Syracuse to issue an order forbidding Audaer from disclosing the contents of his own blog, or anything he gets from the university about the proceedings against him, to any third party unless the third parties agree in writing (1) not to disclose the names of any of the people identified in those blog posts or documents without their consent, and (2) to publish the entirety of documents, not just quotes from them, “in order to prevent misleading selective posting of information.”

In other words, Professor Germain thinks that Audaer should be prohibited from sending FIRE, or me, or the Chronicle of Higher Education, or CNN, an unredacted copy of this blog post without the written permission of Ellen DeGeneres. Professor Germain also thinks that Audaer should be prohibited from sending FIRE, or me, or anyone else one of his own blog posts, or any document from the proceedings against him, unless we agree to Professor Germain’s preferred method of writing about it. Professor Germain explicitly demands censorship of documents as a method of getting the type of media coverage of the proceedings that he wants. Of course, no respectable reporter — and no self-respecting blogger, or American — would agree to present materials only in the manner that a censor demanded. Moreover, given an internet in which it is trivially easy for Syracuse and its supporters to host and publish the raw documents themselves, the demand for written guarantees of full publication as a method of achieving “fair” coverage is transparently dishonest and/or stupid. The gag order is deliberately calculated to prevent Audaer from distributing his blog posts and the documentation of his persecution at all.

Remember what the “misconduct” is — a satirical blog.

This profession is full of uptight effete fucking pussies with sticks up their asses. You know why? Part of it is because the profession seems to attract them. But, the bigger part of it is that law schools cultivate uptight stick in the ass pussydom. Of course, just like a good TSA agent, or other low-rung pussy, Professor Germain whines that he is “just doing his job,” and he just wants the individuals who whined to be able to maintain their anonymity.

The students, faculty and staff who were targeted in the sucolitis blog did not consent to have their good names used in the blog, and do not wish to be the subject of attacks on the internet. One of the students has expressed to the Prosecutor a concern for her physical safety. Most wish to find jobs in the legal profession, and feel that bringing further public attention through the publication of their names could damage their
employment opportunities, and would cause further humiliation and embarrassment.

Again, why write my own words when Popehat knocks the shit out of it:

Leave aside, for the moment, the ignorant and authoritarian proposition that people have some sort of right not to have their names used on the internet, and not to be “attacked” on the internet. Focus on this instead: Professor German suggests that the people satirized in the blog fear that having that satire spread further as a result of their own complaints about it would be unfair, because potential employers might see it and their feelings might be further hurt.

I interview, and hire, people at a law firm. I cannot imagine a situation in which I would decline to hire someone because they had been the target of satire. That’s because I’m not a fucking idiot. Perhaps the subjects of Audaer’s blog aspire to be hired by fucking idiots. It sure looks like they are going to the right school, then.

Syracuse’s excuse for a disciplinary system apparently protects the anonymity of accusers, and supports efforts to prevent the publication of their identity. That’s common with systems that have, as their true aim, the uncritical acceptance of accusations and the swift arrival at a predetermined conclusion of guilt. See, if you allow the identity of an accuser to become public, then all sorts of inconvenient things happen. They might suffer consequences for making false accusations. People might read about the case and come out of the woodwork and say “Vance Victim couldn’t have been assaulted by the defendant on Saturday night; I saw him passed out over at Delta house that night,” or “Vance Victim is the same guy who threatened to accuse me of assault twice last year”, or “Vance Victim is a person with a reputation for being a liar and a cad.” In short, That’s why protection of accuser anonymity is repellent and inimical to modern systems of justice.

But Professor Germain does have the kernel of a point about privacy. It’s just not the point he thinks he has. It’s irrational to think that employers will be put off because a humor blog satirized you. However, it’s entirely rational to fear that, if employers find out that you ran to the administration to complain about being satirized, they might not want to hire you. I would happily hire people of every color, religion, and sexual preference. I would hire Republicans and Democrats and Independents and Greens. But I would never, in a million years, hire someone who complained to his or her school administration about being the subject of satire. People who run to the authorities to complain about being the subject of satire are weaklings, crybabies, losers, and nasty censorious authoritarians. I view them as likely to be of sub-optimal intelligence, insufficient fortitude, and poor morals. Those are not the qualities of a reliable employee or a good lawyer. They are not people I want to hire or be friends with. They are people I want to ridicule and shun.

Precisely.

Now I don’t hire very often. When I do, I have a very strict “no fucking pussies” screening process. And, if you get past me, you are sure as shit not getting past my partner, Jessica, who is less tolerant of pussies than I am.

I will tell you one thing for certain: I won’t even interview a Syracuse Law graduate who doesn’t publicly speak out against this travesty, and I would encourage all other lawyers and law firms to take the same stance.

To follow this case more:

Len Audaer’s site on the case. (here)

FIRE’s file on the case. (here)

And if you’re looking for an end-of-the-year charity, donate to FIRE here.


First Amendment Alert! Author arrested for writing a book

December 20, 2010

Please can't global warming melt the ice caps a little faster?

I’m the first to admit that Phillip Greaves is not the most sympathetic figure in America. Greaves wrote “The Pedophile’s Guide,” which was originally for sale on Amazon.com before the online retailer bowed to public pressure and pulled the book from its online shelves.

I don’t necessarily have a problem with that.

But, I have a big problem with today’s developments. The Orlando Sentinel reports that Polk County Sheriff Grady Judd had Mr. Greaves arrested in Pueblo, Colorado on obscenity charges.

Lets remember that Grady Judd’s jurisdiction is home to meth labs, cops who diddle children, and (given the inbred nature of its residents) a pretty high incest rate.

Despite the “real crime” in his jurisdiction, Judd instructed his detectives to
request an autographed copy of the book. Mr. Greaves obliged and Judd used that as his justification for having Greaves indicted on obscenity charges in his little caliphate of inbred-methistan.

Greaves told ABC News last month he wasn’t trying to promote pedophilia and was not himself a pedophile: “I’m not saying I want them around children, I’m saying if they’re there, that’s how I want them to [behave].” (source)

The implications of this arrest should outrage you far more than any child molestation incident. That is not to minimize child molestation, nor is it me just trying to be provocative. If a child gets molested, our republic stands. If petty little white-trash sheriffs like Grady Judd can find a book they don’t like and have the author hauled off to jail for it, the First Amendment means nothing. Judd’s offense is compounded by the fact that Mr. Greaves does not live in Florida and has no connection to bibleburg Polk County except that he mailed a book there, at the express request of a law enforcement officer who was clearly trying to manufacture jurisdiction.

Judd made his disdain for the constitution abundantly clear.

Judd said he was frustrated that Greaves’ book was protected under freedom of speech laws, even though it was created “specifically to teach people how to sexually molest and rape children.”

“There may be nothing that the other 49 states can do, but there is something that the state of Florida can do … to make sure we prosecute Philip Greaves for his manifesto,” Judd said. (source)

I hope that Mr. Greaves can afford a spirited defense to his extradition. If he winds up having to face these charges in Polk County, I can’t imagine his defense lawyers being able to find jurors with the intellect or the ethics to stand up for the First Amendment. Naturally, I would imagine that a conviction will be overturned on appeal – but only after he spends a significant amount of time in jail awaiting that happy day.

And in the meantime, your Constitution will sit in that jail cell with him.

Anyone who is inclined to lack sympathy for Mr. Greaves should set that aside. I don’t ask you to care about Mr. Greaves. I ask you to care about your constitution. I ask you to realize what his happening in this case.

This is the same pig who locked up Chris Wilson for publishing photos sent to him by U.S. troops in Iraq. This is the same backward jurisdiction where a guy who said “shit” because he was going to jail got 179 days for that transgression. This is where a guy who took photos of consenting adults, at their request, for their own personal use, was pursued relentlessly for obscenity charges. This jurisdiction saw a 15 year old arrested for farting. Another kid was arrested for taking photos of a traffic light. Before all that, when an adult entertainment performer called the cops because she was being stalked, she wound being charged with obscenity.

Just like censorship minded swine from Anthony Comstock to Katherine MacKinnon, Grady Judd is obsessed with the power that comes from wielding the censor’s cane.

And if we let him get away with it, we all lose something precious.

When, and if, I find out who is defending Mr. Greaves, I will post a follow up with information on how to donate to his legal defense fund.


Amazon Censoring Kindle Title List

December 18, 2010

by Charles Platt

After Amazon caved in and removed _The Pedophile’s Guide to Love and Pleasure_, other titles with erotic content are now being targeted. The currently uncertain situation is summarized here.


Carl Paladino – the man to watch in November 2010

September 14, 2010

By J. DeVoy

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

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

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

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

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

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

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

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

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


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

September 4, 2010

By Marc J. Randazza

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

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

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

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

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

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

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

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

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

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

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

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

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

Obenberger reports:

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

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

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

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