Can we prohibit drag shows for kids? No.

by Marc J. Randazza

Drag shows for kids.

I feel like Jake Blues when he says “Illinois Nazis” in the Blues Brothers. For “Pride Month,” a gay club in Dallas had an event called “Drag The Kids to Pride” in which drag queens performed sexualized dances for kids … not just teenagers, actual kids. This seems to be something widespread, nationwide.

If you bring your kids to one of these, you and I have no common ground when it comes to parenting.  Why would you would bring your kids to a sexualized performance of any kind?  That isn’t “pride.”  That is what the Conservative kids call “grooming.”  I’d feel the same way if you brought your kids to a strip club, even if the dancers remained fully clothed, but performed the same routines on stage. It’s not the sexual orientation of the shows that troubles me. This just isn’t something appropriate for kids.

Florida State Rep. Anthony Sabatini tweeted that he was considering legislation to make it a felony to bring your kid to such a show. I like Sabatini. I like where his heart is at here. But, I can’t agree with his idea.

Sabatini is not alone. Politicians across the country are capitalizing on this skirmish in the culture wars to propose or suggest state action to curb this trend.

Now for the hard part — so far, every limitation I have seen suggested will violate the First Amendment.  

The facts

The facts, as I understand them (and upon which my analysis is premised) are:  

1. Drag queens danced for parents and their kids. 

2. Kids got up on stage and danced, too. 

3. The dances were “sexualized” in nature.  

4. Kids were stuffing dollar bills into garter belts, and audience members were throwing dollar bills to the kids who danced.  

If I have any facts wrong, then my analysis might change.  

An important note here — I have heard no reports that any of these involved actual nudity nor actual sexually explicit conduct.  “Sexualized behavior” is different from sexually explicit conduct.  The government can regulate nude performances and sexually explicit conduct.  The government can not regulate “sexualized” expression that is merely in tremendously bad taste.     

Another thing to note: It seems irrelevant that these are “drag queens.” If the kids can’t see the performer’s genitals, I think it makes no difference what is under their g-string, or if their tits are real, enhanced, or just stuffed bras.

Fully clothed. Nevertheless, I think if you would put your kid in that seat, you’re fucked in the head.

Analysis – Definitional Problems 

The first problem I would have with trying to ban drag shows for kids is even defining “drag show” in a legally clear manner.  Set aside the constitutionality of the ban until later in this post.  Just try to define this.  

If you asked me to come up with a regulation that simply defined the problem and prohibited it — even in the absence of the First Amendment — I couldn’t do it.  Could you?  

Sure, we all “know it when we see it.”  I know exactly what you mean when you say “those drag shows with kids.”  The sight of a performer writhing on the ground with dollar bills being thrown into their crotch, twerking in a kid’s face, yeah … I can picture it. But can I actually define it in a way that wouldn’t eat up a lot of other expression?  Can we define it so that it wouldn’t be a tool in the hands of someone who would censor dance / performances that we like?  

How could you come up with a regulation that wouldn’t ban say, dressing up to go watch the Rocky Horror Picture Show?  Would the regulation sweep up even Halloween costumes?  How could you write it so that it did not?  Would the difference be whether there was dancing or not?  If so, would you be able to write a regulation tailored sufficiently that it only swept up the dance moves you’re worried about?  Would this just be an “anti-twerking law?”    Would it be limited to men dressed as women?  What about women dressed as men?  Or what about just women in bikinis dancing?  

Do you trust the government to make this decision? I do not.

In Cohen v. California, Justice Harlan wrote “we think it is largely because governmental officials cannot make principled distinctions in this area that the Constitution leaves matters of taste and style so largely to the individual.” 403 U.S. 15, 25 (1970).  

I do not trust the government to make this decision.  I trust the government even less if a government I trust today gets a tool of censorship in its hands, and then the regime changes.  Be careful. If you release poisonous snakes into your neighbor’s yard, they’re eventually going to slither into your yard.

Analysis – First Amendment

Dancing is First Amendment protected expression.  Even nude dancing is.  Judge Posner wrote that to say the contrary is “indefensible and a threat to artistic freedom.”  See Miller v. City of South Bend, 904 F.2d 1081, 1090 (7th Cir. 1990) (concurring).  Most certainly, fully clothed (even if scantily clad) drag shows are dance protected.    

I think a reasonable person could call these performances “indecent.”  I call them that, but that’s just like my opinion, man.  Whether it is indecent or not, “Sexual expression which is indecent but not obscene is protected by the First Amendment.” Sable Communications v. FCC, 492 U.S. 115 (1989). See also Smith v. California, 361 U.S. 147, 150 (1959) (bookstores selling indecent materials); Southeastern Promotions, Ltd. v. Conrad, 420 U.S. 546 (1975) (Indecent, but non obscene theater performances); Young v. Mini Theatres, Inc., 427 U.S. 50 (1976) (indecent motion pictures in a theater); Schad v. Mount Ephraim, 452 U.S. 61, 68 L. Ed. 2d 671, 101 S. Ct. 2176 (1981) (nude dancing).

But What About The Children?

The analysis does change a bit because kids are involved, but not enough to move the needle.  

The Supreme Court has held that “obscene” material is not protected by the First Amendment.  To be obscene, material must meet the Miller Test.  That test says we look at material in three parts:

1. Whether the average person, applying contemporary community standards, would find that the work taken as a whole, appeals to the prurient interest; 

2.  whether the work depicts or describes, in a patently offensive way, sexual conduct specifically defined by the applicable state law; 

3. whether the work, taken as a whole, lacks serious literary, artistic, political, or scientific value.

I can not imagine a principled judge not throwing out a regulation or a prosecution over a fully-clothed drag show.  Is merely twerking “patently offensive?”  Is it different because it is a man dressed as a woman?  It shouldn’t be.  To say these performances lack serious artistic or political value is to devalue those terms to being nearly worthless.  Most certainly they have “political value.”  That “political value” is the parents virtue signaling at how liberal they are.  It is absolutely an act of political speech and political expression.  Not expression I may approve of, but no parent brings their kid to this because they merely think the kid will have fun.  If that were the case, they’d park them in front of a guy with one of those great big bubble makers and throw ten bucks at him to entertain the kids.  These shows, and participating in them, is an act of political expression.  It is about as tasteful as a Pol Pot fan club meeting, but no honest person could say that these lack artistic or political value.  

When it comes to kids though, the standard can shift a little bit.  In Ginsberg v. New York, 390 U.S. 629 (1968) the Supreme Court upheld a variable standard when it comes to obscenity and kids.  In that case, the court upheld a New York law that prohibited providing materials containing nudity or sexual content to minors if there was monetary consideration. 

Aha! Have we found a way to prohibit this thing we dislike?  

Probably not.  

Ginsberg v. New York establishes that we can have a sliding scale of what is obscene.  Therefore, something that might not be “obscene” when sold to an adult can become obscene when sold to a minor.  (Ginsberg was decided before Miller, so I question even whether Ginsberg is still good law, but for the sake of this post, presume it is).  But, even in Ginsberg, the court recognized “the prohibition against sales to minors does not bar parents who so desire from purchasing the magazines for their children.”  

The rationale underlying Ginsberg is that parents get to raise their kids as they see fit.  “[C]onstitutional interpretation has consistently recognized that the parents’ claim to authority in their own household to direct the rearing of their children is basic in the structure of our society.”  Ginsberg also cited to Prince v. Massachusetts.  “It is cardinal with us that the custody, care and nurture of the child reside first in the parents, whose primary function and freedom include preparation for obligations the state can neither supply nor hinder.”  321 U.S. 158, 166 (1944).  

The philosophy here is that parents get to educate their kids on sexual issues as they see fit (short of molesting them, of course).  The logic reversed the polarity here — in Ginsberg, the issue was that no bookstore should be making the decision as to whether a 16 year old kid can have a pornographic magazine — but a parent could still make that decision for their kid.  You want your kid to have a copy of Hustler?  Have at it.  But, the local convenience store can be prohibited from selling it directly to him.  

Could Ginsberg be used to create another stratification in obscenity law?  

Maybe, but I think such a decision could be fraught with constitutional danger.  Let’s say a

Not Sexy Enough For You?

court said that since Ginsberg lets us create an “obscene as to minors” standard, we can create more layers in that standard.  Could we have an “obscene as to toddlers” standard?  At what age would we draw the line?  How would we draw it in such a way that it prohibited what we wanted to prohibit, yet left other speech unscathed?  Would it be “harmful to minors” to let kids watch Monty Python?  Why not?  Because when the Monty Python guys are dressed as women, they’re not sexy enough?   Is the standard “I’d hit that if it had a vagina?”  If so, aren’t we using the “prurient interest” as to adults in order to decide what kids can see?  

Conclusion

I have no issue with drag queens in general.  I think it is great that they exist.  I will have words with anyone who wants to bully someone else because they are an adult choosing to be a drag queen, or transsexual, or attend a drag queen show, or whatever.  Your life, live it the way you like.  It doesn’t hurt me, nor bother me, in the least.  (In fact, my firm proudly handles transsexual discrimination cases that even the big trans-advocacy organizations turn down).  I have no problem with “Drag Queen Story Hour” where drag queens simply show up and read books to kids.  (Although this one should be criminally charged).

How about now? Sexy enough to ban?

But this is not that.  Rousseau wrote “Childhood has its own ways of seeing, of thinking, of feeling; nothing is more absurd than wanting to replace them with our own.”

This absurdity is at a level that I think nobody could ever have predicted.  We have elementary school teachers seeking validation for their life choices and sexuality from their students.  We have woke-scolds trying to reinvent our language, and other peoples’ languages as well.   And now in what seems like an outright declaration of war on normality, sick people bringing their kids to watch and participate in sexualized drag shows.  

But that’s what liberty is.  You get to raise your kids the way you want, with the values you want.  

Restrictions on that are limited, as they should be.  Do I want people to bring their kids to these shows?  I would rather they not.  If my kid’s mom brought them to one, we’d be in custody court before she got home.  (Not that she would, but just sayin’).  If my kids had friends whose mom (it is always the moms) brought them to one, I’d seriously consider whether my kid should even associate with that kid in any way.  I wouldn’t have any problem with completely socially ostracizing any drag queen who performs like this for kids, nor with doing the same for anyone who runs a business that tolerates it.  

But I do not want the government involved.  The government that has the power to tell you that you can’t bring your kids to a non-nude, non-obscene, drag show can also tell you that you can’t bring your kid to see a performance that you like.  In fact, it isn’t a far slide down the slope to limitations on what you can teach your kids in church.  

Liberty isn’t easy.  It isn’t supposed to be easy. It isn’t supposed to be comfortable. Liberty means your fellow citizens get to enjoy performances and child-rearing ideas that make your skin crawl, sometimes. Liberty is supposed to be standing up for expression that you would convince every person to reject – while protecting their right to make that choice for themselves.

I find these shows to be troubling.   But, “if there is a bedrock principle underlying 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 (1989).

Yeah, Illinois Nazis, Texas Drag Queens, pornographers, Satanists, and even people who advocate putting pineapple on pizza have First Amendment rights. And even if you hate their use of those rights, to diminish theirs is to diminish your own.

The First Amendment Protects Angeli Gomez’ Right to Speak About Her Experience

The Mama Bear
Heroine of Uvalde

by Marc J. Randazza

Angeli Gomez probably would find the title “the heroine of Uvalde” to be embarrassing.  Therefore, if she reads this, I must apologize for calling her that.  But, Ms. Gomez demonstrated character and conduct that makes “heroine” a proper term for her.  Her statement “I’m going in there” should be enshrined on a monument somewhere, with nearly as much honor as the words “lets roll.” 

The Uvalde police?  Just the opposite.  Everyone knows their ineptitude and cowardice — waiting an hour while a loser shot kids inside the school.  Ms. Gomez, frustrated with government flunkies, tried to go in and save her kids.  Apparently a U.S. Marshal put her in handcuffs for “intervening in an active investigation.” (source)  “Right away, as I parked, a US Marshal started coming toward my car, saying that I wasn’t allowed to be parked there,” she recalled. “And he said, Well, we’re gonna have to arrest you because you’re being very uncooperative.” (source)  (second source) 

Local cops freed her, and she ran off, over the fence, into the school, grabbed her two kids and ran out.  

Again, the words “Uvalde Police Department” should be, from this day forward, synonymous with “incompetence” and “cowardice” and “ineptitude.”  That police department is 40% of the town’s budget.  They have a SWAT team, and yet a middle aged field-worker-mom showed more competence and heroism than this entire paramilitary over-funded group of preening tax-fattened losers?  

I am not a “Defund the Police” Guy, but this is definitely a waste of money.

As if the Uvalde Police couldn’t be any worse, they decided to try and shut her up, the First Amendment be damned.   

Download

They then threatened Ms. Gomez for talking to the press about what cowardly clowns the Uvalde P.D. was, is, and shall forever be known.  She is on probation (I do not know why) for an event 10 years ago.  They’ve threatened her with a probation violation for “obstruction of justice” because she won’t stay silent. (source at 4:45) 

The First Amendment protects your right to speak your mind about how the government acts — not matter what, but especially if you’re a first-hand witness to (and participant in) a matter of public concern.  

The government does not get to threaten criminal prosecution for discussing a matter if public concern.  Even stolen top secret documents are lawful to publish. See New York Times Co. v. United States, 403 U.S. 713 (1971); Branzburg v. Hayes, 408 U.S. 665, 727 (1972) (“the right to publish is central to the First Amendment and basic to the existence of constitutional democracy.”). If one can publish The Pentagon Papers, Ms. Gomez can talk about her experience.  

This First Amendment violation was so grossly out of bounds, she should sue the living hell out of whichever agency threatened her.  This is a clear example of retaliation for the exercise of First Amendment protected conduct.  

To show First Amendment retaliation, a plaintiff must show: (1) that “he or she engaged in constitutionally protected conduct”; (2) that “he or she was subjected to an adverse action by the defendant”; and (3) that “the protected conduct was a substantial or motivating factor in the adverse action.” David B. v. Esposito, 675 F.3d 26, 43 (1st Cir. 2012). An adverse action is one that “viewed objectively … would have a chilling effect on [the plaintiff’s] exercise of First Amendment rights,” Barton v. Clancy, 632 F.3d 9, 29 & n.19 (1st Cir. 2011), or that “would deter a reasonably hardy person from exercising his or her constitutional rights.” D.B., 675 F.3d at 43 n.11.

“[T]he First Amendment prohibits government officials from subjecting an individual to retaliatory actions … for speaking out.” Hartman v. Moore, 547 U.S. 250, 256 (2006); see also Perry v. Sindermann, 408 U.S. 593, 597 (1972). The First Amendment retaliation doctrine addresses “constitutional violations may arise from the deterrent, or ‘chilling,’ effect of governmental efforts that fall short of a direct prohibition against the exercise of First Amendment rights.” Bd. of Cty. Comm’rs, Wabaunsee Cty., Kan. v. Umbehr, 518 U.S. 668, 674 (1996). 

Ms. Gomez did, indeed stop talking to the press for a period of time — fearing the threats that law enforcement would consider this to be a probation violation.  Reportedly, a judge told her that her probation would actually be shortened, as a reward for her bravery.  (source)  I am not sure how that might have happened, and there are moving parts in this story that are unclear.  But still, I can think of few clearer First Amendment violations than this.

The deprivation of First Amendment rights, even for a short period of time, is intolerable — especially when the government is threatening criminal prosecution for the exercise of those rights.  And this is especially so when someone is a participant in a matter of public concern, discussing what she saw with her own eyes and ears.

Insert the sound of a screeching eagle, here.

Michigan Bans Foreign Language Books in Prison – Constitutional? I Think Not.

by Marc J. Randazza

The Michigan Department of Corrections is banning Spanish or Swahili dictionaries.  Michigan Dep’t of Corrections spokesman, Chris Gautz, claims that it is a matter of public safety.  

“If certain prisoners all decided to learn a very obscure language, they would be able to then speak freely in front of staff and others about introducing contraband or assaulting staff or assaulting another prisoner,” he is quoted as saying.  “When it’s in a language that we don’t have the ability to read ourselves and understand exactly what it is that we’re looking for, we’re not able to allow it in.” (source).

Is this Constitutional?  I think not. The First Amendment protects even a prisoner’s right to read books.

Not to put too dull of an edge on it, but prisons can basically do what they please to inmates – but they still maintain some First Amendment rights. In First Amendment cases, there are typically three levels of scrutiny — strict scrutiny, which is required in clear free speech cases where there is a content-based restriction, intermediate scrutiny which applies usually to commercial speech, non public forum speech and many content-neutral restrictions, and rational basis review, which applies to regulations that have nothing to do with the content. (This is really dumbing it down, but I don’t want to lose your attention span here).

Courts review a prison’s limitation on inmates Constitutional rights under the rule laid down in Turner v. Safley, 42 U.S. 78 (1987) and as modified by Thornburgh v. Abbott, 490 U.S. 401 (1989). The regulation is valid if it is reasonably related to legitimate penological interests. The Court pointed to four factors to determine if the regulation is “reasonable.”

1. There must be a valid, rational connection between the prison regulation and the legitimate governmental interest put forward to justify it. It must be legitimate and neutral.
2. Whether there are alternative means of exercising the right that remain open to prison inmates.
3. The impact accommodation of the asserted constitutional right will have on guards and other inmates, and on the allocation of prison resources generally.
4. The absence of ready alternatives is evidence of the reasonableness of a prison regulation. By the same token, the existence of obvious, easy alternatives may be evidence that the regulation is not reasonable, but is an ‘exaggerated response’ to prison concerns.

Looking at this standard, I am confident this regulation could be struck down as violating prisoners’ First Amendment rights.

Prong one – Is the Governmental Objective legitimate, neutral, and rational?

Is the government objective legitimate? The stated objective here is to prevent prisoners conspiring to break the rules, hurt guards, and engage in other forms of mischief. While this sounds like bullshit, I think most courts would take the prison system at its word that this was its objective.

Is it neutral? Here I am more skeptical. Would they ban “A Clockwork Orange” for its use of Nadsat? Or 1984 for use of Newspeak? Are they banning the use of AAVE or other non-standard forms of English, which could be just as unintelligible to a prison guard as Spanish. (For example, Jamaican Creole). Also, while the story only discusses Spanish and Swahili, I question whether they’ve also banned French or Latin or Italian? If so, that might tend to support the government’s claim of neutrality. But, it seems to me that the neutrality here is questionable.

Is the ban rationally related to the prison’s stated objective? I think not, but “rational” is open to interpretation, and if you have a judge who either doesn’t give a shit about prisoners or the First Amendment, I could see a judge calling it “rationally related.” On the other hand, it seems that given the fact that Spanish is the second most spoken language in the world, banning books for learning Spanish doesn’t seem very “rational” when part of the rationale includes a fear of prisoners learning an “obscure” language. Even Swahili is hardly “obscure.” Query whether say Papiamento (a language I am studying right now) or Romansch (a language I can understand a lot of, because I speak Italian) would be a different story. Further, let’s query whether it is rational to keep a Spanish-English dictionary from a prisoner who is trying to learn English rather than the other way around.

Further, I would question whether it is rational to ban books in order to try to prevent prisoners from learning a language as opposed to banning them from using the language in certain ways.

There are a number of cases that do deal with the use of foreign languages in prison — and they recognize that a prison has a legitimate penological interest that could sustain the banning of the use of foreign languages in prison.

In Ortiz v. Fort Dodge Corr. Facility, 368 F.3d 1024 (8th Cir. 2004) the 8th Circuit upheld a prison’s limitation on written communication in a foreign language, if the prisoner could communicate in any other language. Even though Ortiz preferred to write to his sister in Spanish, because that was her first language, the prison had a right to screen incoming and outgoing mail, and doing so in a language other than English was an undue burden on the prison.

In Thongvanh v. Thalacker, 17 F.3d 256 (8th Cir. 1994) however, a Laotian prisoner was denied the right to communicate with non-inmates in Lao, even though Spanish and German prisoners had both the opportunity to communicate in their native languages and there was a translation service offered to them to translate their letters into English. A jury found that failing to offer similar accommodations to a Lao speaker was a First Amendment violation and the verdict was upheld on appeal.

Kikimura v. Turner, 28 F.3d 592 (7th Cir. 1994) struck down a prison policy of summarily rejecting foreign language publications without an attempt to translate or screen the materials. And in Boriboune v. Litscher, 91 F. App’x 498 (7th Cir. 2003) the court distinguished Kikumura and upheld a prison requirement that a prisoner first obtain approval before communicating on the telephone in a foreign language).

However, I have found no cases that support the proposition that it is permissible to stop a prisoner from merely learning a language.

To help in the analysis, there is another context where First Amendment rights are severely curtailed, but not extinct — schools. Nebraska once had a state law that prohibited teaching of languages other than English to children who had not passed the eighth grade. The Supreme Court held that the statute was arbitrary and without reasonable relation to any legitimate State goal. Meyer v. Nebraska, 262 U.S. 390 (1923). And in another case, a law that prohibited keeping business records in other than specified languages violated Chinese businessmen’s equal protection rights. Yu Cong Eng v. Trinidad, 271 U.S. 500 (1926). Further, at least one case cites the Meyer case for the proposition that the Due Process Clause protects the right “to acquire useful knowledge.” Epperson v. Ark., 393 U.S. 97, 105 (1968) citing Meyer v. Nebraska.

Accordingly, I would find that this regulation fails this prong.

Prong two — Are there alternative means for the prisoners to exercise their rights?

I think the government has even more of a hard time here. There are still First Amendment rights in prison, despite their limitations. There is a right to receive information — in the form of foreign language books. There is at least some right to learn a foreign language, and to acquire knowledge. See Epperson v. Arkansas, supra.

I suppose the prison could claim that if you want to learn Spanish, you can learn it from your cellmate, if he speaks Spanish? I really can’t see any alternative means for a prisoner to either learn Swahili, Hebrew, etc. (And the thought of this impacting religious study creates an even greater problem — how can you practice Judaism in prison without learning Hebrew?) There really does not seem to be any alternative means other than bringing in tutors – but the issue here is that the prison system seems to simply wish to prohibit prisoners from using or knowing languages other than English – it isn’t the books themselves, but the spread of knowledge, and then the fear that this knowledge will be used nefariously.

But ultimately, it does not seem that there are any alternate means for prisoners to learn foreign languages. I could see a reasonable alternative for the inverse — if a Spanish speaker wishes to learn English, then the prison could offer English classes. But, without books to learn it, I can not rationally see a way that prisoners could learn other languages, other than the prison offering courses in them. But then that cuts against the stated purpose — the Bureau of Prisons does not seem to be as concerned about prisoners knowing foreign languages, but rather how they would be used. As discussed below, limitations on using what you learn from a foreign language text might be limited, but I think simply depriving prisoners of the ability to learn them would be a different analysis.

Prong 3 – The impact on guards and other inmates

As discussed in the cases above, prisons can regulate the use of foreign languages for some pretty

Navajo Code Talkers

legitimate reasons. As discussed above, the prison can (and probably should) screen letters and phone calls in and out of the prison. We do not want gangsters running their enterprise from inside the prison by simply using another language. Use of “obscure” languages has a proven track record of being a great way to keep a code unbroken. See, e.g., Navajo Code Talkers in World War II.

However, I can’t see that there is an impact on guards and other inmates inherent in prisoners simply learning another language while in prison.

Prong 4 – Alternatives

It does seem that the prisons could control the issue they are concerned about by requiring that prisoners only communicate in English. “This is America, speak English only” would be constitutionally intolerable in other circumstances, but in the prison context, the BOP’s regulation could make sense. Limiting foreign language use as a means of controlling the prison population and ensuring that prison officials can both govern inside the prison as well as governing how prisoners communicate with the outside world is legitimate and would be upheld. Therefore, the existence of ready and obvious alternatives seems to cut against the reasonableness of the regulation.

Other considerations

In the context of jury selection, foreign language use has been held to be a proxy for racial discrimination. Further, I think there are significant equal protection and First Amendment problems here, over and above the issue of whether prisoners have an inherent right to learn a foreign language. As I alluded to above, how could a prisoner either convert to, or practice Judaism while being prohibited from learning Hebrew? I am no expert on Third Wave American (or “Native” if you’re into that term) religious practices, but I presume that there are spirits who would rather be spoken to in Navajo rather than English. When it comes to endangered languages, I have an even greater concern — some Third Wave languages are nearing extinction, as is Texas German or even the aforementioned Romansch. If some prisoner wants to spend their time learning such an obscure language, they could wind up becoming a very valuable resource for the preservation of that language.

Ultimately, this regulation seems steeped in over-reaction, prejudice, and irrationality. I’d find that it should be struck down as violating the prisoners’ First Amendment rights, and let the prison deal with its concerns by limiting how foreign languages can be used, not simply depriving prisoners of the opportunity to learn them at all.

Buzzfeed News profiles Marc Randazza and explores his high-profile, controversial cases

Marc Randazza, the lawyer working to protect First Amendment rights of people spewing socially undesirable speech, recently opened up to Buzzfeed News about his devotion to the First Amendment and how representing neo-Nazis, trolls, and Satanists helps him uphold what he believes is one of the most important ideals this country was founded upon.

The First Amendment guarantees United States citizens a constitutional right to freedom of speech. Government cannot infringe upon this right, although certain types of speech such as incitement, obscenity, and defamation do receive less protection. Protection can be based on the place in which speech occurs. For instance, speech that takes place on the campus of a public school has high First Amendment protection but speech in a private workplace receives little protection. Between court rulings and interpretation of the Constitution, protections of free speech have become pretty well defined over the last several decades. However, there’s one grey area that is polarizing First Amendment advocates today – speech on the Internet.

That’s where Randazza focuses much of his effort.

Section 230 of the Communications Decency Act (CDA) protects technology platforms from liability based on their users’ content, but despite this protection, tech giants are restricting their users’ speech. Facebook, Twitter, and YouTube claim they can take down any content they consider inappropriate or objectionable. Moreover, these platforms claim they have the right to ban undesirable members. Randazza believes that the Internet is a de facto public space, meaning it is privately owned yet publicly accessible, and therefore, online platforms must be more tolerant of such speech, especially given that they are afforded immunity through the CDA.

One group that claims they are a target of such discrimination are white nationalists. While their rhetoric is seemingly experiencing a wave of popularity, it’s also publicly despised and tech giants are being accused of suppressing it. Scratch the surface of Jared Taylor’s lawsuit against Twitter or Alex Jones’ lawsuit against PayPal and you’ll understand why Randazza thinks white nationalists are one of today’s most vulnerable groups in regard to the suppression of free speech.

Randazza has received heavy criticism from his peers not so much for his position, but more so for representing extremists like Taylor and Jones. But, he believes that protecting First Amendment rights is a matter of principle, not message.

“Sometimes we have to take people on who we find unsavory, but that’s what a commitment to the First Amendment means,” said Randazza.

Read the full article about Marc Randazza on Buzzfeed News.

Note for the Legal Satyricon Blog: Marc Randazza on Alex Jones’s defamation case

Marc Randazza is protecting the rights of Alex Jones, a host on InfoWars and a journalist.

Alex Jones faces several defamation lawsuits in different states filed by the families of victims of the Sandy Hook Elementary School massacre. Alex Jones at one point questioned the official narrative of the story, but now believes the shooting happened.

“Even though overwhelming – and indisputable – evidence exists showing exactly what happened at Sandy Hook Elementary School on December 14, 2012, certain individuals have persistently perpetuated a monstrous, unspeakable lie: That the Sandy Hook shooting was staged, and that the families who lost loved ones that day are actors who faked their relatives’ deaths,” the suit filed by lawyers from the Koskoff Koskoff & Bieder law firm claims, reports Connecticut Law Tribune.

Marc Randazza is defending Alex Jones in Connecticut.

“If you are a First Amendment lawyer and you hesitate in defending someone because of allegations of what they said, then you are not a First Amendment lawyer,” Randazza said.

Recently, Marc Randazza appeared as a guest on Alex Jones’s show InfoWars to discuss First Amendment issues. Randazza and Jones discussed a plethora of topics, including defamation lawsuits, free speech rights violations, and the growing impact of censorship by social media companies.

“You see this with people on the right being systematically ‘no platformed’, not just from media sites, but from YouTube, from Facebook, from Twitter and now from PayPal and Stripe. If any company decides that it doesn’t like the kind of thing you have to say, then you are off.”

Now, Twitter, YouTube, Facebook, Apple, LinkedIn, Spotify, Stitcher, and Pinterest have banned Alex Jones and InfoWars. How does this ban affect freedom of speech and the First Amendment rights of US citizens? Marc Randazza shared his opinions on the ban here:
https://www.mediamatters.org/research/2018/08/06/empire-strikes-back-right-wing-media-defend-alex-jones-after-infowars-banned-several-major-platforms/220912

Marc Randazza at Alex Jones Show: The most intriguing moments of the latest interviews

Over the past few weeks, Marc Randazza has been appearing on Info Wars. You can take a look at the video interviews on the Randazza Legal Group YouTube channel.

Marc Randazza discussed various issues related to the First Amendment and freedom of speech and expression.

In the interview (titled) Marc Randazza at Infowars: freedom of speech, well-known First Amendment cases, and censorship, Marc discussed defamation and free speech in the United States. According to Marc Randazza, there will always be people trying to use censorship to influence the marketplace of ideas. But the First Amendment allows all kind of speech, so Americans should let the marketplace of ideas flourish.

5:48 – 6:05
“… what troubles me is anytime I see anybody coming after that, I have a problem with it. The First Amendment is there for Nazis, for Clansmen, for Westboro Baptist Church, for anybody. It’s there for the speech you hate.”

15:15 – 15:41
“I don’t really care whose free speech it is that is being trampled. I will stand up to protect them, whether it’s Randa Jarrar who I find to be one of the most reprehensible human beings in America, whether it’s the Nazi party or the KKK, or whether it’s the communist party. Every one of them has an equal right to be there and the intellectual texture of America, the strength of America, the idea of America erodes and begins to grow a cancer if we don’t protect that.”

In this interview [titled], Marc Randazza commenting on the First Amendment rights protection at the Alex Jones Show Marc Randazza shares his point of view on several well-known free speech lawsuits and helps Alex Jones to figure out his own charges.

2:32 – 2:44
“What you can do is continue to educated people on what the First Amendment is because I’ve just been delighted over the past few years at how much more awareness there is now about First Amendment rights…”

Also, Mr. Randazza commented on a case involving a Scottish comedian named Mark Meechan, who taught his girlfriend’s dog to raise his paw every time he said “Sieg Heil”. Now Meechan is facing up to a year in prison for hate speech. Randazza also discussed this case on his CNN column.

According to Marc, “[censorship] looks much more like the purview of the left, at least in the West.“

14:58 – 15:17
“You see this with people on the right being systematically ‘no platformed’, not just from media sites, but from YouTube, from Facebook, from Twitter, and now from PayPal and Stripe. If any company decides that it doesn’t like the kind of thing you have to say, then you are off.”

Watch the full interviews to understand the complete picture and catch up with the latest First Amendment insights from Marc Randazza.

Marc Randazza on the Nazi-salute dog video and hate speech in Europe and the US

In his recent CNN article, Marc Randazza shared his opinion regarding a Scottish comedian, who made a horrible joke that could now have criminal consequences.

A Scottish comedian named Mark Meechan, of Coatbridge, Lanarkshire taught a pug named Buddha to raise his paw any time he said “Sieg Heil.” Meechan posted a video of the pug on YouTube. Meechan said that he made the video and taught the dog to give Nazi salutes as a joke on his girlfriend.

In the video Meechan said that his girlfriend annoyed him by always saying how cute her pug is and he decided to get her back by teaching the dog something that’s not cute.

But authorities arrested Mark Meechan and he is now facing up to 6 months in prison for a hate crime.

The court found him guilty under the Section 127 of the UK Communications Act which prohibits “grossly offensive, indecent, obscene, or menacing” electronic communications. Mark shared his video on social media and YouTube which was offensive because of it being “anti-Semitic and racist in nature”.

Marc Randazza imagines how this case would proceed if it had happened on the other side of Atlantic, and notes that even though the United States has the First Amendment, Canada has adopted hate crime laws. For example, when Ezra Levant republished “Mohammed cartoons” in Canada, he faced a complaint before the Alberta Human Rights Commission.

In the US, Marc Randazza believes that the First Amendment protects such freedom of expression, but he fears that more hate speech prosecutions, like the ones in Europe, could be in our nation’s future. “With our growing tolerance for intolerance, I fear, UK-style prosecutions may be on the horizon for us. Even without them, the forces of censorship may simply make them unnecessary by suppressing all speech that someone might whine about.”

Marc Randazza says that if Mark Meechan were a US college student, he probably would be disciplined for such a speech. Marc Randazza recalls an instance when he was accused of hate speech at the University of Massachusetts for putting up a poster of the punk band the Dead Kennedys. The poster featured a swastika covered by a red circle and a line through it, but even though the swastika was crossed out some people were offended.

Today social networks are beginning to take down  “offensive speech” if someone thinks that it is inappropriate. However, different people may determine that the speech is humorous but not offensive.

Even though Marc Randazza agrees that the Nazi salute dog is offensive, Marc Randazza thinks that free speech should be protected, including speech that may be deemed “offensive”.

Randazza: The Legal Battle Over Andrew Anglin Continues

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.”

Marc Randazza’s most recent CNN column analyzes U.C. Berkeley’s decision to silence Ann Coulter

See Dear Berkeley: Even Ann Coulter deserves free speech.

There has been a wave of violent outbursts against conservative speakers during the 2016 election season, including violent protestors at Berkeley driving Milo Yiannopolous off campus a few months ago.

Berkley’s reaction? When the Berkeley College Republicans invited Coulter to speak, Berkeley canceled it, citing the recent violent outbursts as the reason. Marc Randazza explains that Ann Coulter suggested disciplining the students that engaged in violence, but Berkeley decided instead to reschedule the speech on a day when no students were on campus.

This is censorship.

Marc Randazza says that some people on the left feel, “emboldened by a view that ‘we’ are right and the Right (is) wrong,” and goes on to scold the left: “Shame on the Left for tacitly condoning this culture of violent suppression of views it disagrees with.”

Marc Randazza reminds us that we don’t need a First Amendment for speech that neither challenges, nor offends, because sometimes that very challenging and offensive speech fosters growth.

Marc Randazza points out that the left used to be beacons for free speech, and credits a few well-known liberals for defending Coulter’s right to speak in the column:

“Are we living in an alternate reality, one in which Bill Maher and Bernie Sanders are sticking up for Ann Coulter?

What could have caused this rip in the space-time continuum?

The so-called birthplace of the free speech movement, the University of California at Berkeley, has once again engaged in liberal censorship, this time of Ann Coulter, using the fear of violence as cover to suppress a voice it did not like.”

Read the rest here.