Turkey’s President Recep Tayyip Erdoğan, who, I’m legally required to state¹, is not now and never has been employed as a Gollum impersonator, is doing a great job supporting the argument that the amount of power a leader has at his disposal is inversely related to his ability to tolerate “insults” or dissent.

At a September press conference, Erdoğan’s spokesperson Ibrahim Kalin claimed “there is a vibrant environment of debate in Turkey,” and said that it’s “never possible to consider insulting the presidential office within freedom of expression.” Although that statement is completely laughable, it was not a joke—Turkey does seriously crack down on “insults” to President Erdoğan, who, I repeat, is not one of the River-folk and has at no point been accused of murdering the hobbit Déagol.

The most recent example of Erdoğan’s tendency to overreact to insults is… precious.² Today's Zaman reports that a Turkish court has “demanded an expert examination to investigate Gollum's character to decide whether a comparison with him is an insult,” after Dr. Bilgin Ciftci, who has now been fired from Public Health Institution of Turkey, shared this meme:

Ciftci has already attended four hearings over this picture, and will have to suffer through another on February 12 because the judge admitted he hadn’t seen the films, and wasn’t sure if the comparison to The Lord of the Rings character Gollum constitutes an insult. To help him find answers to this very important question³, he put together “an expert panel, which will reportedly include two academics, two behavioural experts and an expert on cinema and television productions.” So in addition to deciding whether or not Ciftci will spend time in prison, potentially two years, a Turkish court will be responsible for taking a position on Gollum’s moral worth. Talk about government overreach.

If they were to ask for my opinion, which I note, they’re not⁴, I would tell them that, considering the fact that Erdoğan, unlike Gollum, doesn't have a magic ring’s influence as justification for the way he acts, Erdoğan should be grateful for the comparison. Gollum is a complex, tormented character whose struggle against himself elicits the reader’s pity, rather than hatred. Erdoğan is a president who throws tantrums because people tease him online. I would also tell them that a major difference between the two is that Gollum, although obsessed with and in love with the ring and the power it offered, hated himself for it. Although he has good cause to do so, Erdoğan, from what I can tell, doesn’t seem to share Gollum’s sense of self-loathing.
In short, it’s not Erdoğan who is insulted by this comparison—it’s Gollum.

You don’t have to look hard to find more stories like this. A hearing will be held this month to determine the guilt of two children, ages 12 and 13, who were charged with insulting the president after they were caught tearing down posters of Erdoğan in October. Today’s Zaman reports that they could face up to four years in a juvenile facility. That same month, Turkish police arrested a 14 year old boy for allegedly insulting Erdoğan on Facebook. He spent a night in jail and was released the next day. Also in October, police detained Today’s Zaman editor-in-chief Bulent Kenes under this “previously seldom-used law,” claiming his tweets constituted insults to Erdoğan, who, again, is not a small, slimy creature who bit off Frodo Baggins’ finger in a final attempt to regain ownership of the One Ring. Kenes pushed back, arguing that he was simply exercising his rights. That’s just a few reports from one month. These are not isolated incidents.

And it’s not just “insults” that can get you in trouble. Two columnists accused of “openly denigrating the religious values of a part of the population” and “openly inciting groups of the population to breed enmity and hatred towards one another" for reprinting Charlie Hebdo’s post-attack cover of Muhammad will face a hearing next month (they failed to show up at the last hearing) and could face up to 4.5 years in prison if found guilty. In June, Erdoğan threatened to have a reporter “jailed for life” for publishing footage of Turkey’s state intelligence agency giving weapons to Syrian rebels. Last year, a Turkish woman was arrested for tweeting a picture of herself standing on a Quran in red stilettos, after being reported to police by Melih Gokce⁵, the mayor of Ankara, who claimed that "no one has a right to insult our religion." Last month, The European Commission published a report on human rights in Turkey, noting the “serious backsliding” on freedom of expression in the last two years; “Ongoing and new criminal cases against journalists, writers or social media users, intimidation of journalists and media outlets as well as the authorities' actions curtailing freedom of media are of considerable concern.”

It doesn’t really matter what kind of character Gollum is. The bigger issue here is the fact that innocent people could spend years in jail because they incurred the wrath of a very sensitive president. In The Lord of the Rings, Tolkien wrote: “All we have to decide is what to do with the time that is given us.” Erdoğan has decided to spend his time using his country’s courts and police force as weapons against anyone, including teenagers, willing to voice even the mildest criticism against him. He deserves all the insults he gets.

"Bitches," Brittain says. Trahan nods, his matte-black tribal tunnel plugs swaying approvingly.

"Bitches and Obama, basically."

The two men seem ready to meet the challenge as they ready their innovative startup. Brittain, Dryvyng's CEO, brings extensive experience with the intersection of transportation, commerce, and government. Trahan, Dryvyng's branding maven, is an expert at identifying and incorporating existing successful marketing strategies. Together with legal guru and silent partner David Blade (known to friends and foes alike as "The Hammer"), these young men want to revolutionize ridesharing by rescuing it from feminists, Obama supporters, and other Social Justice Warriors.

How will they do it? Though efficiency, top-notch management skills, and a principled refusal to recognize domestic laws, regulations, or courts. "Lots of startups have problems with investors," said Brittain. "We never will. First of all most investors are fucking idiots. Second, if investors sue us, they'll be wasting their time and money. The sovereign state of Great Brittain does not recognize the so-called American courts. Government contract enforcement is tyranny."

"Also, Great Brittain needs women," Brittain added.

Brittain and Trahan plan to distinguish Dryvying from its competitors through innovative pricing and payment models. "Customers can pay for rides with ten different kinds of cryptocurrency, with nude pictures of exes, and with goatee maintenance equipment," noted Brittain. And there will be innovative pricing to match. "If you pay our base rate, we keep the right to sell information about where you went and who you were with," said Trahan. "For a 25% surcharge, David Blade will keep that information confidential." Brittain also noted that suitable riders can also reduce their rates though participation in photography projects that may lead to lucrative modeling contracts. But that's not the end of the revenue streams. "At first we were live-streaming Chance Trahan's music in the cars as a branding technique," said Brittain. "But then we realized: why give value away? And why put up with all these complaints and claims of 'distraction' and 'convulsions'? If you have value, get value. So now, if you don't want to listen to Chance's music in the cars, you have to pay another 30%."

"We get a 99% buy-in rate on that one," Brittain bragged.

Market segmentation is another key. "Uber and Lyft don't know what they're doing," Brittain boasts. "They market to anyone. We don't. We're not looking for colorful riders, if you know what I mean. We're looking for classy riders. And we know what they want. Take GamerGate. We're going to be huge with GamerGate fans. We defy SJWs, we let you play games in our cars. We'll let you vape. You can vape like a motherfucker, dude. We have Trilby racks. We're looking into installing backseat laptops so you can keep up with internet debates. They'll have macros for "RICO" and "cunt" and all the terms you need. Why would you ride with anyone else?"

But can you trust their drivers? Many consumers have horror stories of rude or creepy encounters with at the hands of Uber or various taxi services. "Absolutely, man," says Trahan. "Look: we vouch for these drivers. They're vetted. They're clean. They are post-probation. They run in the same social circles we do — that's how you know you can trust them."

"It's all about character. That's how you know how well we'll do. Because character is destiny."

Unfortunately, I am unable to locate a copy of the full transcripts themselves, which the Post has removed from its website.  A Google cache of the article, before the court issued its order, reveals the two paragraphs that the Post removed because they included quotations from the transcripts:

“I’m so important to these people,” he crowed in a recorded jail conversation with his daughter last year. “I’m the only person in the United States’ history that could ever provide testimony that could close over 60 murder cases, you hear me? I know a lot, sweetie. I’m gonna sit down and write a book about all these different murders and what happened and how they happened. Cause I know the law real good. I’m real sharp with the law.”

[…]

“I done worked out a deal to reduce my sentence and for me to come home, you understand me?” he told his daughter in another conversation recorded from the county jail in November.

But where, oh where, did these transcripts come from?  Surely, the Post's First Amendment rights are surrendered because it engaged in some unlawful act?

The court's order suggests — without directly saying as much or providing any evidence in support — that the Post may have acquired these transcripts as a result of the grapevine:

"The Palm Beach Post [indicated] they were in possession of the recorded calls and that it had posted the transcripts of these recordings on its website[.]  The memorandum indicates that copies of the recorded calls have been circulated amongst certain members of the legal community.  It is uncertain to this Court who distributed that information.  […] It is of some note that the Palm Beach County Sheriff's Office nor the Office of the Public Defender attended the hearing.

How the Office of the Public Defender came in to possession of the recorded calls […] is of great concern to this Court.  Mr. Cobia [the informant whose calls were recorded] argues that they were not provided to [his defense attorneys] as a part of pretrial discovery and were not disclosed by [the Palm Beach Sheriff's Office] as a public record."

The court then answers its own question in the wind:

"The calls appear to have become a part of the court record as a result of Ms. Ramsey, counsel for Smith, filing them in the court file on October 15, 2015."

Indeed, the Post itself has noted that the transcripts were part of the public record.  (Smith is the defendant who filed the transcripts with the court; Cobia, the informant, is expected to testify against Smith.)

Nevertheless, the court's focus is on the point of origin, concluding that only the government could have recorded the calls.  Out of concern for the privacy of the jailhouse snitch — who acted as a jailhouse 'lawyer' to gain the confidence of other residents of the jail in order to betray their privacy interests, however limited — the court found this invasion sufficient to compel a newspaper to stop publishing what's already been published.

But none of this matters, at least as far as the Post's publication is concerned.  The Post could have acquired the recordings or transcripts from a court clerk, a defense attorney, the sheriff's office, or as a result of selling their own souls to a questionable character at a highway interchange in Rosedale, Mississippi.  Where a media outlet obtains information lawfully — even if it knew that their source obtained it unlawfully — the First Amendment protects the media outlet's right to publish that information.  Nor does an individual's privacy interest override a newspaper's right to publish truthful information included in a court record.  If a rape victim's privacy interest is insufficient to vitiate a media outlet's First Amendment rights, the privacy interest of a jailhouse informant, speaking on a phone call he knew would be recorded and could be used against him, is underwhelming as a justification.

It may well be that law enforcement betrayed Cobia as a confidante, deterring others from similarly reporting on what their fellow detainees have told them.  It may well be that even were Cobia not an informant, Florida's authorities invaded his privacy.  But the solution is not to prevent a newspaper from substantiating its reporting, which reveals the unreliable and self-interested nature of informant testimony.

The Post is appealing the ruling.

Judge Peter Jaklevic, pictured here with his draft campaign speech. Image courtesy of http://www.cadillacnews.com/story/?contId=101636.

So when Keith Wood — a wild-eyed former pastor and current lawless anarchist — began distributing seditious incitement to destroy the judicial system, Judge Peter Jaklevic knew just what to do: arrest him.

A 39-year-old former pastor was arrested and jailed in Mecosta County after he handed out fliers informing people about jury nullification in front of the county courthouse.

Keith Wood said he was handing out pamphlets from the Fully Informed Jury Association on Nov. 24 while standing on the sidewalks along Elm Street.

The Fully Informed Jury Association, and idea-terrorists of its ilk, promote the dangerous notion that Americans selected for jurors have a right — even an obligation — not just to follow the orders of judges, but to exercise their conscience and judgment in evaluating the state's exercise of power over individuals. Such incendiary nonsense threatens the very premise of our justice system, which is that jurors will act as obedient foot soldiers in the government's glorious and righteous efforts like the Great War on Drugs.

So Woods had to be stopped. But let nobody say that Judge Peter Jaklevic lacks proportion and mercy. He repeatedly sent intermediaries to Woods to bring him unto Jaklevic's presence.

A little while later, a court deputy came outside and told Wood that the judge wanted to talk to him, and if he refused to do so, the Big Rapids police would come and arrest him.

Woods refused Jaklevic's summons three times, just as Peter denied Christ three times. The hubris!

So Jaklevic ordered Woods arrested. Woods spent 12 hours in jail until he met the $150,000 bond — which he did by putting $15,000 on a credit card to pay a bail bondsman. Even if he's acquitted or the charges are dismissed he won't get that money back. Freedom is expensive.

Now, just as Woods denied Judge Jaklevic three times, Pharisee lawyers might deny Judge Jaklevic's right to rule. They might say that courts have only upheld restrictions on distribution of jury nullification information inside courthouses or in other fora where the government has a right to restrict speech. See, e.g., Braun v. Baldwin, 346 F.3d 761, 763 (7th Cir. 2003). They might insist that multiple courts have struck down purported limits on distribution of jury nullification information in public places like streets, and have narrowed restrictions on "jury tampering" to situations where defendants targeted people they knew to be on particular juries. See, e.g., United States v. Heicklen, 858 F. Supp. 2d 256, 275 (S.D.N.Y. 2012); Verlo v. City & Cty. of Denver, Colorado, No. 15-CV-1775-WJM-MJW, 2015 WL 5012919 (D. Colo. Aug. 25, 2015). They might say that a citizen standing on a public street handing out literature arguing about a core civic function, not directed at any particular judicial proceeding, is core free speech protected by the First Amendment.

But this legalism obstructs justice. We all know what justice is: it's when jurors convict the person the government has accused of a crime. That's the proper function of a jury in America. Everything else is dross. Woods threatened to disrupt that function. How could Jaklevic let that pass?

Let's all take a moment to thank Judge Peter Jaklevic for reminding us what the justice system is about: doing what he and other prosecutors say we should.

Or perhaps he's all three.

The question is pertinent because the internet is aflutter over him again, this time over a video rant which some argue constituted unlawful incitement of violence against Planned Parenthood employees.

I'm a sucker for analyzing whether a statement is, or isn't, defamatory, or a true threat, or actionable incitement. That's my hang-up, and the reason that I'm addressing the question. I'm not suggesting that Joshua Feuerstein is someone to be taken seriously, or that he's fairly representative of anyone other than — sort of — Joshua Feuerstein.

So: let's get to the meat of it. Months ago, Feuerstein posted a video he has since sent to the memory hole. In response to the public outrage over dentist Walter Palmer getting his jollies shooting a lion, Feuerstein ranted that folks are less upset about millions of abortions per year. This is true, but also banal, no matter how you view abortion: our society is often more upset about cruelty to animals than it is about inhumanity to people, as I've mentioned before.

In the course of his rant, Feuerstein graphically characterized abortions and said "I say, tonight, we punish Planned Parenthood. I think it’s time that abortion doctors should have to run and hide and be afraid for their life." As he says this the camera focuses on his face, reclined on a pillow in bed. Online outrage is very fatiguing.

Other people in the online outrage game have demanded that Feuerstein be prosecuted for incitement. Take this gentleman, online personality "Dusty." Dusty is also bearded and angry and deeply invested in video self-promotion. You can tell them apart because Dusty is ranting while seated on an unmade bed instead of lying down on one. Perhaps he shot his video earlier in the day than Feuerstein did. Anyway, Dusty is an Internet Lawyer and explains why Feuerstein's video is not protected speech.

I'm an Internet Lawyer too, I guess, and I don't think it's quite as clear as Dusty.

Was Feuerstein's Statement Actionable Incitement?

The First Amendment does not protect incitement to lawlessness. But incitement, for First Amendment purposes, isn't merely advocating or suggesting lawlessness. The First Amendment protects, for instance, arguments that lawbreaking or violence are morally justifiable or advisable. Advocacy of violence only rises to the level of unprotected incitement when — in the words of the Supreme Court in the key case Brandenburg v. Ohio — it is "directed to inciting or producing imminent lawless action and is likely to incite or produce such action." Otherwise, "constitutional guarantees of free speech and free press do not permit a State to forbid or proscribe advocacy of the use of force or of law violation."

Let's leave aside for the moment whether Feuerstein intended to provoke violence. I find his meandering denials unconvincing. The bigger barrier to liability is the requirement that his video be likely to cause imminent lawless action. That's a tough sell. Imminent, for Brandenburg purposes, doesn't mean "in a few months once some nut has thought about it." It's intended to capture the danger of a firebrand whipping up an angry crowd with the means and target of violence close at hand. That's lacking here — as reflected by the fact that Feuerstein's followers did not, in fact, "punish" anyone "tonight."

It may sound logically unsound to conclude that violence wasn't likely because it didn't occur, but it's legally sound — it's the way courts look at incitement cases. For instance, in NAACP v. Claiborne Hardware Co., the Supreme Court applied the Brandenburg test to protect a fiery speech by an NAACP official who suggested that African-American violators of a local boycott should be attacked. The Court said:

The emotionally charged rhetoric of Charles Evers' speeches did not transcend the bounds of protected speech set forth in Brandenburg. The lengthy addresses generally contained an impassioned plea for black citizens to unify, to support and respect each other, and to realize the political and economic power available to them. In the course of those pleas, strong language was used. If that language had been followed by acts of violence, a substantial question would be presented whether Evers could be held liable for the consequences of that unlawful conduct. In this case, however — with the possible exception of the Cox incident — the acts of violence identified in 1966 occurred weeks or months after the April 1, 1966, speech; the chancellor made no finding of any violence after the challenged 1969 speech. Strong and effective extemporaneous rhetoric cannot be nicely channeled in purely dulcet phrases. An advocate must be free to stimulate his audience with spontaneous and emotional appeals for unity and action in a common cause. When such appeals do not incite lawless action, they must be regarded as protected speech. To rule otherwise would ignore the "profound national commitment" that "debate on public issues should be uninhibited, robust, and wide-open." New York Times Co. v. Sullivan, 376 U.S. at 376 U. S. 270.

So: absent evidence that Feuerstein's video actually led to violence, or absent very strong evidence that the video was made in circumstances where listeners were standing by ready to commit immediate violence, it is probably not unlawful incitement outside the protection of the First Amendment.

Was Feuerstein's Statement A True Threat?

Saying that Feuerstein's video wasn't actionable incitement doesn't end the analysis. Sometimes courts analyze calls for violence as threats rather than as incitement. Notably, in Planned Parenthood v. American Coalition of Life Activists, a deeply divided en banc panel of the United States Court of Appeal for Ninth Circuit upheld a judgment under the Freedom of Access to Clinics Entrances Act (FACE), 18 U.S.C. § 248, against a group that had posted "wanted posters" of abortion providers. Rather than engage in incitement analysis, the court applied true threat analysis — possibly because FACE speaks of threats rather than of incitement. The court found that the wanted posters met the then-prevailing definition of a true threat — "a statement which, in the entire context and under all the circumstances, a reasonable person would foresee would be interpreted by those to whom the statement is communicated as a serious expression of intent to inflict bodily harm upon that person."

In the wake of the Supreme Court's recent decision in Elonis v. United States, it's not clear whether modern true threats analysis also requires that the defendant intended their statement to be taken as a threat, or at least was reckless about its impact.

Feuerstein's video rant probably isn't a true threat. Leaving aside the fact that Feuerstein delivers his broadside with his head on a pillow, and leaving aside the fact that he's a notorious loudmouth whose past rants have not produced (known) violence, his comment doesn't carry any of the true threats indicia that the Ninth Circuit faced in the "wanted posters" case — he didn't attempt to refer to or invoke other acts of violence against abortion providers. Similarly, he didn't single out any Planned Parenthood employee, let alone provide details about how to find them, which is what got white supremacist Hal Turner convicted on a true threats theory.

I wouldn't blame anyone who felt frightened by Feuerstein's video, especially if they worked for Planned Parenthood. I think he's at best indifferent to the impact of his words. I suspect he meant to cause fear and is simply too much of a craven to admit it now. But the First Amendment provides a rather wide and robust buffer zone for speech that winds up protecting a lot of despicable behavior. Some people will always cavort in the margins.

In short: no, in my opinion Feuerstein's video was probably not actionable.

There will be a few common themes familiar to Popehat readers: free speech issues, criminal justice issues, and lawsplainers, as well as the intersection of law and culture. We're open to suggestions and requests.

The regular features are still in development, but will likely include the following:

• On The Case:  a look at the legal, social, and historical context of a well-known Supreme Court case, usually in the free speech realm.  In the first episode:  fighting words, and why Chaplinksy v. New Hampshire isn't really about them.
• Lawsplaining:  you ask us to explain something about free speech law or criminal justice, and we bicker over it.
• Who Are You And Why Are You Here?  Interviews with people we hope you'll find interesting.
• . . . . and more about games, books, movies, and culture.

I've found the Lawyerist's guide to launching a podcast to be helpful, but I'd appreciate other suggestions for podcasting resources, especially in the area of finding open-source music & audio and integrating it. Suggestions, requests, and questions for Lawsplaining will also be welcome.

My goal is to launch early in January.

Several years ago, my father forwarded me an email he thought seemed suspicious. “Do you think this is a scam?” he asked. The email was from an elderly woman in Miami Beach, Florida, who had retired from teaching and was moving into an assisted living situation. She was clearing out her belongings, and she had come across some books she’d almost forgotten.

Fifty years before, this teacher had taken over her classroom from a young woman who was leaving to be married. On her first day, she had looked in the room’s supply closet, where she found a pile of books, most of them inscribed from a father to his daughter. Thinking they seemed special and that the departed teacher might want them someday, she took them home.

As these things go, the books lay forgotten, and by the time she found the young bride, it was through her obituary. My grandmother had died at the age of 87, leaving her son and several grandchildren. The retired teacher, a new internet aficionado, sent my father an email. “Would you like these books?” she asked. And my father, having lived 65 or so years himself in a world that had become more and more suspect and unreliable and scary, was worried that he was being taken for a ride.

As we head into the holiday season, we’re often asked what we’re grateful for, what would be a true gift. As my father recognized when he worried about scammers, the world, while more advanced, is also scarier and sadder in many ways than it was back when my grandmother and her successor were teaching school. I’ve been searching the internet, just as the retired teacher did, but for something different. As I sit around the Thanksgiving table next week with my parents (now in their 70s) and my husband and my teen daughters, I know I’m going to need to smile and tell them all just what makes me feel thankful. But in a year that has been about anything but peace, I’ve been looking for something concrete to hang my “thankful” hat on.

And so I began thinking about my grandmother, and books, and that retired teacher in Miami Beach.
My grandmother was a woman of style, a dedicated learner, and a lifelong reader (and crossword puzzle cheater, but don’t get me started on that). My most vivid childhood memories of her are of sitting in her living room, sometimes on the parquet floor, sometimes on the piano bench, sometimes on her brocade couch, reading some new book we’d checked out from the library. Although I lived a six-hour drive from my grandmother, she knew the librarians at her local branch well enough to talk her way into getting a borrower’s card for me; after an ice cream sundae or a trip to see the giant dolls at the department store, we’d always end up back at the same circulation desk in the same brick building, watching the librarian stamp in ink the due date for some new adventure bound up as a book.

The best part about reading with my grandmother was reading together. I don’t mean that she read aloud to me – from the age of four or so, I was determined to read on my own (I didn’t learn to ride a bike until I was about eight, but that reading thing was way more necessary in my book). But we’d read together, there in her living room, my grandmother with her new mystery thriller, me with my children’s classic on which she insisted. And looking back, what I’m most grateful for in my relationship with my grandmother was that true gift she gave me: a love of books.

There was one book in particular that we both loved: Betty Smith’s A Tree Grows in Brooklyn. Although Francie, the protagonist, lived an underprivileged Brooklyn life, and I lived in a well-to-do Texas town, there was just something about Francie that resonated for me. I wanted to be gritty, like she was, determined to do something with my life. I wanted her powers of observation, to notice the smells of baking bread and the splashes of puddles on the sidewalk. And more than anything, I wanted Francie to be understood for her love of books, even in a family that wasn’t very readerly, the way I wanted to be understood and my passion nurtured – as it was by my grandmother.

Thirty-five years later, one night, when my husband was away for work, I found myself lying in my king-sized bed, reading a book. There’s nothing remarkable about that – my children know that, if they can’t find mom, check the bedroom and see if she’s absorbed in her reading so she can’t hear you call out. But what was special about this winter evening was that my two daughters, ages 6 and 8, were lying next to me, each with her own book. We were mostly quiet, absorbed in our own stories, but every so often, one of us would say, “Listen to this!” and we’d read out a description or a joke or a pithy line. And then we’d quiet again. Eventually, they fell asleep, there in the big bed, their books in hand.

These days, as teenagers, my girls have lots of interests, and I can’t remember the last time we all piled into the big bed and read books together. My older daughter now looks at the stars and imagines flying among them, but my younger daughter still looks down, at books in her lap, at the pages she turns. She reads because she cares about words, loves how they come together into sentences and paragraphs and entire chapters of plot and character and nuance. Last week, she asked me for a suggestion for a book to read. I thought of my grandmother, and I said, “How about A Tree Grows in Brooklyn?”

A few days later, a package arrived from a used book seller. My daughter disappeared into her room, tattered book in hand. For the next few days, she didn’t talk much. She’d get her backpack ready for school or look up if I told her it was time for dinner, but, mostly, she kept her eyes focused down, on paperback pages that told a story of a poor girl in Brooklyn in the 1910s and 20s.
Yesterday, she came downstairs. “I finished it!” she said. I smiled. “Yeah?” I answered. “It has always been one of my favorites.” “Well,” she said, “It’s my absolute favorite. Every sentence is a delicious treat.” A delicious treat. Exactly. A treat that we can devour again and again, from different perspectives and at different times in life, with different people who are important in our lives. Those varied possibilities are so absolutely delicious.

And so I found it, my list of things to be grateful for, the gift I need above all. I am grateful for my grandmother, who took me to the library every visit; I am grateful for my daughter, whose enthusiasm about books fills every room; I am grateful to the retired teacher in Miami Beach, who somehow knew that my grandmother and her family would treasure those books.

And I am grateful for books. During this difficult year, they’ve given me a place to escape. They’ve given me a place to belong. And they’ve helped me see that, whether in the dirty streets of 1920s Brooklyn or the suburbs of 2015 Philadelphia, a tree will always grow.

1357 U.E. (i.e. 3328 C.E., i.e. 3328 AD), Oort Cloud Commensal

After a long shift at the atelier I returned home and turned on the polyseme to catch up on the emerge re the refugee crisis.

#general

"…then we as members of the Commensal have a duty, a moral duty, to help. We've all experienced the wholesales of the refugee family crawling from their burned lander near the shores of the Achelous Sea, the father cradling his dead son as he steps out onto Ganymede. The time to debate is over, and the time to act -"

"Madame Secretary!"

"-the time to act is now. We must -"

The emergent raised his voice. "Madame Secretary! I must object. Before we talk about importing potentially a hundred million refugees, we have to have a serious conversation about whether they can possibly integrate into our culture."

The secretary didn't bother to keep the annoyance from her face. [ translator's note: all references to physical gestures are, at best, illustrative, and – at worst – ficitive ] "You're going to say 'a flood of refugees', aren't you? I, for one find that phrasing offensive. May I remind you that exact sort of language was used just three hundred years ago when the Martian Diaspora brought so many people to us here in the OCC. Are you going to tell the many proud citizens who trace their ancestry to the M.D. that you don't like their kind?"

The emergent shook his virtual head. "It's inane to compare the citizens of the Martian Diaspora to the current refugee crisis. On the Barnes scale the people of the M.D. were almost all type 1 and type 2 ideologues: Nationalists, Trade Unionists, Libertarians, Atheists, Catholics. Non-totalizers, all. The Hitlerite diaspora that threatens to swamp us now -"

"Sir, I find that offensive. This is not a Hitlerite issue. This is an inner system issue. These people aren't coming here to attack us, they're coming here because they're fleeing war."

"Madame secretary I agree, they're fleeing war – a war that the Hitlerites themselves have caused".

The Secretary took a long breath. "I utterly reject that sort of bigotry. To call this a Hitlerite issue is to blame the victims. The problem is not Hitlerism – it's a small evil group of people who are twisting the words – the beautiful words of an ancient faith – to their own destructive ends."

The emergent seemed to cough. "A small group? Twisting the words? Madame secretary, have you absorbed the Hitlerites texts? Have you read Mein Kampf? Have you listened My Idaho Struggle? Have you played through even one of level of A Pure Moon and A Pure Sky: My Manifesto?"

"Yes, sir, I have. Have you? To quote one of my favorite sayings of the prophet 'We want this people to be peace-loving but also courageous, and you must therefore be peace-loving and at the same time courageous.' These are beautiful words, and when we look at our brothers and sisters from the inner system, we need to see that these are the words in their hearts, the words

"Madam Secretary, those quotes are nonsense. I -"

"I can assure you, sir, that they are entirely real! Hitler said those very words. The references are inline and you -"

"I don't mean that they're false. I mean that they have absolutely no bearing on the true core of Hitlerism."

"Sir Emergent, I find that frankly offensive. The core of Hitlerism is the same as the core of any of our ideologies. Respect for one's neighbor, personal growth, family -"

"The core of Hitlerism is none of those things; it's mass-murder, pure and simple. Let me quote from Mein Kampf. 'We shall regain our health only be eliminating the Jew.' This is the core of Hitlerism: the suspicion of contamination, the hatred of the Other. First it was Jews and Gypsies and the disabled. Later it was Hispanics and Blacks. By the time of the Near Earth Wars it was AIs and the Uplifted. Mark my words, if we let Hitlerites into the OCC, next it will be us!"

"Sir Emergent, you are out of line! All serious scholars of Hitlerism agree that the Hitlerite concept of a holy war against Jews is an allegory, an inner struggle against the 'Jew' of our own worst natures. A struggle against hate, against selfishness, against, dare I say it, suspicion of others. And, given your readiness to slander an entire people, it's perhaps a struggle that you yourself should consider engaging in. This slander against their belief system -"

"It's not slander, Madam Secretary, it's historical truth, amply documented by the Hitlerites themselves. Read their holy texts. Look at the historical record. The first war of Hitlerite Expansion in minus 32 U.E. killed 60 million people. The second war of Hitlerite Expansion in 60 U.E. killed 115 million. The third war -"

"It is historically irresponsible to ascribe all of the deaths in those wars to the Hitlerites. The causes of the wars were complicated. Let me remind you that in World War Two – and let us use the proper names for these wars, not some minority's invented jingoistic terms – it was the anti-Hitlerite bigots who used nuclear weapons. And then in the Unification War it was the anti-Hitlerites who unleashed the Sleep Plague. And, of course, in the First Near Earth War it was the anti-Hitlerites who initiated comet strikes. So if you want to talk war crimes, sir -"

"I do want to talk about war crimes, and I-"

"Let me finish. If you want to talk war crimes, then you have to acknowledge that no side is blameless. The World Wars, the Near Earth Wars, the Martian Conflict – those happened long ago, in a different time, and our own ancestors were as much to blame – perhaps even more to blame – for the death toll."

"Long ago? The Martian Diaspoa was only 300 years ago. Many of our AI citizens remember it! But I digress: no one is arguing that there weren't casualties caused by both sides. The argument that those of us against Hitlerite immigration are making is that Hitlerism is inherently a violent expansionist ideology, that all of the wars of Hitlerite Expansion were innitiated by the Hitlerites, and that letting Hitlerites into the Oort will be a terrible mistake."

"Sir Emergent, it is disrespectful and disgusting to slander an entire people – an entire faith community – by labeling them as violent and expansionist. The vast vast majority of Hitlerites have never engaged in violent, and polls consistently show that the majority reject violence. They-"

"Fifty seven percent reject violence – which is another way of saying forty three percent endorse it!"

"If you interrupt me again, this debate is at an end."

The emergent shrugged and the secretary continued. "As I was saying, the majority of Hitlerite believers reject violence. And, in fact, the people that we are discussing today are themselves refugees from the extremist violence of their homelands. We are discussing victims, not agressors here."

Neither party spoke for a moment.

"Sir emergent, would you like to reply?"

"Ah, you're done? Very well. I believe that we both agree that forty three percent of Hitlerites endorse initiating violence, do we not?"

The secretary pursed her lips. "A minority do, regrettably, yes. I'd be curious to see what percent of O.O.C. citizens also do. I bet it's at least as high. Your [ translator's note: the following word is imprecise ] faction, for example, is on record as saying that we should burn the refugee ships before they cross into Jovian space -"

Sir Emergent [ translator's note: the following is terribly imprecise, but no better phrase is available ] drummed his fingers on the podium.

" – and – if I may quote 'destroy them all, so that no more invasion ships will launch'. Between these two choices, genocide or tolerance, the only moral choice is tolerance."

Sir Emergent [ translator's note: as per above ] leaned forward. "First, I object to the assertion that 'my faction' has argued that. There are multiple overlapping phyles in this quor-alliance, as there are in your own. To tar my entire mindshare by saying that it endorses genocide, just because a few of the more excitable four sigmas have said they want to burn the ships is to engage in the non-central fallacy. Second, to say that there are only two choices, burning the ships of the Hitlerite refugees or admitting arbitrary numbers of them to the O.C.C., is to engage in the fallacy of the excluded middle. There are more than two options. We have repeatedly backed porposals in the Unicam to fund refugee colonies on Ceres. Additionally, there are vast numbers of unused and underutilized O'Neil colonies in the trailing Jovian Trojan point, which could be purchased quite cheaply from the controlling AI syndics. More than enough to house all of the Hitlerite refugees."

"House them in permanent refugee camps? To treat them as second class citizens is offensive to post-human dignity – both theirs and ours."

"Madame Secretary, I agree that the Hitlerite refugees shouldn't be treated as second class citizens – they should be treated as non-citizens. Which is what they are!"

"I find your attitude condescending and pre-post-human."

Sir Emergent [ translators note: I give up. ] shrugged. "You are free to have whatever emotional response you prefer. The facts remain stubbornly on my side, though, and they are these:

One: The Hitlerite ideology was created by a madman, a murderer, and a genocidal dictator. It was birthed in war, and has only ever grown by war.

Two: The Hitlerite regime has done nothing but grow for 1,500 years. It has occasional setbacks, yes, but first it conquered the Teutonic regions, then all of Old Europa, then the Northern Hemisphere, then Earth, then the Lunar -"

"Please spare us from the tedious -"

"Madam Secretary, you chastised me earlier for interruption. Please let me finish."

Madame secretary harrumphed.

The Emergent continued "Then the Lunar Republic, then in rapid succession Mercury and Venus. And we've already covered the Martian Diaspora. This list only includes Hitlerite aggression in meat-space. I note that where there was once a flourishing civilization of AIs inside the Belt, there are now precisely zero.

"Three: you can argue all you want that the Hitlerite ideology is fundamentally similar to our own OCC family of ideologies, but it's not; Hitlerism is based on the premise that outsiders must be eliminated. You can argue all you want that Hitlerism has moderated from its early days, but it hasn't; you yourself admit that almost fifty percent of the refugees believe in initiating violence. Their attitudes towards the uplifted and cyborg citizens are even worse. Polls back me up on this. And finally, you can argue that refugees will assimilate into Oort culture and become more moderate in time, but there is little or no evidence to support that. Witness the Jovian Collectives experience with their Hitlerites: the permanent resentful underclass, the recent Hitlerite-led pogroms against uplifted dolphins and racoons on New Europa and Ganymede, the proposed laws against large arrays of personalities.

"Madam Secretary, in short, to admit Hitlerites to the OCC is to invite the destruction of our own society.

"We must be insane, literally insane, to permit this inflow. If we do it, we will be building our own funeral pyre."

"Sir Emergent, that's quite enough. I ask the Moderators General for unanimous consent of the delegates to dissolve this quorum and instantiate another more conducive to proper discourse. A vote please? Very well. We'll now continue with a new construct. Welcome Sir Emergent Novus."

Sir Emergent Novus bowed from the waist. "Thank you for having me here, ma'am."

I turned the polyseme off and checked the replicator. This debate was boring, would never affect me, and – besides – I was hungry.

When I wrote yesterday about the notion of "safe spaces" being used to annex public spaces and dictate what may be spoken within them, I didn't imagine that modern academia would provide me with another example so swiftly. The place is the University of Missouri, where students accused the administration of indifference to overt racism. Activists demanded, and got, some high-level resignations over the matter. (They didn't get everything they wanted: as far as I can tell their distinctly Maoist demand for a handwritten confession and acknowledgement of ideological tenets was not met.) Agree with them or not, the Mizzou activists engaged in classic protected speech, at least to this point.

The safe-space-as-sword came during the victory celebration. The proposition was wantonly naked: the university's public spaces that activists had chosen to occupy were a no-dissent zone, where activists were entitled to be free from differing interpretations of events:

The "parameters" in question were the public university's quad, one of the most quintessentially public spaces in American law and tradition. This sentiment — that students could take over a public space, use it to express their views on a public issue, and shut other views out of it in the name of emotional safety — was vigorously enforced by a crowd threatening a photographer and a communications professor shouting for "muscle" to help her expel media.

All of this — engendered by accusations of racism against African-Americans — comes within living memory of people asserting their right to make public venues culturally "safe spaces" free of African-Americans. Of course, those safety-minded citizens were somewhat less sophisticated in their jargon. They had signs too.

Some people look on this sentiment and despair. I don't. It's a good thing for America to see how mainstream the spirit of censorship is. Some people say the censorship discredits the substantive values the students are fighting for. I don't. The protest about racism rises or falls on its own merits; the anti-dissent sentiment is so banal and common in academia now, and students aren't taught any different. It would be like saying that t-shirts and bad hair discredit the ideas the protesters are fighting for. Some people suggest that these students (and professors) deserve to face the censorship they encourage. I don't. Deserve's got nothing to do with it. We routinely protect the freedoms of people who scorn freedom: Nazis marching at Skokie, Westboro Baptist Church members protesting at funerals, and other assorted nitwits who dream of an America where their whims are law. That's the deal. We're not going to change because some academics and students are thuggish louts. We're not them. The sentiment "only people we agree with deserve rights" is theirs, not ours.

That's why I didn't flip out last week when someone announced they were building "Pillowfort," a friendlier version of the social media site Tumblr. The announcement was met with swift jeers from the usual suspects. Folks derided the idea of a social media site that, even more than the famously left-dominated Tumblr, lets you limit with whom you interact and control who sees your content. But why? Pillowfort would be self-selecting. Nobody goes into the fort who doesn't want to be there. It's not like somebody is wandering onto your social media account and building a fort around you and telling you how you can interact with others. Pillowfort represents something that conservatives used to support in other circumstances: a private club, run by its own rules, with admission limited as its members see fit. If I'm not a member of the club, how its members regulate discourse within it is of little interest to me. Similarly, though organized Twitter blocklists are troublesome to some people, they don't bother me. They, too, are an application of freedom of association. Do I think some lists are organized around silly principles? Sure. But people are like that. Freedom of association is the right to organize ourselves in silly ways.

In short, I support people creating "safe spaces" as a shield by exercising their freedom of association to organize themselves into mutually supporting communities, run according to their own norms. But not everyone imagines "safe spaces" like that. Some use the concept of "safe spaces" as a sword, wielded to annex public spaces and demand that people within those spaces conform to their private norms. That's not freedom of association. That's rank thuggery, a sort of ideological manifest destiny.⁶ It's the difference between saying "I shouldn't be forced to go to a talk by this controversial figure" and "this controversial figure should not be allowed to speak at my school."

This week's example of safe-space-as-sword comes, like many bad ideas, from Yale. Gallons of ink have been spilled already; consider the coverage at The FIRE or Reason or Simple Justice. I won't repeat it all.

There are two remarkable and dangerous things about the notion of safe spaces imagined by Yale students.

The first is the location of that space. It's not a self-selected community or an exercise of freedom of association, because it lacks the element of voluntary entry. It's the safe space of an occupier: students demand that everyone in the dorm, or college, or university conform to their private-club rules. Your right to swing your fist may end at my nose, but their asserted right to safety surrounds you.

The second remarkable thing is the definition of safety. For the moment, let's accept for the sake of argument that some speech can make people genuinely unsafe. Imagine, perhaps, speech advocating for the physical abuse of minorities or urging vulnerable people to commit suicide. But the Yale incident demonstrates that this core concept, once accepted, can be expanded to cover anything. The argument seems to be that because we can imagine truly threatening speech, we must therefore accept uncritically other people's subjective beliefs about what speech is threatening. The speech at issue here was an email acknowledging that ethic Halloween costumes could be hurtful but discussing whether it should be the role of a university to tell students whether to wear them. This is safety as Ouroboros — it is unsafe to question what is unsafe, unsafe to discuss the concept of safety.

The Yale incident is being portrayed, reasonably, as an example of liberal abuse of the concept of safe spaces. But conservative culture is not innocent here. What is the "War on Christmas" but a sort of safe-space argument, an assertion that we have a right to be congratulated for our religious beliefs by corporate America even out in public spaces? And conservatives have long matched the imagined right not to be offended with an equally fatuous right not to be called offensive. There's a difference between calling someone an asshole and calling for someone to be fired or expelled or otherwise silenced. Eager to score points in a culture war, some folks conflate classic more-speech remedies like criticism with actual censorship. That doesn't encourage a principled approach to speech by anyone, let alone college students.

You mean Merrick v. Diageo Americas Supply, Inc., clarifying whether the Federal Clean Air Act preempts common law claims against an emitter, and whether that question is susceptible to interlocutory review?

You know that's not what I mean.

It's a fascinating case. It uses the term "whiskey fungus." If you could grow whiskey like a fungus that would be awesome. I could go for some whiskey fungus right now.

Stop it. You know I'm talking about the big free speech case.

The case about the heckler's veto? Why should I write about it? Eugene Volokh already 'splained it. He's occupied the field. Don't you understand preemption?

You know you want to write about it anyway.

You're not the boss of me.

I'll just wait.

Goddammit.

There. Doesn't it feel better when you surrender? Anyway, what's the case and what's it about?

The case is Bible Believers v. Wayne County. It's about a 2012 incident in which a group called the Bible Believers showed up at the Arab International Festival in Dearborn, Michigan, preached against Islam, and left when they were threatened with arrest for "disorderly conduct" in the face of an angry crowd.

What does that have to do with veto power? What is a heckler's veto, anyway?

"Heckler's veto" is a term used to describe situations where authorities limit or punish speech because of angry, threatening, or violent responses to the speech. For instance, it's been used to describe a school banning students from wearing the American flag on Cinco de Mayo because other students were reacting violently, or removing public transit advertisements when they generate threats. The concept is this: if you allow a "heckler's veto," that means people who don't like speech can suppress it by reacting to it violently or aggressively.

So why was this heckler's veto in court?

The Bible Believers and some members sued the county, the sheriff, and several officers for violations of constitutional rights. They argued that when the cops reacted to an angry crowd by telling the Bible Believers to leave, they violated their rights.

Why was the crowd angry?

The Bible Believers are assholes. They were carrying a severed pigs head "to keep Muslims at bay" and carrying signs that say "Islam Is A Religion of Blood And Murder" and yelling about Mohammed being a pedophile and telling the Muslims at the festival that they were going to hell and so forth.

So basically Breitbart.com: The Live Show.

I don't think they were Trump-fluffing. But otherwise yes.

Did the crowd get violent?

Sort of. Some people threw plastic bottles and debris. The crowd size ebbed and flowed. One guy got hit in the face. At one point the crowd chased them around and threw bottles and garbage. It wasn't a gang brawl, but it was a bad scene.

So what did the cops do?

They told the kids throwing things to cut it out a few times. They rode through on horses and quieted the crowd once. But eventually they pushed through the crowd and told the Bible Believers that they had to leave or be cited for disorderly conduct because they were "creating danger" and impacting public safety by riling up the crowd. So the Bible Believers left.

So what did the Bible Believers do?

This is America! So they sued. But the federal trial court decided that the cops acted permissibly in the face of danger, and that they were protected by qualified immunity anyway. A three-judge panel of the Sixth Circuit agreed. But then the Sixth Circuit agreed to rehear the case "en banc," meaning "with all or at least a whole bunch of the judges on the circuit participating and deciding."

Is it a good decision or a bad decision?

It's a very good decision for free speech advocates. The majority went out of its way to lay out the relevant First Amendment issues in a clear manner and address them, and wound up vigorously supporting the right to say things that crowds hate, and the obligation of police to protect unpopular speech rather than yield to a heckler's veto.

Here's how the majority described what it set out to do:

In this opinion we reaffirm the comprehensive boundaries of the First Amendment’s free speech protection, which envelopes all manner of speech, even when that speech is loathsome in its intolerance, designed to cause offense, and, as a result of such offense, arouses violent retaliation. We also delineate the obligations and duties of law enforcement personnel or public officials who, in the exercise of the state’s police power, seek to extinguish any breaches of the peace that may arise when constitutionally protected speech has stirred people to anger, and even to violence.

In other words, this isn't a "let's rule as narrowly as possible to resolve this case" decision. It's a "let's try to clarify this entire area of law" decision.

So what's the legal issue? Is a heckler's veto unconstitutional?

Not exactly. Courts have referred to the heckler's veto in various different contexts, but it's hard to draw from those diverse situations a clear methodology. Here's what this court said to start it off:

Free-speech claims require a three-step inquiry: first, we determine whether the speech at issue is afforded constitutional protection; second, we examine the nature of the forum where the
speech was made; and third, we assess whether the government’s action in shutting off the speech was legitimate, in light of the applicable standard of review.

That's nicely organized. Free speech cases aren't always clear on the order of analysis.

So the first question is whether the heckled speech is protected in the first place?

Exactly. Here the Sixth Circuit said it was, and that's one of the most important parts of the decision. The cops argued that the Bible Believers were inciting a riot because they were saying incendiary things likely to cause violent reaction. Not so fast, says the Sixth Circuit. It's only unprotected incitement if you try to, and intend to, cause violence:

The Brandenburg test precludes speech from being sanctioned as incitement to riot unless (1) the speech explicitly or implicitly encouraged the use of violence or lawless action, (2) the speaker intends that his speech will result in the use of violence or lawless action, and (3) the imminent use of violence or lawless action is the likely result of his speech. 395 U.S. at 477. The Bible Believers’ speech was not incitement to riot simply because they did not utter a single word that can be perceived as encouraging violence or lawlessness. Moreover, there is absolutely no indication of the Bible Believers’ subjective intent to spur their audience to violence. The hostile reaction of a crowd does not transform protected speech into incitement.

So: that's a no on the "saying things that make people really mad is incitement" theory. That's huge. It's rarely been articulated so clearly.

What about fighting words? I hear about fighting words a lot. Isn't it fighting words?

OK. I'm not saying that it's never fighting words. But it's never fighting words.

Yeah, the cops argued the fighting words doctrine. But the Sixth Circuit noted how narrow that doctrine is.

A second type of speech that is categorically excluded from First Amendment protection is known as “fighting words.” This category of unprotected speech encompasses words that when spoken aloud instantly “inflict injury or tend to incite an immediate breach of the peace.” Chaplinsky v. New Hampshire, 315 U.S. 568, 572 (1942); see also Sandul v. Larion, 119 F.3d 1250, 1255 (6th Cir. 1997). We rely on an objective standard to draw the boundaries of this category—no advocacy can constitute fighting words unless it is “likely to provoke the average person to retaliation.” Street v. New York, 394 U.S. 576, 592 (1969) (citation and internal quotation marks omitted) (emphasis added). Offensive statements made generally to a crowd are not excluded from First Amendment protection; the insult or offense must be directed specifically at an individual. R.A.V. v. City of St. Paul, 505 U.S. 377, 432 (1992) (Stevens, J., concurring); accord Cohen, 403 U.S. at 20 (defining fighting words as a “direct personal insult”). The Bible Believers’ speech cannot be construed as fighting words because it was not directed at any individual. Furthermore, the average individual attending the Festival did not react with violence, and of the group made up of mostly adolescents, only a certain percentage engaged in
bottle throwing when they heard the proselytizing.

As I have mentioned before, just about every court decision in the last half-century has rejected using the fighting words doctrine to justify censorship. The Sixth Circuit could have pointed that out, but didn't — it just pointed out that the doctrine, if it survives, is limited to face to face, direct to one individual words that would provoke an average person to immediate violence. That's narrow.

So the speech was protected. But the crowd was getting violent, right? Can't the police take steps to de-escalate a violent situation?

Absolutely. But what the court said here is that the evidence showed that the police didn't even try methods other than shutting the Bible Believers down. First, the Sixth Circuit articulated the core idea behind a prohibition on hecker's vetoes:

In a balance between two important interests—free speech on one hand, and the state’s power to maintain the peace on the other—the scale is heavily weighted in favor of the First Amendment. See, e.g., Terminiello, 337 U.S. at 4. Maintenance of the peace should not be achieved at the expense of the free speech. The freedom to espouse sincerely held religious, political, or philosophical beliefs, especially in the face of hostile opposition, is too important to our democratic institution for it to be abridged simply due to the hostility of reactionary listeners who may be offended by a speaker’s message. If the mere possibility of violence were allowed to dictate whether our views, when spoken aloud, are safeguarded by the Constitution, surely the myriad views that animate our discourse would be reduced to the “standardization of ideas . . . by . . . [the] dominant political or community groups.” Id. at 4–5. Democracy cannot survive such a deplorable result.

Next, the court seemed to articulate a law enforcement duty not merely to refrain from silencing the controversial speaker, but an affirmative duty to protect them:

Nor can an officer sit idly on the sidelines—watching as the crowd imposes, through violence, a tyrannical majoritarian rule—only later to claim that the speaker’s removal was necessary for his or her own protection. “[U]ncontrolled official suppression of the privilege [of free speech] cannot be made a substitute for the duty to maintain order in connection with the exercise of th[at] right.” Hague v. Comm. for Indus. Org., 307 U.S. 496, 516 (1939).

That's very unusual, because the courts generally don't impose affirmative duties on cops to protect people, only duties to refrain from doing things.

Ultimately the court didn't say that cops can never silence a speaker in order to keep the peace. Rather, they said that such a decision is going to get the most exacting type of scrutiny — second-guessing — that the court can offer:

The rule to be followed is that when the police seek to enforce law and order, they must do so in a way that does not unnecessarily infringe upon the constitutional rights of law-abiding citizens. See Gregory, 394 U.S. at 120 (“[A] police officer[’s] . . . duty is to enforce laws already enacted and to make arrests . . . for conduct already made criminal.”) (Black, J., concurring). The police may go against the hecklers, cordon off the speakers, or attempt to disperse the entire crowd if that becomes necessary. Moreover, they may take any appropriate action to maintain law and order that does not destroy the right to free speech by indefinitely silencing the speaker. Fundamentally, no police action that hinders the speaker’s freedom of speech should be deemed legitimate in the eyes of the Constitution unless it satisfies strict scrutiny, which requires the police to achieve their ends by using only those means that are the least restrictive with respect to the speaker’s First Amendment rights.

That's huge because of the lack of typical credulous deference to law enforcement decision-making. The normal stance of courts is "cops have to do what they think is right for law and order and we're not going to second-guess their call in the heat of the moment." The Sixth Circuit is saying "no, if a cop shuts someone up to keep the peace, we're going to look very carefully to see if there is anything else the cop could have done instead."

The Sixth Circuit found that the evidence showed that the cops here made no serious effort to control the crowd, and instead went straight for the shut-up-the-speaker remedy.

So the court found that threatening the Bible Believers with citation was a free speech violation?

Yes. And based on the same analysis the court said it was also a violation of their right to free exercise of religion, and a violation of their equal protection rights, because the cops preferred the mob over the speaker.

But wait. When cops violate people's rights, don't they usually get off because they have immunity?

Yes. Cops have qualified immunity, meaning that their actions are protected unless their behavior violates "clearly established constitutional or statutory rights" that "a reasonable person would have known."

When there's a contentious argument about whether a cop's action was a violation of rights in the first place, courts usually say that the right in question wasn't clear enough to remove the cop's immunity. Not here. The court said the right in question was clear:

The Deputy Chiefs’ position is untenable and unsupported by the record. As is evident from the Supreme Court opinions detailed above, and as explicitly stated in Glasson, “[a] police officer has the duty not to ratify and effectuate a heckler’s veto . . . . Instead, he must take reasonable action to protect from violence persons exercising their constitutional rights.” 518 F.2d at 906.

The court ended with a flourish:

But the answer to disagreeable speech is not violent retaliation by offended listeners or ratification of the heckler’s veto through threat of arrest by the police. The adults who did not join in the assault on the Bible Believers knew that violence was not the answer; the parents who pulled their children away likewise recognized that the Bible Believers could simply be ignored; and a few adolescents, instead of hurling bottles, engaged in debate regarding the validity of the Bible Believers’ message. Wayne County, however, through its Deputy Chiefs and Corporation Counsel, effectuated a constitutionally impermissible heckler’s veto by allowing an angry mob of riotous adolescents to dictate what religious beliefs and opinions could and could not be expressed. This, the Constitution simply does not allow.

So, this is just a circuit case, not a Supreme Court case. How important is it?

Very important. Across the country, people in heckler's veto situations will be citing this, and it will draw other courts to agree or disagree. It may even reach the Supreme Court.

Thanks. There. Was that so hard?

I will destroy everything you love.

I read the news story about the search for her with a hard, cold clenched fist in my stomach, looking for the words I was afraid would be there. I found them. She "suffered from depression." I took some deep breaths, and went for a walk.

The worst fears of her parents, her friends, her community were bound up in those three words and what they implied. Those worst fears were realized, tragically, when police found her. She had taken her own life. She was 22. The story describing her mentioned that she had John 3:16 tattooed on her back: "For God so loved the world, that He gave His only begotten Son, that whoever believes in Him shall not perish, but have eternal life." It's a verse full of indescribable hope.

Suicide cuts a wide gulf across our society. It's a gulf between people who cannot conceive of why a bright, pretty young woman surrounded by supportive family and friends could kill herself, and those who can. The people who don't understand try, but fail, to think of circumstances so terrible that they'd kill themselves rather than face them. They don't grasp the way depression kills you — not by heaping burdens upon you, but by making you incapable of thinking rationally about the ones you already have, by making you certain you can never survive them and don't deserve to. People who don't understand often regard suicide as a hateful, selfish, unfeeling act. Perhaps it would be if they did it, because they are capable of believing that the world is better with them in it. They're able to believe that the people who love them will be better off if they stick around.

David Foster Wallace — a moody, wordy man — understood it, though not enough to save himself. In Infinite Jest he described it. It's not clear how many people knew then that he was talking about something he had felt:

The so-called ‘psychotically depressed’ person who tries to kill herself doesn’t do so out of quote ‘hopelessness’ or any abstract conviction that life’s assets and debits do not square. And surely not because death seems suddenly appealing. The person in whom Its invisible agony reaches a certain unendurable level will kill herself the same way a trapped person will eventually jump from the window of a burning high-rise. Make no mistake about people who leap from burning windows. Their terror of falling from a great height is still just as great as it would be for you or me standing speculatively at the same window just checking out the view; i.e. the fear of falling remains a constant. The variable here is the other terror, the fire’s flames: when the flames get close enough, falling to death becomes the slightly less terrible of two terrors. It’s not desiring the fall; it’s terror of the flames. And yet nobody down on the sidewalk, looking up and yelling ‘Don’t!’ and ‘Hang on!’, can understand the jump. Not really. You’d have to have personally been trapped and felt flames to really understand a terror way beyond falling.

An acquaintance commented on this passage to explain why the love and support of friends and family isn't always enough to save someone. Friends and family, she said, are on the other side of the flames. They may shout encouragement and promise rescue and yell at you to hang on. But the flames keep you apart. And the flames keep coming, higher and closer. And so you jump anyway.

When I wrote about severe depression earlier this year, I mentioned the mindset that saved me. It wasn't a belief that I could get better. I didn't believe, and couldn't hope. I couldn't think straight. The only thing that worked was surrendering and putting myself in the hands of others. I didn't believe in myself, but I knew that the people who cared would take care of me. And so they did, until I could hope and believe again.

I think people don't get help in crisis because they can't believe, can't hope. Going to a parent or a friend, calling a hotline, making an appointment with a doctor can feel futile if you can't believe that it will make things any better, if you can't see how things could possibly improve. But that's not what you have to believe. You only have to believe that there are people who care for you, whether they are loved ones or strangers dedicated to helping people like you. Depression lies. The leap of faith required is that the people who care about you know the truth. The leap of faith is that if you lay down your burden they will pick it up. They will.

If you're ever in crisis, call the National Suicide Prevention Lifeline. Just say "I need help." And say it to a loved one. You may not be able to imagine it now, but they will lead you out.

Edited to add: I'm doing well right now. Thanks for asking.

Anyway, this time Scott's being threatened by an Ohio attorney named Dean Boland. Boland caught some bad publicity a few years ago for . . . well, let's the United States Court of Appeal for the Sixth Circuit describe it:

To help defendants resist child-pornography charges, technology expert and lawyer Dean Boland downloaded images of children from a stock photography website and digitally imposed the
children’s faces onto the bodies of adults performing sex acts. Boland’s aim was to show that the defendants may not have known they were viewing child pornography. When the parents of the children involved found out about the images, they sued Boland under the civil-remedy provisions of two federal child-pornography statutes. The district court granted summary judgment to the parents and awarded them $300,000 in damages. We affirm.

Yikes.

Anyway, Scott wrote about this case quite sympathetically, suggesting that Boland's actions did not warrant civil or criminal liability. Now, more than a year after asking Scott nicely to take the post down, Boland has resorted to threats.

By way of summary, you cite to a Wired article and quote as follows: “Boland was an expert witness for the defense in a half-dozen child porn cases and made the mock-ups to punctuate his argument that child pornography laws are unconstitutionally overbroad because they could apply to faked photos.”

This quoted statement is false. The exhibits were not used for that purpose at all. This statement is false and defamatory and is causing me professional financial harm which is calculable.

This statement in the article is defamatory and false: “As a result, in 2007 he found himself the defendant in a deferred federal child-porn prosecution in Ohio….” I have never been involved in any prosecution, never been a defendant in a criminal matter and have maintained good standing as a lawyer in Ohio with a no discipline record. I did not enter into any agreement called a “deferred prosecution agreement” nor even words to that effect. This statement is false and defamatory and damaging to my professional reputation.

“Given that Boland was prosecuted (even though it resulted in a deferred prosecution)” Again, this is a false statement. I was never prosecuted for any conduct in this case nor any other. I never entered a deferred prosecution agreement with the government. This statement is defamatory and causing me real, financial harm which is calculable.

Very bad judgment appears to be Mr. Boland's habit. This is an incredibly stupid and reckless approach, certain to trigger the Streisand Effect and generate far more bad publicity. Scott's comments are all supported by the Sixth Circuit decision describing Boland's case. And that's not all. I went on PACER and pulled many filings from Boland's case. I pulled, for instance, Boland's Pretrial Diversion Agreement with federal prosecutors, which includes stipulated statements of fact consistent with Scott's (and the Sixth Circuit's) description. I pulled a federal prosecutor's leter threatening to revoke that Pretrial Diversion Agreement based on Boland's apparent denials of facts in the civil case. I pulled a transcript of his expert testimony that seems to support the characterization of it. I pulled Boland's own pro se filings from the civil case, which supported Scott's (and the Sixth Circuit's) characterizations.

Based on reading Boland's pro se filings, I suspect he has some sort of elaborate semantic theory in mind: the agreement was a "Pretrial Diversion Agreement" and not a "deferred prosecution agreement," and so forth. That's frivolous. Truth is an absolute defense to defamation, and for these purposes truth means "substantial truth." A harmful statement is true for purposes of defamation law if it gets the "gist" or "sting" of the harmful fact right. Under this doctrine it doesn't matter what you call Boland's agreement; it matters that its nature and effect were correctly described. The same is true for any linguistic argument Boland might construct about the exact nature of his expert testimony.

It's rare to see a defamation threat directed at statements that are so clearly and easily proved true based on the public record. Boland doesn't need a defamation suit. He needs a good friend to talk him out of this idiocy. This will not end well for him.

Stupid defamation threats: don't make them.

A few weeks ago the Brown Daily Herald published a rather odd and meandering column by M. Dzali Maier '17 entitled "The White Privilege of Cows" that pondered whether some cultures thrived more than others because of circumstance or because of biological differences. For example:

Thus, whenever I see a white college student, reeking of privilege, I recall the coincidence (or causal relationship) between white physical features and animal agriculture. It is still a question whether or not evolution endowed Eurasians with skills utilized to capitalize on the good luck of livestock animals, or whether Eurasian features just happen to be a poor man’s clue to agricultural history.

Um. Okay. "White People: Naturally Good With Livestock?" I see a series of awkward meetings with a thesis adviser in Maier's future.

I'm generally uninterested in investing much time or effort into exploring whether human ethnic groups have innate biological differences that contribute to "success." I start out very skeptical, since it's a field that is historically so driven by junk science and bigotry. Now? Well, to paraphrase the Simpsons, even though the subject may not be inherently racist, it's #1 with racists. Ultimately I don't see it changing how I treat people, or how the law should treat them, whatever the outcome of the inquiry.

But it's a concept that the marketplace of ideas can deal with very handily. College juniors asserting in student newspapers that white folks may be naturally good with cows does not strike me as an event requiring official intervention.

I'm not sure that's the prevailing sentiment of modern students, or of faculty.

To the extent that anything at Brown is notable, the angry reaction to Maier's column was. The paper added a cringing apology at the start of the column.

We initially made the decision to publish the column, as we generally edit opinions columns for style and clarity alone, giving our columnists great leeway in making their argument as part of our commitment to freedom of expression. We regret that decision and believe it’s clear that this column crossed the line from an opinion we merely disagree with to one that has no place in our paper. The Herald is committed to an accurate and thoughtful opinions section, and we are taking steps to prevent similar issues in the future.

Students and recent graduates called openly for censorship of speech like Maier's. Students demanded that the paper apologize and commit to ill-defined ideological boundaries. An English professor opined that speech can cause physical and emotional harm. Notably, students attacked not only the column, but the sentiment that the paper ought to be free to publish it. Take Alex Seoh '14:

When you defend harmful speech, you are not just a bystander. You are a barrier to social change. Whether you ultimately delay the realization of civil rights and gender equity by weeks, months or years, you are delaying our progress, and you will be on the wrong side of history. Freedom of speech should be valued but not when it infringes upon the freedom of others. It is clear how “The white privilege of cows” infringed upon the rights of people of color here at Brown.

Students Liam Dean-Johnson '16, Aidan Dunbar '16, Anastasiya Gorodilova '16, Nico Sedivy '17, and Madison Shiver '17 resorted to the familiar argument that free speech for some inhibits the rights of others whose feelings are hurt. Though they tried to frame their argument as being about the paper's editorial standards, ultimately their point is that the concept of free speech should serve a particular ideological point of view:

Censorship has a particular meaning that has been lost in these debates. Censorship is the exercise of power to suppress challenges to the status quo. People of color calling attention to racism does not constitute an overbearing power structure that will limit free speech. The oppressed by definition cannot censor their oppressor.

It probably doesn't occur to those students to question what constitutes the status quo, and what constitutes power, on a particular college campus. Fish don't know they're swimming.

Some faculty in the Brown community pushed back and supported Maier's right to write the column and the paper's right to run it. So did some students. But like the Wesleyan incident, Brown's tumult reflects that an appetite for censorship is common and mainstream, not an outlier.

Should student newspapers exercise some editorial control in deciding which opinion columns to run? Sure. Most papers aren't going to run an editorial arguing that the moon landing was faked or that the sun revolves around the Earth. Could a student paper have declined to run Maier's column on the grounds that, scientifically, it's gibberish? Maybe. But would that paper be subjecting every opinion column to intellectual rigor, or just the opinion columns that fell outside a range of popular viewpoints? Public clamor for censorship — and demands that papers apologize for publishing offensive viewpoints — do not create an environment where student journalists can make such decisions.

Elaina [8 years old]: Jesus! Give me a monkey!

Me: . . . . what?

Elaina: Oh. Jesus. Please give me a monkey.

Me: What are you talking about?

Elaina [with poorly concealed impatience]: I'm ASKING JESUS for a MONKEY, Daddy.

Me: Jesus is not a monkey-god. Why are you asking Jesus for a monkey?

Elaina [pointing]: That sign says to.

Me: Mercy. That sign says ask Jesus for mercy.

Elaina: What's mercy?

Me: Being merciful is like being kind and forgiving.

Elaina: It would be kind to give me a monkey.

Me: But it wouldn't be merciful to the monkey.

Elaina: YOU'RE A MONKEY

Me: See, this is exactly what I'm talking about.

Elaina [loudly and very atonally singing]: JEEEEEESUSSS, GIVE ME A MONNNNNNNKEY

Me: STOP YELLING AT JESUS

Johnson filed his lawsuit in a Missouri state court.  Gawker removed the lawsuit to a federal court and asked the court to dismiss it, asserting that Missouri doesn't have personal jurisdiction over Gawker and that Johnson's case won't survive California's anti-SLAPP statute.

In response, Johnson filed a, uh, colorful brief consisting of collages of evidence, incomplete citations, and meandering arguments, spanning one hundred and eleven pages, mostly consisting of irrelevant arguments about how Gawker is a bad media outlet, which is completely f–

Wait, hold up.  Why did Chuck sue in Missouri if he's from California and everyone else is in New York?  And I thought you said this was in a state court, so why does a federal court even care? And why would a Missouri court care about a California law?

How did you get in here?  You're not real.

Yes the good-golly I am.  Besides, Ken didn't say you couldn't rip off this clever framework.  Now tell me what the bejewels everyone's doin' in Missouri.

Well, Johnson had a lawyer there, because he had previously filed a lawsuit in Missouri seeking the juvenile records of Michael Brown, the young man who was killed by a Ferguson police officer.  Johnson lost the lawsuit and his appeals all the way up to the Missouri Supreme Court were summarily denied.

Having a lawyer in a particular state is not a good reason to sue in that state — unless you or one of the defendants lives there.⁹

Why not?

Because there's no jurisdiction.  Whenever you want to bring someone from State A to a court in State B, you have to show that the court can exercise personal jurisdiction over them.  To over-generalize: that means that the plaintiff has to be able to show either (1) specific jurisdiction: the defendant did something in State B and that that something is what you're suing over; or (2) general jurisdiction: the defendant does a lot of things in State B and they could probably expect to be sued there.

In defamation cases, the test for specific jurisdiction is the effects test: did the defendant direct their conduct toward State B such that the effects of the defamation are felt there?¹⁰

Johnson argues that he sued in Missouri because his attempt to learn about Michael Brown's background made him popular there.  This plainly contradicts his argument that he's not a public figure, but we'll get to that in a minute.

Beyond that, Johnson argues that because (1) Gawker has written about Ferguson; (2) Gawker has insulted the fan base of the St. Louis Cardinals¹¹; and (3) Johnson's lawyer in St. Louis has seen advertisements about St. Louis on Gawker's site, Gawker is subject to jurisdiction in Missouri.  Were this a lawsuit about Gawker's Ferguson or Cardinals articles, or about Gawker's advertising, Gawker might be subject to jurisdiction in Missouri.  But even taken together, I don't think this is sufficient to show that Gawker's acts amount to a continuous and systematic presence in Missouri.  As Johnson notes, "[p]ersonal [j]urisdiction is about notice."  But Johnson has reported from Missouri, California, Mississippi, and elsewhere — that doesn't mean Gawker is subject to personal jurisdiction wherever Johnson goes.

Plus, selling advertising on a site which uses geolocated targeting to customize ads to the visitor isn't targeting the state.  If that were true, almost any website with ads on it would be subject to the jurisdiction of any state.  Likewise, having a number of readers in a state — or, as Johnson argues, a number of Twitter followers from Missouri — would subject almost every online publication to jurisdiction within that state.  No.

This takes us to about page 79 of the brief.

You keep carping on about the length of the brief.  Isn't there a court rule requiring legal documents to be long and boring?

No.  But there are rules requiring opposition briefs to be limited in length — how many pages you get depends on the court.  In this court, it's fifteen pages.  As Ken points out, this means that Johnson only missed by about 640%.  The discussion on general jurisdiction alone goes on for about seventeen pages.

Of course, Johnson's lawyer asked the court for permission to file a longer brief, which one usually does before it's due.  But after asking for three (maybe four?) extensions and blowing the initial deadline to file the response, the clerks and judge will be…. displeased.

Enough with the boring procedural stuff.  Get to the point.  Who's getting slapped around?

Well, that depends.  Someone's positioning himself for a bench-slap¹², but when I said 'SLAPP' earlier, that's referring to, well, slightly less boring procedural stuff.

Okay.

Glad you asked.  An anti-SLAPP motion is a procedural tool inten–

I thought we were done with the procedural stuff.

No.  Procedure is everything.  Anyway, an anti-SLAPP motion is a tool intended to protect freedom of speech.  A lot of people file lawsuits that, intended or not, cause their enemies to shut up.  Defamation lawsuits, in particular, can be profoundly ruinous if you're not blessed with a huge bank account.  So, an anti-SLAPP motion applies when someone's free speech¹³ is the subject of a lawsuit.  Once it's filed, discovery is frozen and the plaintiff — the person suing — must show their cards at the beginning of the case: do they have enough admissible evidence to demonstrate at least some chance of winning?  If they do, the case moves forward; if not, the case is over and the plaintiff has to pay the defendant's attorneys' fees.

So what's the federal anti-SLAPP law look like?

There isn't one — yet.  Instead, when a federal court is weighing state claims — defamation, for example, is a state claim, as opposed to, say, copyright infringement, which is almost exclusively a federal claim — the court can apply a state's anti-SLAPP law.¹⁴

Here, however, it's tricky.  Missouri has an anti-SLAPP statute, but it's limited to cases involving speech in a public hearing, so there is no broad Missouri anti-SLAPP statute concerning free speech generally.  Plus, in a case involving parties from two different states, the federal court has to decide which state's substantive laws to apply.  In defamation cases, this usually means that the state in which the plaintiff was harmed will apply.  While Johnson makes a vague argument about how he was harmed in Missouri, he's a California resident and his business is based in California.  Because California's substantive law of defamation applies, that means that California's anti-SLAPP statute also applies.  Under the burden-shifting rubrick of California's anti-SLAPP statute, Gawker merely has to show that the lawsuit involves speech on a matter of public interest.  After that, Johnson has to proffer admissible evidence establishing that he has some possibility of success.

Please get to the actual substance already.

Okay, okay.  So, if Johnson has to submit admissible evidence to demonstrate that he has at least a tenable claim, how'd he do?  Poorly.

Both Johnson and his lawyer submitted affidavits.  His lawyer's consists largely of attempting to introduce various articles from the internet, but these — with the exception of articles written by the individual defendants (and maybe other Gawker employees) — are hearsay.  That is, they're statements by people who aren't in court (or testifying under oath through affidavits) about Gawker.

Johnson also submitted an affidavit, which includes this:

If you find yourself testifying under oath about not having defecated on a floor — publicly or privately — something has gone terribly wrong in your life.

But let's back up for a moment: what is it that Johnson has to show?  The anti-SLAPP portion of Gawker's assault makes several, brief, arguments.

First, Gawker argues that Johnson is a public figure — someone who is fairly well-known and attracts public attention.  That would mean that Johnson would have to establish actual malice in order to win a defamation case.  That's a term of art meaning that Johnson has to show that Gawker either knew that its statements were false or just plum didn't care whether they were true or false.  This is difficult to show, both because it means showing, essentially, what was in someone's mind when that person said the mean nasty things.

Johnson can't pull that off.  At least not without sitting the writers down in a deposition and figuring out what they knew or thought at the time.  He's asking the court to allow him time to conduct some discovery, but California's anti-SLAPP statute freezes discovery the moment it's filed.  It's unclear whether this provision applies when a federal court is weighing an anti-SLAPP motion,¹⁵ and this is perhaps the only coherent argument Johnson makes as to why his case shouldn't be dismissed under the anti-SLAPP statute.

Johnson is a public figure.  His brief boasts about his broad readership in Missouri, that he has "interviewed with local news organizations, made statements, and appeared on local television," and that he "has uncovered a number of major news stories in his career."  He's contemplated running for Congress¹⁶, argues that he's brought down U.S. senators and a candidate for Speaker of the House, and his banishment from Twitter was covered by CNN.¹⁷

Johnson also argues that one of the Gawker writers he's suing — Greg Howard — has a motive to lie about Johnson because Howard once debated a random commenter about Michael Brown, raising questions about "how [Howard] might feel about a journalist trending in the news for his dogged reporting of the Michael Brown death and Ferguson Riots from a diametrically opposed point of view[.]"  Johnson then attempts to tie the timing of an article he posted about his Michael Brown lawsuit to articles written by Howard and Gawker.  Being generous, this might suggest actual malice (in that there is a motive to ignore whether something is true), but it does not approach the "clear and convincing" evidence required to establish actual malice.  Moreover, disliking someone is not sufficient, on its own, to constitute actual malice — "malice" is a term of art; it doesn't mean thinking mean things about someone.

Johnson also asserts that he has been vindicated with respect to his reporting (once asserted to be inaccurate) about Sen. Bob Menendez.¹⁸  But the revelations about Sen. Menendez didn't come about until after the Gawker articles.  Actual malice requires knowledge (or reckless disregard) of falsity at the time the statements were made.  At that time, it was widely believed that Johnson's reporting on Menendez was erroneous, and reaching a conclusion (even a wrong one) based on disclosed facts — that is, the story linked by the article, is a statement of opinion, not fact.¹⁹ In any case, the back-and-forth discussion about public figures is the very reason why the First Amendment — through the "actual malice" standard — grants "breathing room" for people to get things wrong.  Johnson can't meet that here.

Second, before the court has to even consider whether Johnson is a public figure, the court has to figure out whether these statements are even defamatory.  That is: would a reasonable person, apprised of the total context in which the statements were made, interpret them as a statement of fact?  Or are they hyperbolic statements, statements of opinion, satire, or anything other than an assertion of fact?  In this context, whether Johnson wants the ability to conduct discovery is perhaps irrelevant: all of the documents and statements at issue can be put before the court, so there's no reason to conduct depositions or issue subpoenas.

While I've previously discussed why I don't believe the statements are factual, but are instead hyperbolic satire and obvious jokes, one thing sticks out to me:

Even without much in the way of admissible evidence, Johnson's lawyer digs him in deeper.  Among other things, he admits that one Gawker article was satirical.  The only argument summoned here is that one would have to know who Johnson was and what he did in order to understand its satirical bent.  But whether a statement is defamatory is determined by whether a reasonable person, having knowledge of the context, would perceive a statement to be one of fact.  If it's not a statement of fact — and satire isn't — then it's not defamatory.

Third, Johnson seeks to hold Gawker liable for statements made by commenters, asserting (generally) that Gawker is liable for republishing the defamatory statements of others.  To generalize, if you repeat the defamatory statements of someone else, you can be liable for defamation along with the original speaker.  However, Section 230 of the Communications Decency Act ("CDA") broadly protects websites from being held liable for the comments of their users.  This is what prevents you from suing Facebook when your former friend calls you a "dirty rotten scoundrel who supports Donald Trump and is basically a cat lady, but with opossums."

Johnson attempts to circumvent CDA 230 using the usual suspects — Roommates.com²⁰ and so on — and argues that by promoting defamatory comments, Gawker lost its immunity.  According to Johnson's theory, commenters are like unpaid interns, so… well, your guess is as good as mine.  But "promoting" (or highlighting) comments does not remove the shield established by CDA 230.  Johnson also argues — without any authority in support — that because Gawker encourages people to submit comments anonymously, and doesn't keep track of identifying information, there is no immunity.  These approaches to voiding CDA 230 immunity have been tried by a number of plaintiffs, and they never work.

Get to the floor stuff.  I came here to read about the floor incident.

Uh.  Okay.  Well, the long and shi– short of it is that Johnson vehemently denies it.  He also concedes that Gawker asserted that the rumor was false, and that most of Gawker's audience would believe Gawker's assertion that the rumor is false.  That… isn't defamation.²¹  Johnson has a point — ably argued, to his lawyer's credit — that Gawker's journalistic model, as applied here, is worthy of vehement criticism: Gawker raised a rumor in order to mock Johnson, while simultaneously noting that it was false.  But Johnson's critique is a matter for court of public opinion, not some far-flung court in Missouri.  As a matter of free speech, Gawker should be permitted a wide berth to hold a mirror to people who seek out public attention.

That's it? It took 111 pages to say that?

Mostly.  The rambunctious night owls on Twitter had a fun time pointing out some of the typos and chaos in this thread, if you want to see more.

So where is this going?

It's hard to tell.  The Missouri court is unlikely to be familiar with the application of California's anti-SLAPP statute, and Johnson's 111-page wordvomit doesn't remotely help clarify the issues.  That means it's somewhat unpredictable as to what the court will do.

That said, Johnson has agreed to the court transferring the case out of Missouri to California.  I suspect the court will grant him that wish, if only because it's far less work to read and dissect 111 incoherent pages.  That would allow a California court to consider the anti-SLAPP issues, which is something a California court is much more likely to be familiar with.  This also allows the court to skip over the question of whether Gawker is subject to the Missouri court's jurisdiction (although I think the answer is quite clearly 'no' here.)

In any event, that Johnson blew the initial deadline to respond (after seeking several extensions, which Gawker's lawyers graciously agreed to give him) and then submitted this monstrosity without first asking permission is unlikely to help him.  I suspect Gawker will move to strike the entire response, and the court will be tempted to grant it.  That's possible, but it's more likely that the court will want to resolve the case on the merits, rather than on Johnson's abject breach of the court's rules, and will transfer it out to California.

Why doesn't Gawker just pay the guy to go away?

Money attracts lawyers.  Lawyers multiply.  Money doesn't.

Postscript by Ken:

Just a few quick points.

First, if you get several extensions to file opposition briefs, then blow the deadline and ask forgiveness, then file half of the opposition just barely before the midnight deadline and most of the supporting documents hours later after the deadline, and you file an incomprehensible 111-page rant in a district with a 15-page limit, most federal judges will take it as disrespect. In fact, most federal judges will view it as akin to giving them the finger. This is foolish.

Second, I can't emphasize enough Adam's point that a vast amount of the documents attached to Chuck's brief as exhibits are inadmissible because they're hearsay — that is, out-of-court-statements by a third party. The problem is that both in establishing personal jurisdiction (now that it's been challenged) and in responding to an anti-SLAPP motion (if the judge reaches it), it's Chuck's burden to come forward with admissible evidence. It's not clear to me whether the person who wrote Chuck's lawyer's declaration understands what admissible evidence is.

Third, everyone makes typos now and then, and most of us over a long career will manage to leave a stray note or missing cite in a brief. But if you're going to file a brief chock-full of missing cites, it would be optimal to try to leave the CITE COMPLAINT note out of the first page.

Fourth, federal judges in diversity cases tend to try to resolve things with the least exercise of federal judicial power possible. Here that would be finding that Chuck has failed to carry his burden of demonstrating personal jurisdiction.

Fifth, I will refrain from a long rant on how awful this brief is, in legal argument, organization, and factual support. I'll just say this: it is comically bad. I have seen worse briefs filed by lawyers, but very few, and none that were so bad at such length. It's about as good as an average pro se brief, and substantially less competent than a brief by an experienced pro se litigant. Does that mean for sure that Chuck will lose the motions? No. Sometimes judges actually go to the law and the facts without regard to the quality of advocacy, which when you think about it is a good thing. It's conceivable Chuck could win on the merits, though not likely. But if he wins, it will be despite this brief, not because of it.

[Update (10/19):  The court has stricken Johnson's response and exhibits, noting that the "seventy-page narrative discussion of facts appears to be excessive and inappropriate[.]".  He has until October 22 to file separate memoranda, with the court generously offering him to fill each one with 20 pages of crayon, and, if they desire, a separate document setting forth all of the facts.  The request for a stay was denied for failure to file a memorandum in support. The judge also pointed out that he can't rule on a motion to amend the complaint if Chuck doesn't submit the traditional proposed amended complaint for evaluation. The judge also quite politely asks Chuck and his lawyer to take a shot at complying with a series of rules governing the format and contents of the documents.]

[Update (10/22):  Chuck Johnson has now filed his do-over attempt at responding to Gawker.  Here are his oppositions to the motion to dismiss and anti-SLAPP, and his proposed First Amended Complaint.  I've only briefly reviewed them, and his lawyer's writing is far better organized, clearer, and occasionally coherent, but I still strongly doubt that Johnson will be successful.  A couple of things stick out.

First, he wants to sue under a theory that Gawker deprived him of his civil rights because they don't keep records of all of their commenters.  To get there, however, he needs to allege that Gawker was a state actor.  He attempts to do so by asserting that because Gawker is protected by CDA Section 230, they're a state actor.  This is sanctionably frivolous.

Second, a number of arguments advanced by Johnson — including that Gawker is a "state actor" because it fails to keep records of its commenters, and that California's anti-SLAPP statute can't be applied in federal court — would substantially undermine protection of free speech if they were accepted.  As a journalist and a self-proclaimed champion of free speech, Johnson ought to be ashamed.]