Popehat

A Group Complaint about Law, Liberty, and Leisure

"Clock Boy" Gets His Clock Cleaned with Texas' Anti-SLAPP Statute

by 51 Comments

More than a year ago Ahmed Mohamed — later derisively known as "Clock Boy" — had a run-in with Texas school administrators and law enforcement. Your preconceptions may have driven your reaction. Was he a victim of insipid if-you-see-something-say-something culture, as my preconceptions suggested? Or was he part of a public relations stunt designed to promote a narrative that Muslims are victims of discrimination, as many claimed? Did he make a clock out of electrical components that was mistaken for a bomb by hysterical and foolish people, or did he pile a handful of electronics into a case intending that it provoke, as some have argued? This post isn't likely, or intended, to change your mind on that.

Whatever Ahmed and his family intended before the incident, after the incident they sought to make maximum use of it. That effort included lawsuits against media commentators and local officials. This week, Mohamed Mohamed (the father) and Ahmed Mohamed (the son), who were in my opinion poorly represented, ran headlong into the buzz saw of Texas' vigorous anti-SLAPP statute.

Mohamed Mohamed, acting (with questionable judgment) on behalf of Ahmed Mohamed, filed a civil complaint in Dallas County, Texas naming The Blaze, Glenn Beck, the Center for Security Policy ("CSP"), CSP member Jim Hanson, Fox Television, Fox correspondent Ben Ferguson, commentator Ben Shapiro, and Mayor Beth Van Duyne. The complaint, a painfully disorganized and meandering composition, asserted (ambiguously) libel, asserting that (1) Glenn Beck, Jim Hanson, and Mayor Van Duyne suggested on Beck's show that the Mohamed family staged the incident for PR, (2) Fox 4 News correspondent Ben Ferguson suggested that the incident was planned by Mohamed Mohamed, and (3) Ben Shapiro told Fox News that he thought the incident was a hoax.

Mohamed's complaint vexes me. Not every statement one can utter is protected by the First Amendment; some statements are genuinely defamatory and outside legal protection. Defamation claims — particularly on matters of great public controversy — ought to be made in a clear and effective matter to limn the constitutional and factual issues at play. Mohamed's complaint falls short. It carelessly conflates statements of fact and statements of opinion, fails to articulate precisely what statements of fact are alleged to be false, and seems drafted without any informed thought about how to resist the inevitable anti-SLAPP motion.

The defendants, most of whom were quite well-represented to date, pounced. Fox and Ferguson came first, moving to dismiss under Texas' anti-SLAPP statute. As I've explained before, an anti-SLAPP statute gives defendants a procedural vehicle to ask the court to dismiss a lawsuit aimed at protected speech, and to recover attorney fees if they win. Fox and Ferguson argued that Mohamed had bolixed up the type of defamation they claimed1, that Fox and Ferguson were merely reporting on proceedings by the school district and city and were therefore protected by Texas' reporting privilege, that their repeating of the Mayor's statements was an accurate report of a public official's statement on a matter of public concern and therefore privileged under Texas law, and that Ferguson's commentary was a statement of opinion and rhetorical hyperbole rather than fact and therefore not defamatory.

Fox and Ferguson's motion was comprehensive and supported by facts, evidence, and extensive legal citations. Mohamed's opposition was scattered and perfunctory. It did a very poor job of addressing the crucial distinction between protected opinion and potentially defamatory fact, devoting a few pages of poor argument unsupported by legal authority. So it is not surprising that the court granted Fox and Ferguson's motion in full and awarded more than $80,000 in fees to Fox and Ferguson.

Blaze and Beck, through one set of lawyers, and CSP and Hanson, through another, also filed anti-SLAPP motions — motions too vast to host here. Their core argument throughout was that their challenged statements were opinion, commentary, and hyperbole, not potentially defamatory statements of fact — and they were substantially aided in those arguments by the very language of Mohamed's complaint. Mohamed attempted to fix this problem by filing an amended complaint. But the amended complaint mostly served to emphasize the rough-and-tumble cable-tv-hyperbole nature of the defendants' commentary, and to add references to mostly anonymous trolls who reacted with (arguably factual) accusations to the controversy. Mohamed's amended complaint also undermines itself by arguing how Beck's and CSP's statements should be understood as an accusation of involvement in terrorism, which merely serves to emphasize the statements' hyperbolic and opinion-based nature. Mohamed's single brief in opposition to both anti-SLAPP motions is, once again, woefully inadequate to the task. It utterly failed to engage the crucial distinction between fact and opinion — the heart of the case — and offered no useful authorities nor persuasive arguments on that point.

This week, after a length hearing, the court granted both motions. According to a triumphant press release by CSP's attorneys, the trial court pressed Mohammed's lawyers for specific false factual statements without result. I've seen no transcript, but that would be consistent with the poor quality of the papers. The court has now issued orders granting the motions and invited these defendants to submit affidavits documenting their attorney fees for recovery. I'm going to estimate that those fees from these defendants will total between $200,000 and $300,000. Mohamed's only consolation is that the court refused to make the findings necessary to pile separate monetary sanctions on top of the attorney fees.

Ben Shapiro has an anti-SLAPP motion scheduled for hearing at the end of the month. The motion argues forcefully and effectively that Shapiro's commentary was also opinion, not fact. His argument is, if anything, stronger than that of the other defendants, and I'd say his chances of prevailing are excellent. Mayor Van Duyne also has a motion pending. The motion — filed by a City Attorney — is dramatically less thorough than that filed by the other defendants, possibly to her peril, but she may benefit from the collective impact of the other motions, even though some of her statements are more susceptible to interpretation as factual claims.

Out of all of the sound and fury, this case mostly turned on one of the legal issues most familiar to Popehat readers — the distinction between statements of fact (potentially defamatory) and hyperbole and opinion (not potentially defamatory unless they imply false facts). Whether or not the commentary about the Mohamed family was fair or decent or rational, it was patently opinion based on reported facts about an issue of public interest, and therefore protected by the First Amendment.

Mohamed has been utterly crushed by the Texas anti-SLAPP statute. This is the right result; his frivolous lawsuit was a classic SLAPP, calculated to harass detractors, garner publicity, and wage political war through other means. Though he could have been much better represented, the result would likely have been the same, and should have been. This observation is not an endorsement of political or religious triumphalism accompanying this result.

In a Crowded Field, University of Oregon Distinguishes Itself At Unprincipled and Lawless Censorship

by 42 Comments

The University of Oregon, a public institution, does not see itself as meaningfully bound by the First Amendment to the United States Constitution, nor by any civic obligation to offer a minimally rational or persuasive explanation for why it is not bound. That cavalier attitude specially applies to the School of Law, an academy nominally devoted to teaching about the rule of law.

This is disappointing, if not particularly surprising.

Our story begins on Halloween, with blackface. College of Law Professor Nancy Shurtz wore a blackface as part of a costume at a party at her home to which students were invited. She wore it with a doctor's coat. She intended it as a reference to Damon Tweedy's book Black Man in a White Coat: A Doctor's Reflections on Race and Medicine, in which Dr. Tweedy discusses his experience becoming a doctor. Professor Shurtz intended to comment on discrimination and race in America, and even carried the book as part of her costume for part of the evening.

Many have argued that Professor Schurtz was mistaken about whether blackface — even blackface in the service of a condemnation of racism — is ever socially acceptable. That's a philosophical argument. Factually, Professor Schurtz was absolutely mistaken about the sort of community of which she was a member, and whether her academic interlocutors cared about her intent, her good faith, or the value of her right to express herself in her own home. She was unspeakably naive.

As Eugene Volokh describes, the University of Oregon suspended Professor Shurtz, disciplining her for "harassment." In its report, the University gestured at the correct legal standard for actionable harassment:

Discriminatory Harassment is defined by University policy as conduct that either in form or operation, unreasonably discriminates among individuals on the basis of race or color; which is sufficiently severe or pervasive that it interferes with work or participation in any University program or activity; which creates an intimidating, hostile, or degrading working or university environment for the individual who is the subject of such conduct; and where the conduct would have such an effect on a reasonable person who is similarly situated.

The University is right, at least, that harassment must be severe and pervasive, and that a reasonable person must find it severe or pervasive, to be actionable. But the wheels fell off the wagon when the University applied this standard to the facts.

Almost every student interviewed reported that they knew the costume was “not okay.”

The University mistook academic social consensus — at least among those who felt safe in answering — for severity, pervasiveness, and reason. As Eugene Volokh points out, the University's explanation suggests that the purely subjective reaction of students and faculty hostile to an idea — including deliberate acts by those listeners — can transform speech into harassment. Quoth the report:

The law school environment has become hostile, with discussions and strong conflicts of opinion taking place within the classrooms and on the law school social media pages. The reactions to the event and the students’ conflicts have required other teachers to take time from lessons to address the Halloween incident. The open discussions in class have also resulted in racial hostility between the students. The lack of understanding by some students, coupled with an existing lack of diversity in the law school student body, has led to minority students feeling further disenfranchised from their classmates and the school. Some students have been missing class, avoiding the law school, and changing their study habits in an attempt to avoid the resulting negative environment. Based on both the reaction and lack of reaction from other faculty and professors, students have also felt a sense of anxiety and mistrust towards professors and faculty beyond just Shurtz, with some students considering and seeking out transfers to other schools. A full list of the range and severity of impacts has been referenced above. We find that this environment was and is intimidating and hostile and has impacted a wide range of students from different backgrounds. It is also apparent, given the unanimous response from the witnesses, that a reasonable person who is similarly situated would have experienced such an effect.

Under the University's logic, students and faculty can decide whether expression is harassment subject to discipline by how they choose to react to it. That's a classic heckler's veto. The University's application of the legal norms governing the free speech rights of public employees is equally deferential to subjective hostility to viewpoints.

This approach to the tension between free expression and harassment law is gravely concerning. But it gets worse.

University of Oregon President and Professor of Law Michael H. Schill has written an indignant public statement defending the University from widespread criticism. The statement promotes confusion and ignorance of free speech legal norms in a way unbecoming to a law professor.

But here is the problem—figuring out when and whether there are legitimate limits on freedom of expression actually is complicated.

This is a classic misdirection. Is application of free speech precedent "complicated?" Arguably. But it's not complicated like judging a sonnet or deciding the meaning of life. It's complicated like, say, removing an appendix. You don't remove an appendix by committee of people who have strong feelings about appendices. You remove it by applying medical authority and training and established practices. This is not 'Nam, there are rules. President Schill is invoking a variation on Trope Four, the "unclear line between" trope, pretending that a legal determination is opaque when it's actually based on established precedent.

In general, it is not acceptable for someone to use her rights to deprive another of her rights. I should not be able to use my speech to deny others of their right to be free from racial or sexual harassment. I can hold—and share—controversial views. But that does not give me the right to harass specific individuals or to speak in any way I wish to, in any place, or any point in time.

Now President Schill is begging the question — assuming for his analysis that wearing a costume in your own home at your own party to express a philosophical opposition to racism is "depriving another of her rights" or harassing someone.

But, when exactly does offending someone turn into proscribed harassment? Only a small number of legal commentators would say that faculty members should be immune from all harassment charges on academic freedom grounds.

Here we see Trope Three, "not all speech is protected," used to distract listeners from the application of established legal precedent to this particular situation.

But even I believe that there are cases when speech or conduct is of relatively minimal value compared to the great harm that it may do to our students—particularly to students who already struggle with isolation and lack of representation. For example, imagine a required class in which a professor repeatedly uses the “N” word for no apparent reason except to elicit a reaction. Could African American students forced to sit through this class have a claim of harassment? I think so. Similarly, imagine a class in which a professor makes repeated, sexually explicit remarks to a student or students for no educational purpose. Free speech principles should not, in my view, prevent the university from taking appropriate actions to make sure these actions stop and do not recur in the future.

This argument — which I call "what if there were a wizard with a nuke" — is just a reductio ad absurdum variation on the "not all speech is protected" trope. Yes, we can imagine speech that would satisfy the legal standard for harassment.

To be sure, the case of Professor Shurtz is not quite as clear-cut. The events took place in her home, not in the classroom. Her stated intention ex post was not to offend, but to draw attention to systemic racism. Still, some of her students felt that they were in a similar situation to students in a classroom being subjected to harassing speech, as they felt pressure to attend and to remain at the event. They felt that they could not leave without jeopardizing their standing in the class, and they also felt that the offensive nature of the blackface was the equivalent of hearing the “N” word. In these circumstances, should the university have ignored the event or should it have taken action proportionate to the offense? What lesson would we be teaching our students if we let the incident end without even an official letter of reprimand? These were the very difficult questions that Provost Coltrane had to grapple with, and I am supportive of the process he used and the fairness he displayed in making his decision.

The problem is the complete abandonment of an objective standard and the uncritical embrace of a subjective standard that yields without question to the heckler's-veto-prone assertion of offense. Under this standard — the one that President Schill defends — whether something is harassment and can be punished, and whether a professor's right to speech is outweighed by some notion of public good, depends entirely on how listeners choose to react. Not all students or faculty are intolerant, censorious martinets. But the loudest ones are, and the University of Oregon has decided to defer to them. The University has decided that the people devoted to the idea that ideas and speech they don't like are harassment should determine which speech should be punished, based on the fervor of their reaction.

Call this what you like, but don't call it law. Don't call it a university.

Popehat's 2016 Censorious Asshat of the Year: The City of Parma Police Department

by 29 Comments

The votes are in! At 1176 votes — an overwhelming 49.49% of all votes cast — Popehat's 2016 Censorious Asshat of the Year is the City of Parma Police Department, which I profiled in April 2016. Congratulations! Sort of.

How did the police of a modest Ohio town beat out luminaries like Donald Trump and the assorted colleges and college students of America? They earned it, friends and neighbors. They didn't just bluster, or threaten suit, or denigrate free speech values. They arrested someone for making fun of them and forced his felony prosecution.

Anthony Novak created a satirical Facebook page full of fake news, derogatory jokes, and clear tells of parody. It had "news items" like these:

The City of Parma Police Department will enact a Pedophile Reform event outside of St. Anthony of Padua Church on 5-1-16 in an attempt to reform pedophiles to normality. We will have multiple learning stations including a “No means no” station filled with puzzles and quizzes. Anyone who passes all of the stations will be removed from the sex offender registry and accepted as an honorary police officer of the Parma Police Department. Have fun out there!

We have forgotten to post that on September 30, 2015 at approximately 10:00 am the Parma Subway Sandwich Shop located at 5890 Broadview Rd. was robbed at knife point. The white male offender got away with a small amount of money and did not harm the clerk. Moments after an unrelated African American woman was seen loitering for over 20 minutes in front of the store despite their no loitering policy. If you have any information regarding this African American womans whereabouts please contact the City of Parma Police Department so that she may be brought to justice. This is the best still photo we have of the offender. Mentor Police and Middleburg Hts. Police have reported similar loitering offenses which may be the same female. The Parma Police Department is seeking assistance identifying the individual in the picture. Please contact Det. Joe Tremble.

Did the Parma Police Department laugh off the joke? Of course not. This is America. In America, we're civilized. We know that the purpose of power is to punish people who mock us, especially if we are law enforcement officials.

No, the Parma PD arrested Novak, had him charged with the felony of "disrupting public services", and forced him to go to trial, where he was promptly acquitted by a jury that did not understand that in America we value deference to armed people with badges more than we value due process or freedom of expression.

Novak has, quite justifiably, sued. You can read his federal civil complaint here. He's sued the City of Parma, Parma's chief prosecutor and "Law Director" Timothy Dobeck, City of Parma PD Lt. Kevin Riley, and City of Parma PD Detective Thomas Connor for various violations of his civil rights.

Novak may prevail against the police officers and the City; it's too soon to tell. However, "Law Director" Timothy Dobeck will likely escape legal consequences for the grueling, retaliatory, terrifying felony prosecution itself.

"First Amendment? Due Process? Integrity? LOL!"

See, in America, under the doctrine of prosecutorial immunity, prosecutors can generally get away with violating your rights, even by prosecuting you for your exercise of your First Amendment right to criticize the government. Novak might get some limited relief against Dobek for his participation in securing search warrants — some courts have upheld claims against prosecutors who get search warrants to retaliate against obviously protected speech, on the theory that drafting and security search warrants is outside the core prosecutorial function — but that's only a small part of Novak's harm.

Parma PD, Connor, Riley, and Dobeck are bad public officials and bad Americans. They deserve our contempt. Please join me in showing it to them.

There's A Pony Born Every Minute

by 32 Comments

Juda Parker
9:23 AM (22 hours ago)

to me
Hi There,

I've been trying to get in touch with somebody in regards to learning about your site's advertising strategy – specifically how you're set up monetizing your site.

My name is Juda and I work for Sovrn Holdings, which is a premium ad exchange that is the 3rd largest in the US, 4th in the world.

I'd love to talk about how you're currently optimizing your ad space and what Sovrn can provide to scale it. Who is the correct person to contact regarding this opportunity?

Best,

Juda Parker

Ken At Popehat
9:28 AM (22 hours ago)

to Juda
Dear Mr. Parker,

Thank you for your inquiry. We have been officing here attempting to brainstorm a monetizing strategy without achieving optimization. We could be optimizing better. We also are interested in adding scales or whatever.

Would we, in working with Sovrn, be able to ask for strategy paradigm initiatives that would direct particular types of advertising to monetize our scaling? We have some specific ideas and needs.

Very truly yours,

Ken

Hey Ken,

Thanks for reaching back out!

Absolutely, our Marketing department has set up multiple resources for publishers like yourself to access and ask strategy initiatives from our experts in the industry on our Sovrn hub: https://www.sovrn.com/hub/

My role as a publisher advocate is to make sure that I closely work with my clients to ensure that we maximizing account optimization and exploring potential growth opportunities.

I would love to schedule a quick call with you to get a better understanding of your current setup and demonstrate how the use of a PA can help you towards your revenue goals.

Would you be available to talk sometime tomorrow?

Please let me know your availability and I look forward to speaking with you soon.

Best,

Juda Parker

Ken At Popehat
7:49 AM (0 minutes ago)

to Juda
Dear Juda,

Thank you for your response!

My role as a blogger advocate is preparing the public for peril.

When I say peril, Juda, I am not talking about entertainment. Modern America confuses peril and amusement. Hence we have popular television programs portraying zombies as suspiciously attractive and employable and entire series of movies suggesting that spider fetishists are "normal" and even heroic as opposed to vulgar and prone to wearing inappropriately tight clothing that distractingly emphasizes their genital region.

I speak of ponies, Juda. Ponies.

Let me pause a moment to allow you to regain your composure. I'm not a monster, Juda.

Yes, we need to monetize. Yes, we need to raise our strategy's initiative to at least +2 so we are not caught flat-footed and left standing around in the surprise round like a drugged stoat. (Yes, stoats stand. Watch a YouTube video, for Christ's sake.) Yes, we need to optimize our account growth potential revenues.

We need to do these things against the ponies, Juda. Not for them. Against them. Against them, to the last of us, to our final breath, though it may cost us everything we hold dear and impact our credit ratings.

Juda, I need you to frame a strategy for us to make money telling people, in an engaging, eye-catching, non-threatening way, that if they do not listen to us right now then ponies will be dancing in their children's precious bodily fluids and viscera in a trice, like those awful people in the fountain at the start of the show where Matthew Perry gradually gained two hundred pounds and went mad.

Ponies spell our doom. Ponies never misspell it. Ponies are the cute, non-threateningly-ethnic, but somehow vaguely unsettling cherubic spelling-bee-winners who never falter, Juda, and the word they are spelling is apocalypse. We need to tell the people. All of them, even Belgians. We need to tell them, Juda, and we need to make money telling them so we can tell more of them, possibly with pop-up advertisements and auto-play videos that are very difficult to close because it is human nature to turn your eyes away from a weeping weal upon our collective soul if you possibly can without clicking madly for ten minutes and shouting obscene gerunds. I'm not talking about the band now because I would watch weeping weals upon them all day, obviously. In fact maybe that can be part of our advertising. "Ponies will kill your grandchildren. And it will be horrible, not like watching Collective Soul be trampled to death, like this. In fact quite the opposite. Do not conflate the two." That's a little wordy but I'm not in advertising, Juda, you are, and I rely upon your skills for the precise nomenclature.

I am most certainly not adverse to optimized monetization of strategic revenue initiatives, Juda, so if you can work this so we both fund our Pony Warning System and make some spending money, that would be most welcome. I have been investigating whether to buy one of those Amazon talking discs that you can yell at but am presently impecunious.

I remain, very faithfully yours,

Ken
www.popehat.com

Criticizing An Adverse Witness — Free Speech or "Retaliation"?

by 23 Comments

If you trash-talk a business and the owner sues you, the legal path is clear. You're protected by the First Amendment, indolent bloggers may write to support you, luminaries like Paul Alan Levy may get all up in your grill, and legislatures may pass laws to protect you.

But what are your rights if you're criminally prosecuted?

William Laurence Stanley of Dallas, Texas is exploring that question.

Stanley's a crook, and a search-engine-optimizer.

In 2014 federal prosecutors charged Stanley with extorting a former SEO client, a financial firm called Generational Equity. According to the when a dispute arose about Stanley's services, he repeatedly threatened to attack GE online unless they paid him money. He pled guilty to extortion and, in his factual allocution, admitted he extorted Generational Equity by threatening to post disparaging things about it on the internet unless it paid money that Stanley claimed was owed by another company acquired by GE. Stanley specifically admitted that he threatened to post fraudulent comments if his victims didn't pay him. A Dallas federal court sentenced him to 37 months in federal prison and ordered him to make restitution in amounts between $100 and $146,000 to a dozen victims, which — together with language in his factual allocution — suggests he extorted a variety of people and companies.

So far, this is straightforward. Extortion is not protected by the First Amendment.

But Stanley wasn't done, and this is where it gets trickier.

According to federal authorities, in September 2016 Stanley retaliated against Generational Equity for being a witness against him by posting false and derogatory comments about it online. According to the new federal complaint, Stanley (who was serving the tail end of his sentence in a halfway house and on home confinement at his daughter's house at the time) began trash-talking Generational Equity online through various posts and blogs he created, and employing SEO techniques to promote those comments.

Stanley is charged under 18 USC 1513(e), which provides:

Whoever knowingly, with the intent to retaliate, takes any action harmful to any person, including interference with the lawful employment or livelihood of any person, for providing to a law enforcement officer any truthful information relating to the commission or possible commission of any Federal offense, shall be fined under this title or imprisoned not more than 10 years, or both.

William Stanley argues that he's being prosecuted for his speech, and that the First Amendment protects his actions. Is he right?

It's complicated.

With all respect to Scott Greenfield, who wrote about this story already, I think that this particular prosecution does not violate the First Amendment. That's because Dallas federal prosecutors have cleverly avoided the First Amendment issue by taking on a heavier burden of proof than the statute requires. In the indictment, they charge that Stanley retaliated against GE by posting false and derogatory comments about it. By specifying that Stanley's assertions were false and derrogatory, the government has probably evaded the constitutional issue. This is an old prosecutor's trick — rendering constitutional problems with a statute moot by pleading around them and pretending that the stature requires you to prove more than it actually does.

But does the statute, Section 1513(e), require that? Could you commit a federal crime by intentionally trash-talking a federal witness against you, even if you only offered opinions or true facts? Rather alarmingly, that's not as clear. There are relatively few cases construing Section 1513(e) and many of those punt on the constitutional issue.

Take United States v. Sergentakis, 2015 WL 3763988 (SD NY 2015), in which a former employee of a charity was jailed for a kickback scheme. While in prison he wrote letters making wild allegations of child abuse against the charity's officers, and when he was released he created web sites making similar claims. When he was prosecuted under Section 1513(e), he brought a First Amendment defense. The district court rejected it under the doctrine that speech integral to criminal conduct is not protected by the First Amendment. This doctrine is typically invoked to explain why extortion, words used to form a conspiracy, etc. are not protected speech. In this context I find it unsatisfactorily circular — the speech is integral to criminal conduct because the government has defined bad-mouthing witnesses as criminal conduct. The court also found that the defendant's conduct was outside the First Amendment because Sergentakis' statements were defamatory — that is, provably false statements of fact, which are outside First Amendment protection. That part of the holding supports the government's appproach in the Stanley indictment.

In United States v. Camick, 796 F.3d 1206 (10th Cir. 2015), the court found that the filing of a nonmeritorious civil rights complaint against the witness could violate the statute, completely avoiding the First Amendment implications of criminalizing the act of petitioning the government. The fact that another court found that the civil rights complaint lacked merit might offer a limitation on use of the statute.

In United States v. Nursey, 2015 WL 7074570 (MD AL 2015), the defendant created fliers accusing a federal witness of being a child molester and distributed them at the witness' church. The defendant, charged under Section 1513(e), challenged the prosecution on First Amendment grounds. Nursey made an overbreadth challenge — that is, he argued that even if the statute could be constitutionally applied to him, it also swept up behavior protected by the First Amendment. He speculated, for instance, that a husband could violate the statute by divorcing his wife who provided information about him. Applying the traditional test for such challenges — that a defendant may only challenge a statute for overbreadth if a substantial number of its applications to other people are unconstitutional — the court rejected the challenge. Once again, the court did not confront the problem of what would happen if a defendant were prosecuted for truthful speech or opinion about a witness.

In short, authority on Section 1513(e) suggests that the government may constitutionally punish you for saying false things to retaliate against a federal witness against you. But here's where it gets cloudier — can the government punish you for saying true things, or opinions, in an effort to retaliate against a witness? Say the government gives a sweet deal and preferential treatment to a cooperating witness against me. Put another way, say the government uncritically believes and rewards a rat. Is it a federal crime for me to blog about how the rat was more culpable than me, but was unfairly treated in a preferential fashion because he was willing to cooperate? Is it a federal crime for me to point out, truthfully, the bad things the rat did? Is it a federal crime to describe my opinion that the rat has poor character? Is it a federal crime for me to tell potentially employers — truthfully — the reasons I think the rat is not trustworthy?

The government may suggest those things are crimes under the "speech integral to criminal conduct" doctrine, and they may find some support for the proposition. I think that's clearly wrong — the government shouldn't be able to beg the question by criminalizing speech and then saying the speech is now inherent in criminal conduct. Stanley's case is fairly straightforward — he admitted before to extorting victims by demanding money and threatening to make false statements about them, and now the government has undertaken the burden (whether or not the courts would impose it on them) of proving that he published false statements to harm a witness. Other applications, though, may be problematical.

DC Appellate Court Hands Michael Mann A Partial Victory On Climate Change Libel Case

by 100 Comments

More than four years ago climate scientist Michael Mann sued the National Review, Mark Steyn, the Competitive Enterprise Institute, and Rand Simberg for defamation and intentional infliction of emotional distress, complaining that they wrongfully suggested he used fraudulent methods in framing his much-discussed "hockey stick graph" purporting to show an increase in global warming. Mann was infuriated by vivid rhetoric that portrayed him as a molester of data and compared the investigations that cleared him to Penn State's insincere investigations of child molestation.

After a trial court in the District of Columbia denied the defendants' anti-SLAPP motion, the case headed to the DC Court of Appeals (not to be confused with the United States Court of Appeals for the DC Circuit) — where it languished for more than two years after argument, which makes one rather more sympathetic to Mark Steyn's position that waiting for an appeal is foolish.

Now the DC Court of Appeal has ruled, handing Michael Mann a partial victory and partial defeat. The decision is here. It's gotten a lot of press. But it's complicated. What does it mean, and is it bad or good?

Let's break it down.

The right to an immediate appeal: The defendants won, and Mann lost, the first issue, which was a boring (to most people) procedural one: if you file an anti-SLAPP motion under DC's anti-SLAPP statute, and the trial court denies it, can you appeal immediately, or do you have to wait until the end of the case? The Court of Appeals, following the majority of anti-SLAPP statutes in America, decided that you can appeal immediately. Does that sound dull? It's not. It's actually incredibly important.

As I have described before, the point of anti-SLAPP statutes is to provide a relatively inexpensive, relatively early remedy for meritless lawsuits designed to chill protected speech. Sometimes judges get things wrong, and sometimes judges wrongly deny anti-SLAPP motions. If you can't appeal immediately, then the anti-SLAPP motion is rendered pointless — the defendant has to wait until the end of the case, when either (1) the defendant wins on the merits, making the anti-SLAPP motion irrelevant, or (2) the defendant has lost, so that the heart of the appeal is actually the merits of the case, not the anti-SLAPP motion. Either way, the defendant has been forced to incur the full expense and inconvenience of litigation. By contrast, the right of an immediate appeal protects the defendant, staying the trial court case while a court of appeal reviews the anti-SLAPP motion. Practically, this means that any defendant can delay a case targeting speech for years. The only disincentive to do so is the fact that most anti-SLAPP statutes allow courts to award attorney fees when an anti-SLAPP motion is frivolous. This means that plaintiffs know that if they bring a marginal case it will take years to proceed with it. It's a powerful barrier to filing weak cases against speech.

Now, here the appeal took years, including a two-year delay after oral argument, strongly supporting arguments that justice delayed is justice denied. In fairness to Mark Steyn, I was probably too dismissive of his view that the appellate delay was pointless (though I remain convinced that his cross-complaint is silly and counter-productive). But the decision is important — it means that defendants can still employ the DC anti-SLAPP statute to resist censorious lawsuits even if the trial judge makes a bad call. Though Mark Steyn may itch for an immediate trial, most people can't possibly afford one.

This part of the decision is unremarkable.

The standard of proof for the plaintiff: The DC Circuit also reached an important, but also impenetrable-to-most, decision about a plaintiff's burden of proof in resisting an anti-SLAPP motion. Mann won, and the defendants lost, this issue, although the outcome was by far the most likely one.

Almost all anti-SLAPP statutes use a two-step process for anti-SLAPP motions. In step one, the defendant — the one filing the anti-SLAPP motion — has the burden of showing that the lawsuit is targeting some speech covered by the statute. Anti-SLAPP statutes don't protect speech that's not already protected — that is, they don't immunize any speech that's not already immunized by the First Amendment or state statute. They simply provide a procedural vehicle to invoke those protections — a way to say "judge, you should dismiss this case because it's protected under the First Amendment." The anti-SLAPP statute is the syringe, not the vaccine. But different anti-SLAPP statutes cover different things — that is, they allow a defendant to make that motion in different circumstances. In some states — California and Texas, notably — the anti-SLAPP statutes are very broad and allow the defendant to make the motion whenever the speech is protected by the First Amendment or any statute. In other states the anti-SLAPP statutes are much narrower — they may only allow the defendant to make the motion when, for instance, the lawsuit targets someone petitioning the government. Whatever the statute covers, the defendant has the initial burden in step one of showing that the lawsuit falls into that category.

If the defendant makes that showing, in step two the burden shifts to the plaintiff to show that they can win the case. If they can't make that showing, the defendant wins the motion; if they can, the plaintiff wins the motion. But what does it mean to say that "they can win the case" — or to use the statutory language, show they have a "probability of prevailing?"

The DC Circuit adopted the standard that the vast majority of states use for their anti-SLAPP statutes — the plaintiff only has to produce admissible evidence which, if accepted, is legally sufficient to win. That's the same standard courts apply to motions for summary judgment — motions in which the defendant argues that there's not enough evidence for the case to go to a jury. Practically that means that if the complaint is bogus as a matter of law (for instance, if it targets speech that is clearly just hyperbole or opinion), or if the plaintiff has no evidence to support it, the defendant wins — but if the complaint is legally plausible, and the plaintiff has any evidence to support it, the plaintiff wins. The bottom line is that it doesn't put the trial court in the position of evaluating witness credibility – it just inquires whether there are any witnesses.

A very few statutes require trial courts to engage in some sort of evidence-weighing to see if a plaintiff will prevail — that is, they ask the court to evaluate not just whether evidence is legally sufficient, but convincing. By choosing the "legally sufficient" standard, the DC Court of Appeals just followed the vast majority of courts. That makes it a bit easier for plaintiffs to survive an anti-SLAPP motion.

This part of the decision is also unremarkable.

Intentional Infliction of Emotional Distress: The defendants won this issue and Mann lost.

Mann claimed that some defendants inflicted emotional distress upon him by calling him the "Jerry Sandusky of climate science" — a molester of data rather than of children. In DC that requires a plaintiff to show (1) extreme and outrageous conduct done (2) intentionally or recklessly that (3) causes severe emotional distress. Here the court said that even if the rhetorical comparison was extreme and outrageous — it declined to say whether it was — Mann did not present sufficient evidence of severe emotional distress to support the tort. In other words, even under the relaxed requirement that Mann only offer evidence that was legally sufficient if believed, he didn't. So the Court of Appeals concluded that the trial court should have granted the anti-SLAPP motion as to that cause of action. (Many, though not all, anti-SLAPP statutes let a defendant target individual causes of action rather than an entire complaint.)

This part of the decision is also unremarkable.

Rich Lowry's National Review Article: In August 2012, Rich Lowry wrote an article for National Review ridiculing Mann's threats to file a defamation claim. The DC Court of Appeal found that the trial court should have granted the anti-SLAPP motion to dismiss as to this article. The court's clearly right.

Lowry's article linked to the Stein and CEI articles in the course of discussing Mann's complaints and legal threats about them, described Mann's complains as laughable bluster, criticized Mann as a censor, and asserted that the term "fraudulent" is best understood as an argument and opinion rather than a statement of provable fact. All of that is patently protected under the First Amendment as opinion. Lowry's article was not drafted to endorse or adopt Steyn's or CEI's characterizations of Mann or his work, and didn't even repeat the key passages Mann focuses upon. Only false statements of provable fact — or opinions that imply false statements of provable fact — can be defamatory. These weren't. The point is so clear that the DC Court of Appeal noted that Lowry and National Review didn't even need the anti-SLAPP statute; they could have relied upon a standard motion to dismiss based on Mann's quotations of the article in his complaint.

This part of the decision is also unremarkable.

Steyn's and CEI's Articles: The DC Court of Appeal held that the trial court was correct to deny the anti-SLAPP motion by Steyn, CEI, and Simberg. Mann won, and Steyn, CEI, and Simberg lost, that part of the appeal. The result is notable and, for several reasons, concerning.

There are two key elements to this part of the decision: the distinction between opinion and fact, and the question of what constitutes proof of malice.

Once again, only false statements of provable fact may be defamatory. Opinions, arguments, and hyperbole may not unless they imply false provable facts. "Ken is a jerk" can't be defamatory because it's not objectively provable; "I hacked Ken's email and he's a crook" might conceivably be defamatory because it could imply false facts.

Here, both Steyn's and Simberg's articles were replete with hyperbole, rather strongly signalling opinion. Moreover, they both disclosed the facts that they were relying upon — the hockey stick that another scientist [edited to correct: not Mann] called a "trick" to "hide a decline." I think — like others — that the better and more reasonable interpretation of these writings is that Steyn and Simberg were offering overt argument and opinion based on disclosed facts. You might disagree with the fairness of their conclusions — for instance, you might accept Mann's explanation of what the other scientist [edited: not Mann]meant by "trick," or believe that it's unreasonable not to agree with academic institutions that exonerated Mann — but conclusions based on data aren't defamatory even if they are unfair or unreasonable. That's classic protected speech.

The DC Court of Appeals, however, focused on a lack of overt signals like "in my view" or "in my opinion" or "I think" — silly formalism, in my view, but a pointer to practitioners of how one can manage libel risks. The court also focused on the fact that calling something "fraudulent" or "data manipulation" could possibly be interpreted as a statement of provable fact. The problem with this argument, I think, is that it is very selective about what context it considers. Steyn and Simberg are overtly operating in the context of a scientific culture in which someone has talked about a "trick" in presenting data in support of an argument to "hide" an inconvenient fact. That is the underlying fact framing their opinion. The fact is undisputed even if the interpretation of it is not. Their use of vivid and argumentative language helps establish that they are drawing conclusions, not asserting new (and unspecified) facts.

It's important to understand what the Court of Appeals found, though. It didn't find that Steyn's and Simberg's articles stated facts, let alone false ones. It simply found that Mann presented evidence that, if believed, could allow a jury to conclude that the articles stated facts rather than opinions. The court found he created an arguable issue, in other words. I don't agree, but that's much different than deciding that the articles were factual rather than opinion.

Next, the Court of Appeals found that Mann had presented evidence that was legally sufficient to show that Steyn and Simberg acted with malice. Malice, in this context, doesn't mean ill will — it means with knowledge that statements were false or recklessness about whether or not they were false. Mann has to meet that standard because he's a public figure — only false statements about him made with malice are defamatory. The court found that Mann had presented evidence of widely circulated studies and findings exonerating him, and that the existence of those studies could be accepted by a jury as adequate proof of knowledge that the factual allegations were false.

I think the Court's decision here was, at a minimum, badly framed. The entire point of Steyn's and Simberg's posts was quis custodiet ipsos custodes — that the scientific and academic community's policing of alleged wrongdoing by its own is incredible and unreliable when it is defending ideologically cherished consensus. That criticism is clear from their posts — it's an argument that we can't and shouldn't trust this sort of self-exoneration when it is driven, at least in part, by powerful political motives. The Court's portrayal of the "investigations" and "studies" exonerating Mann seems to wander oddly from dispassionate examination of evidence to eager and almost fawning appeal to authority. The logic is also troubling. The redoubtable Jonathan Adler suggested an apt analogy. Consider George Zimmerman's fatal shooting of Trayvon Martin. A jury acquitted Zimmerman. Imagine I say "George Zimmerman murdered Trayvon Martin." Under traditional First Amendment analysis that would be an obvious statement of political opinion based on the highly publicized facts of the case. Under this Court's analysis, and its stingy treatment of protected opinion, I'm concerned it could be taken as a statement of fact — and that the jury's verdict could be taken as adequate proof that I spoke maliciously, because I should have yielded to the jury's evaluation of the facts rather than assert my own.

Once again, the Court of Appeals only spoke of what a jury could find, not what it must find. But — even adjusting for my bias against defamation claims, against Mann's claims in particular, and in favor of protected speech — I found the Court's discussion disturbingly deferential to Mann's defenders in a way that I think undermines dissent.

In short, this part of the decision was notable.

So. The procedural arguments split one for the defendants and one for Mann, both in predictable ways. Mann lost a substantive argument — the easy one — and won two in ways that are reasons for concern. Next, discovery in the trial court. That will be interesting.

Who Will Be Popehat's Censorious Asshat Of 2016?

by 69 Comments

With 2016 safely behind us, it's time for Popehat's annual Censorious Asshat of the Year contest!

As always, only asshats we have written about are eligible. Candidates have been narrowed down through a process involving ennui, psychological trauma, and misanthropy.

It's a rather weak lot this year, heavy on bluster and light on actual censoriousness:

Donald Trump: Our President-Elect promised (perhaps without a basis in fact) to "open up" libel laws to make it easier to sue, called for prosecution of flag-burners, talked a lot about suing press critics, promised to sue women who accused him of sexual assault, sends stupid libel threats written by rhetorically incontinent lawyers, and brags about using bogus libel suits to harass. meanwhile, he styles himself as the foe of "political correctness." In aggravation: As omnipresent media figure and now leader of the free world, a horrifically bad role model for respect for free speech legal norms, and a powerful promoter of civic ignorance. Also, may cause our impoverishment, internment, or evaporation in a fit of fluffy pique. In mitigation: Blusters much, much more often than he bites, himself the subject of many false and censorious arguments, more about feelings than about legal norms.

Twitter: By haphazardly banning people, many of whom could be construed as "conservative" if you really don't like conservatives, Twitter has set free speech brother against brother in an argument about what "free speech values" means and how to address private entities being awful biased censors (if you listen to some people) or exercising their own free speech and freedom of association by banning assholes (if you listen to me). In mitigation:Briefly induced James Woods to flounce off of Twitter by being mean to white nationalists, best seen as just exercising their own rights to run the sort of private-owned forum they want. Will probably win this poll thanks to greasy gravel-knuckled Redditors even though manifestly not qualified, thus offering object lesson in uselessness of online polls. In aggravation: Utterly incompetent at articulating a coherent position on free speech that promotes understanding of speech norms. Having labeled themselves as a free speech platform, too dumb or scared to clarify what that means. Unwilling to say "we are a private entity and have a free speech and free association right not to house Nazis and assorted douchebags," instead mouthing platitudes and vagaries about harassment and hate speech and safety, and applying the banhammer in an arbitrary and capricious manner that mostly sucks up to famous people.

University of Wisconsin – Superior: Investigated a student newspaper for an April Fool's edition that "crossed a line," saying "satire is fine, having a difference of opinion is fine, but disrespectful and offensive language is not fine." In aggravation: Responded meekly to student thuggery by launching an inquisition. In mitigation: As modern college administrators, unfamiliar with fundamental civic values of free speech or due process. Check your privilege!

Northern Michigan University: Threatened students with discipline if they shared their suicidal or self-destructive thoughts with peers, then were slow and snotty about walking it back. In mitigation: Announced they had dropped the policy. In aggravation: Thoroughly evil, nobody was fired or will be fired or summarily shot.

City of Parma Police Department: Investigated, and forced felony prosecution of, man who created satirical Facebook page mocking them. In aggravation: Actually had a dude prosecuted criminally — for a felony — for a satirical Facebook page on a theory that the satire "disrupted public services." The jury acquitted him. In mitigation: So obscure that I completely forgot I had made fun of them. Managed entire investigation and prosecution without shooting any unarmed black men in the back.

State of California Attorney General and State Fair Officials: California, saddled with a new law banning the state from displaying or selling Confederate flags, decided to ban an artist's civil war painting from a state fair open-to-the-public art exhibition because it depicted a Confederate flag. In aggravation: AYFKM? In mitigation: To be fair the California Department of Agriculture has limited First Amendment litigation experience.

Patrick Zarelli: A self-described "legal marketing" expert who looks like he showed up late for the casting call for a Weekend at Bernie's reboot because he couldn't find his flip-flops, Zarelli issued a series of cinematic and imbecilic legal threats to lawbloggers who had written about his alleged "client," Florida technically-a-lawyer Gary Ostrow. Eventually, to the best of my understanding, he threatened me, including a promise to put his responses in an "organized and sweeping manor," which I assume refers to the weekly-residence motel where he lives. It has an ice maker! In aggravation: You call this a hate site? This is fucking pathetic, Patrick. It's just flames and flame noises. Show some effort. This is just insulting. In mitigation: His mopery is kind of endearing in a Kato Kaelin sort of way.

Milroad Trkulja and his lawyer Stuart Gibson: Trkulja, perhaps rendered bitter and unreasonable by a tragic vowel deficiency, sued Google because searches for his name turned up pictures of an underworld figure. Then, enlisting Australian lawyer Stuart Gibson, he threatened to sue TechDirt for calling him the sort of gangster who uses courts rather than guns. In aggravation: Threatened to sue for calling him a "ridiculous litigant." In mitigation: Australian.

Damn College Kids On Ken's Lawn: Whined that criticizing their speech was censorious. Mewled that criticizing their censoriousness was mean. Generally blundered around trying to the best of their smug semi-literate ability to censor things. In aggravation: Young, healthy, vibrant, with their entire lives before them stretched hopeful and with shining promise, completely fucking insufferable. In mitigation: Never taught any better. Currently too occupied with therapy kittens and soothing adult coloring books to pose much of a censorship threat.

Cracked Often funny, and sometimes a source for serious and insightful social commentary, Cracked is routinely absolutely awful at writing about free speech issues, spreading ignorance and misinformation that arguably encourages censorship. In mitigation: Just spreads stupid censorship memes, doesn't try to apply them itself. Possibly not an institution we should look to for reliable free speech information given its primary focus of photoshopping dildos onto things. In aggravation: Actually these days we do need to look for reliable free speech information even from institutions that photoshop dildos onto things.

Jeff Jarvis: Cried "halp, lawyer!" when subjected to obvious satire. In aggravation: Encouraged indignant loudness amongst silly people. In mitigation: Nobody cares.

Vote! Voting ends Friday at noon my time.

This poll is closed!
Poll activity:
Start date 03-01-2017 10:52:42
End date 06-01-2017 12:00:00

Poll Results:

Who is Popehat's Censorious Asshat of the Year for 2016?

Breaking: Very Stupid Idea Arises From Florida

by 99 Comments

A government lawyer in Florida would like courts to impose community service and forced speech on you if you're unpleasant, and a prominent Florida newspaper is taking it seriously. Wait. Taking it "seriously." No. "Taking it seriously." Shit. "Writing about it without open ridicule." There.

The government lawyer is one Mikki Canton, "chief strategic adviser and global affairs counsel" to Miami Mayor Tomás Regalado and manager of a government program that encourages foreign investment through immigration. Apparently recent incidents like a rude (and crazy) Trump-voting Starbucks customer inspired Ms. Canton to suggest that the government punish rude speech:

Besides mentioning that basic civility guidelines could be drawn up, Canton also spoke of establishing “civility courts” that would be empowered to hand down noncriminal punishments like community work.

“I had talked to the judges about getting civility courts,” Canton said. “Sometimes what you do doesn’t rise to the level of breaking the law, but it sure does break civility rules.”

Asked what types of punishment she envisioned, Canton provided a specific example.

“Making them do some community outreach work, where they actually get a chance to interact with people and be civil,” she said. “If I were the judge I’d say, ‘What was it?’ and ‘Where did he commit this offense that didn’t rise to the level of breaking the law,’ and I would put him out there and make him be the spokesperson and make him work some community hours.”

At the risk of being sentenced to community service in Florida, I must inform you that Mikki Canton is an unserious imbecile and that the Miami Herald is guilty of shoddy post-factual journalism for running a story about her proposal without any critique whatsoever. As the As the Miami New Times' vastly more professional story suggests, Canton's proposal is a legal travesty. Rude and uncivil speech is protected by the First Amendment. Only a narrow range of speech falling into specific historically established exceptions can be punished. The state cannot get around the First Amendment by imposing only community service and "spokesperson" duty; if the state imposes any forcible consequence for speech, it must meet First Amendment limits.

I'm not a fan of lunatics shouting at barristas about Donald Trump. But honestly, I am far more offended by lawyers — especially government lawyers — promoting civic illiteracy by proposing patently unconstitutional policies. Lies are not polite, and Mikki Canton is lying about what the state is allowed to do to its citizens when it doesn't like what they say. Civility is nice, but civics — the adherence to core ideas about the rule of law — is nicer.

Ms. Canton, with all due respect, and without any intent to cause offense, and with sincere hope that it will not disquiet you, kindly fuck off until you've read the Bill of Rights.

The Prenda Saga Goes Criminal: Steele and Hansmeier Indicted On Federal Charges (Updated)

by 167 Comments

This is the latest post in the Prenda Law saga.

More than three and a half years ago I started covering a copyright-troll firm called Prenda Law, which came to my attention because it was filing defamation suits against critics accusing it of wrongdoing. Rarely does the Streisand Effect so utterly annihilate a group of censorious miscreants.

Over the last three years, Prenda Law and its principals John Steele and Paul Hansmeier have met with ruin at the hands of federal courts across the country. Their scheme — to upload porn, track people downloading it from torrent sites, then engage in fraudulent and extortionate litigation against the downloaders — has been exposed. The story has involved spectacles like lawyers taking the Fifth rather than answer a judge's questions about their lawsuits, devastating sanctions orders quoting Star Trek and referring lawyers for federal criminal investigation, withering fire from federal appellate courts, and generally every bad thing that can happen to a lawyer happening to the bad men behind this case.

When people have asked me why these lawyers aren't in jail, I've answered that the wheels turn slowly.

But they turn.

Today federal agents arrested John Steele and Paul Hansmeier, the two lawyers most responsible for this nationwide debacle. They were arrested on a federal indictment brought by the U.S. Attorney for the District of Minnesota. An indictment is an accusation, not proof: it only signifies that the U.S. Attorney has persuaded a grand jury that there is probable cause, which is not one of the more difficult challenges anyone ever faced. But a federal indictment is a very grave development for any defendant. The feds' competitive advantage is their ability to pick and choose cases, to develop evidence and witnesses painstakingly over time, and to bring their case only after they've amassed what they see as overwhelming odds in their favor.

The indictment (courtesy of Fight Copyright Trolls) is here. Let's discuss it, shall we?

The indictment charges Hansmeier and Steele with a raft of federal crimes: conspiracy to commit mail and wire fraud, mail fraud, wire fraud, money laundering, and conspiracy to suborn perjury in federal court. As usual, if you count up the statutory maximum sentence for all of these crimes, you get a ridiculous number that bears no relation to the probable sentences they face if convicted. However, given the amounts discussed in the indictment, they are facing years in federal prison.

Having covered this story for almost four years, what's remarkable to me is how comprehensive the federal indictment is. It covers almost every sort of misconduct any judge or commentator has accused Steele and Hansmeier of committing in substantial detail. It therefore serves to demonstrate how broad and flexible federal criminal law is — how it can be brought to bear against a wide variety of conduct.

The story, as the indictment tells it, is this: Steele and Hansmeier used various entities, including Prenda Law, to commit fraud. The indictment mentions many entities familiar to followers of this story — AF Holdings, Ingenuity 13, Guava LLC, and so forth. These entities would appear in copyright cases as the nominal plaintiffs, but the indictment alleges they were actually owned and controlled entirely by Steele and Hansmeier to conduct their fraudulent scheme. According to the feds, Steele and Hansmeier uploaded their "clients'" pornographic movies to file-sharing websites intending to lure people into downloading them, then sued the people who downloaded for copyright infringement, concealing their role in uploading the movies. They used what the feds describe as "extortionate tactics" to coerce quick settlements, and dismissed cases when defendants fought back rather than risk discovery. When federal courts began limiting the number of people they could sue at once for porn copyright infringement, they changed tactics and began to file suits falsely asserting that their clients had been "hacked" and then using those allegations as a basis to subpoena ISPs for subscriber information. Eventually Steele and Hansmeier filmed their own porn to upload to support this scheme. When courts began to get suspicious, the indictment alleges that Steele and Hansmeier sent underlings to lie to courts, or even lied to courts themselves, to conceal the scheme. The indictment specifies 14 separate instances of perjury or lying to courts. This scheme, the feds claim, netted more than $6,000,000 in copyright settlements, of which $3,000,000 went to Steele and Hansmeier and only $1,000,000 went to sham "clients," with the rest consumed for expenses.

The feds apply these facts to the law deftly. They describe the entire thing as a conspiracy to defraud, which forms the first (and most flexible) count in the indictment. The indictment offers five counts of mail fraud tied to five settlement demand letters sent by the schemers. It offers 11 counts of wire fraud tied to uploadings of porn to file sharing site and processing of checks. That's the way mail and wire fraud works — every mailing or wire communication resulting from the scheme can be a separate count. The feds frame their conspiracy to commit money laundering charge on the theory that Steele and Hansmeier engaged in transactions (probably with the sham companies) designed to conceal that the money came from mail fraud and wire fraud. The conspiracy to commit perjury count is based on the theory that they agreed to send people across the country to lie to courts to protect their scheme. The indictment also seeks forfeiture of ill-gotten gains.

This is a devastating indictment. Its scope will make it extremely expensive and difficult to defend. The detail level suggests that the feds have amassed a vast amount of documentary evidence. Its reference to Prenda Law employees with initials like "M.L." and "P.H." strongly suggests that the feds have flipped some former employees, who are now testifying for the government.

Prenda fell years ago. But now doom has come for Steele and Hansmeier. Based on my observations throughout this case, it couldn't happen to more deserving criminals.

Steele and Hansmeier might have continued this scheme for much longer — and might have even gotten away with it — had they not gotten arrogant and vengeful. When criticized, rather than settling and dismissing some suits and moving on (the way practiced con men do), they were incensed, and decided to abuse the legal system even more by blitzing critics with multiple lawsuits. John Steele gleefully threatened opponents and Paul Hansmeier famously sneered at the defamation defendants "welcome to the big leagues." It was those actions that drew much more attention to their cases. Character is destiny. Not only are Steele and Hansmeier wanton crooks, they're spiteful, entitled, arrogant douches. That led to their downfall.

December 19 bail update: Paul Hansmeier made his first appearance in Minnesota District Court and was released on a $100,000 signature bond — that is, he was released on a promise to pay $100,000 if he fails to appear for trial or breaks terms of release.

hansbond

That sounds fairly lenient, but bear in mind that under the Bail Reform Act bond is supposed to be set at the minimum necessary to make sure that the defendant doesn't flee and doesn't pose a danger to the community. White collar dudes — and particularly white white collar dudes — typically get pretty low bail in federal court.

John Steele was arrested in Florida. Here's the way it's supposed to work: if you get arrested on a federal warrant in a different district, you have a right to a hearing at which the feds have to show you're the same dude charged in the other district and that there's probable cause (which can be satisfied by an indictment, like they have here.) Steele — who said he would be representing himself — waived further proceedings, thus agreeing to go to Minnesota to appear, and was released immediately on a $100,000 signature bond and a promise to post an actual $100,000 bond (meaning he'll have to put up $10,0000). Again, that is not atypical.

If Steele represents himself in Minnesota, it will be spectacular.