Posts Tagged ‘First Amendment’
There is not much I can add to the saga of Crystal Cox except for a few dirty puns. The bottom line of this story is that a “blogger” is not always a journalist. Sometimes a “blogger” is just an extortionist. I will relate the story by shamelessly quoting from better legal bloggers.
A good summary, in dramatic form, of how Crystal Cox operates comes to us from Jordan Rushie:
Imagine this…. you Google yourself. To your surprise, a whole bunch of stuff that is blatantly untrue comes up. Being an adult, you call the person who wrote it. This is how the conversation goes down:
“Did you write all that stuff on a website about me?”
“Yup. I’m an investigative blogger journalist!”
“Um, a bunch of the stuff you wrote about me is untrue. Actually all of it is.”
“Oh sure, I know. But I’m a journalist blogger so I can say whatever I want. First Amendment, bitch! But tell you what – I’m also reputation manager. If you pay me $2,500 a month, I’m sure a lot of that untrue stuff would go away.”
“Uhhhhhh… wait a second. You wrote a bunch of stuff that’s untrue about me. And now you’ll only take it down if I pay you?”
“Yup! And if you DON’T pay me it’s going to get worse! I’m going to buy a bunch of domain names that involve you and your family. Not only will I smear your reputation, but I’ll smear theirs, too! I’ll write all kinds of stuff, like call your wife a slut! I’ll even go after your four year old child!”
“No silly, it’s not extortion! It’s journalism! Investigative journalism!”
You’re probably saying to yourself “nah, that couldn’t happen. That’s illegal. A person could get in a lot of trouble for doing something so irresponsible and probably illegal.”
Too bad that’s exactly what Crystal Cox did. Twice now. Maybe more.
Crystal Cox first came to the public’s attention last year, when a judge ruled against her in a defamation suit and ordered her to pay $2.5 million. After some hand-wringing over what this might mean for other bloggers, it eventually became clear that Crystal Cox actually runs an online, reputation-based protection racket. That is many things, but it ain’t journalism.
At the heart of the current kerfuffle is first amendment bad-ass Marc Randazza (Full disclosure: he’s my lawyer in this thing I’ve got going on. That’s how I know he is a bad-ass.) When Crystal Cox did not get what she wanted from Marc Randazza, she went after him by registering dopey domain names like marcrandazzasucks.com. When that didn’t work, she went after his family, registering domains in the name of his wife and three-year-old daughter.
This is not a valiant warrior fighting the forces of darkness to defend freedom of speech. While it may be true that the front-line warriors for free speech (and I mean the speakers themselves, not their attorneys), are often ultimately fighting to clear the way for people who actually have something useful to say, Crystal Cox doesn’t even fit that description. She is not a reporter, journalist, or even the kind of blogger who just regurgitates other people’s news in a restated format (something about which I know a thing or two.) She is not a blogger in any meaningful, useful, constructive sense. She is a thug, nothing more, as court documents and her own statements and actions amply demonstrate.
Trying to shut her down is not necessarily the answer, though. In some ways, it is helpful to know that people like her are out there. As Marc Randazza says: “Sunshine is the best disinfectant. The cure for bad speech is more speech.”
Consider this my ray of sunshine.
Photo credit: Redwood sunlight by NPS Photo [Public domain], via Wikimedia Commons.
I’m not about to go into some long-winded thesis on legal theory, but I have always found the question of “positive” versus “negative” rights very interesting. Put very simply, negative rights involve the right of freedom from interference in something, e.g. freedom of speech or religion, which really means the right to speak or practice without undue government interference. Positive rights are a tougher nut to crack. These are entitlements to some service, and they are not as easily asserted or enforced.
This is also not to be confused with legal positivism, which is a different concept that you should read about on your own.
Frank Pasquale has a post at Concurring Opinions where he addresses theories of positive rights as they pertain to health care and internet access. Interesting stuff around which I am still trying to wrap my head.
The case of Jessica Ahlquist, who bravely stood up against an entire town to defend the Constitution, has been a model of good citizenship (on Ahlquist’s part, at least). Many, many other people have not behaved in much of an honorable manner. Now we have her duly elected state representative, Peter Palumbo, playing to his baser political instincts (via JT Eberhard):
Peter G. Palumbo, the Democrat in the RI House from the Cranston district, has no rebukes for the Jesus-loving liars, bullies, or thugs. He has nothing negative to say about the people who felt they were above the Constitution and lied to subvert it. He did, however, have something to say about Jessica. Palumbo said, sarcastically, that she is “An evil little thing.” That may have bee said sarcastically (there is debate over whether or not that line was sarcastic, but I’m willing to give him the benefit of the doubt), but the line “I think she’s being coerced by evil people” was most assuredly not. She is not being coerced, and her cause is not evil.
He said this of the girl who sought to do right to the best of her abilities and understanding, agreeably to the Constitution, and laws of the United States. The latter half of that comes from the United States oath of office. It is a pity, though not a surprise, that Jessica is the one who feels abiding by that oath is not “evil”.
Palumbo’s email address is firstname.lastname@example.org. His office phone number is (401) 785-2882. Spread the word and inundate him. Our leaders should respect the constitution, not snipe at those who have been been confirmed to have fought in its defense. Palumbo has just sided with dishonesty and bullies. We should have higher standards for our leaders, but evil men with Jesus in their hearts and a populace of the same keep these kinds of monsters in power, and they keep noble women like Jessica standing between the monsters and the Constitution those monsters are sworn to uphold.
In a moral world, this man’s career would end with this. Let’s continue to pursue a moral world.
I can’t add much of anything to that, except this little aside to Rep. Palumbo: tsk, tsk.
Religious liberty (which includes both freedom of and from religion) won a big victory in Rhode Island this week, with a court ruling that a prayer banner at Cranston High School violates the Establishment Clause of the First Amendment and ordering the banner’s removal. At the center of the case is 16 year-old Cranston student Jessica Ahlquist, who stood up for her (and everyone’s) constitutional rights and has endured an ongoing litany of abuse and threats in response.
It is worth noting that this case is so straightforward a law professor might balk at even using it as a hypothetical in a first-year constitutional law class. A public school, in 1963, put up a banner titled “Prayer” beginning with an invocation to a “Heavenly Father” and ending with an “Amen.” Does it get any more prayerful than that? Faced with an almost-guaranteed loss, the school board decided to roll the dice with the funding that should be used to educate children, using it instead to pay lawyers to argue that their prayer is not really a prayer. Not surprisingly, a judge who has actually read several decades’ worth of Establishment Clause jurisprudence ruled in favor of Ahlquist. Also not surprisingly (but disappointingly), the backlash has been prompt and furious. The above link to the abuse heaped on Ahlquist is not for the faint of heart, nor for anyone who wants to remain blissfully ignorant of how some people can be.
Ahlquist’s supporters, of whom there are refreshingly many, are conducting a college scholarship fundraiser for her to make her future brighter than her present. Contributions will go to a fund set up by the American Humanist Association (of which I am a proud member). I encourage my reader(s) to stand in support of this brave young person. The world needs more people like her.
Related link: Ruling (PDF), Ahlquist v. City of Cranston, et al
Photo: linked from here.
The always-intriguing and entertaining Popehat has put out his nominees for the “Censorious Asshat of the Year,” and the field is indeed proud. I am of course reblogging this for reas0ns, but I invite my reader(s) to take a look at the whole list and marvel at the human capacity for inanity.
To those who would use our hallowed legal system to try to quiet the voices of those who would dare to hurt their fee-fees, intentionally or not, I simply have this to say:
I have one viable claim to hipsterdom: I was into “Firefly” before it was cool.
I watched the show obsessively in the fall of 2002. I evangelized for it. I yelled at people who dared to doubt its awesomeness. I wrote letters to Fox urging them to give the show a fair shake. I mourned–O, how I mourned!–when the show came to its ignominious end (oddly enough, by showing the very first episode last).
Several years later, when the DVD allowed the multitudes of people who either didn’t know about the show in 2002 or had better things to do on a Friday night in 2002 and couldn’t work a VCR to discover the show anew, I was there to say “I told you so.” When a surge of popular support and demand led to the 2005 release of Serenity, the feature film follow-up to the TV series, I was out front to see it, to marvel at the power of fans, and (SPOILERS AHEAD) to mourn Book and Wash.
“Firefly” lives on in many ways, even if Joss Whedon’s subsequent projects haven’t been quite as compelling (although I am a big Dr. Horrible fan). The career of Summer Glau as the go-to strange, smart, unsettlingly hot guest actress on various shows (most recently “Alphas”) is but one of the testaments of “Firefly.” It has also left a lasting impact on my vocabulary (“shiny”) and left us many, many excellent quotes.
And that’s where I am no longer content to say that haters gotta hate.
That’s where the tribulations of University of Wisconsin-Stout theater professor James Miller enter the picture. Professor Miller’s tale threatens so many of the things I hold dear in life: satire, snark, free expression, generous use of move and TV quotes, pushing both buttons and envelopes, and so forth. To understand Professor James Miller, though, you must first understand Captain Malcolm Reynolds.
Captain Malcolm Reynolds, or “Mal” to those who know him (he doesn’t really have friends per se) is a fictional character portrayed by actor Nathan Fillion, but not a soul has seen an episode of “Firefly” and not wanted to hang out with Mal. He fought on the losing side of a mid-26th-century civil war waged across an entire solar system. Afterwards, he bought a spaceship (a Firefly-class cruiser) and travels the ‘Verse. If you have a job, he and his crew will take it. They don’t much care what it is.
Mal left us with quite a few classics of television philosophy before they took the sky from him. Chief among those is this exchange with a new passenger on his ship:
- Simon: I’m trying to put this as delicately as I can…how do I know you won’t kill me in my sleep?
- Mal: You don’t know me, son, so let me explain this to you once: If I ever kill you, you’ll be awake. You’ll be facing me. And you’ll be armed.
See, it’s an expression of honor. Mal wants Simon to know that, even though Mal doesn’t like Simon, Simon is part of his crew. As such, Mal will protect him, fight for him, and never, ever betray him. (Part of the story is that Simon has a hefty price on his head as a fugitive from the government, and has to stay hidden and on the run. Simon is extremely nonviolent. Mal offers him safe haven.)
Not everyone sees the quote that way, of course. Specifically, Lisa Walter, UW-Stout’s chief of police/director of parking services, found a poster on Professor Miller’s office door displaying that Malcolm Reynolds quote to be unacceptably threatening for an academic environment. So she took it down, and then notified Professor Miller. She told him that “it is unacceptable to have postings such as this that refer to killing.” She further warned him that future postings in a similar vein could lead to a charge of disorderly conduct.
I was not able to locate any examples of UW-Stout faculty or staff getting into criminal trouble for being a Roberta Flack fan, but it is possible that it could happen using Chief Walters’ standard.
Professor Miller, not being one to go quietly, put up a new poster stating his thoughts on the dangers of fascism and its possible effects on the skull and brain. Of course, UW-Stout administration, having spent the past several years developing an immunity to irony, found this poster comparably objectionable, somehow concluding that Professor Miller was encouraging fascist violence.
The matter went up the chain of command, all the way to the university chancellor. Surely the highest echelons of university power could see this for the overblown clusterf*** that it was, and cooler heads could prevail, right?
If you think that’s where this story is going, you must be new to my blog. I deal in stupid stuff.
Chancellor Charles W. Sorensen had this to say:
[W]e…have the responsibility to promote a campus environment that is free from threats of any kind—both direct and implied. It was our belief, after consultation with UW System legal counsel, that the posters in question constituted an implied threat of violence. That is why they were removed.
This was not an act of censorship. This was an act of sensitivity to and care for our shared community, and was intended to maintain a campus climate in which everyone can feel welcome, safe and secure.
So a quote identifying all the reasons why a fictional character won’t kill you, along with an obviously-stylized bit of satirical protest, constitutes “an implied threat of violence”? Is the administration honestly worried that Professor Miller might come to school with a gun and only shoot people who are similarly armed, awake, and facing him? Or that he might don a helmet and beat stick figures with a baton? Have universities become so teacuppish that students cannot handle this level of non-threats?
I weep for the future. I weep for the students of UW-Stout who have to get an education and plan for a future in such a colossally cowardly institution. I weep for the cancellation of “Firefly” (and no, Fox, I am never letting that go, dammit.)
I end with the remainder of that exchange between Mal and Simon:
- Simon: Are you always this sentimental?
- Mal: I had a good day.
- Simon: You had the Alliance on you, criminals and savages… half the people on the ship have been shot or wounded including yourself, and you’re harboring known fugitives.
- Mal: We’re still flying.
- Simon: That’s not much.
- Mal: It’s enough.
Extra reading on this topic:
College professor threatened with criminal charges for Firefly quote, io9, September 26, 2011
I Swear By My Pretty Floral Bonnet, I Will Censor You, Popehat, September 26, 2011
Chancellor Charles W. Sorensen Vigilant Against Threat of Satire, Figurative Speech, Hurt Feelings, Popehat, September 28, 2011
Banned posters rile ‘Firefly’ TV show fans against UW-Stout, Pioneer Press, September 29, 2011
I’m no stranger to saying dumb things without thinking. Mine usually come in the form of trying to make a joke too soon, as opposed to today’s story. Let me switch from snark to outrage.
An unbelievably tragic situation in California has bizarrely led to the threat of an ethics complaint against Sacramento lawyer Nabil Samaan. In short, after a bitter custody battle, it appears Mourad “Moni” Samaan and his 2-year-old daughter, Madeline, died in a murder-suicide from carbon monoxide poisoning. As of August 21, police are officially still investigating the cause of death, but murder-suicide is the prevailing theory. This occurred shortly after a court awarded the child’s mother, Marcia Fay, full custody of Madeline.
Marcos Breton at the Sacramento Bee said it best:
It doesn’t matter if husband and wife are bickering and fundamentally divided.
It doesn’t matter if the court system is a terrible arbiter for family disputes.
It doesn’t matter if one side is right and one side is wrong or both sides are right and both sides are wrong.
It doesn’t matter if you feel cheated and betrayed.
There is no justification for taking the life of a child – for taking any life.
One would hope that this is an axiomatic concept in this day and age. Perhaps Samaan was angry at the court system or his ex-wife. What would possibly lead to what he did? It’s a mystery to me, but apparently it’s not to to Samaan’s brother, Nabil Samaan, who had this to say:
I think he did the right thing. I’m proud of my brother and now he’s in a better place. He’s at peace. His daughter’s at peace. She’ll have one name now, and we can move on. And hopefully the court will learn a little thing about justice.
I take issue with words like “right” and “peace” in this instance, but the Center for Judicial Excellence has taken it a few steps further by stating they intend to file an ethics complaint against Nabil Samaan over his statement.
I have to say that, while such statements certainly “shock the conscience,” I’m not sure I see where disbarment would come in. He didn’t say anything that specifically affects an ongoing case in which he is counsel, and he could plausibly claim that his statement is protected by the First Amendment (it’s always the statements we deplore that test First Amendment protections.) It is also entirely possible that he spoke mostly out of grief or shock. I am not aware of any specific rule of attorney conduct that says a lawyer cannot be a complete and total jerk (hypothetically, of course). If there were such a rule, I suspect a great many lawyers would be in trouble.
That said, it’s not like there will not be any repercussions for the guy. I leave the final thought on the matter to ethics attorney Jerome Fiskin, who had this to say: “What kind of people search out an attorney who, um … yeah.”
Could not have said it better myself.
NOTE: I seem to be writing about ethics a fair amount, so I decided to create a new category for ethics. Now I have to go back and edit all my earlier ethics-related posts. Ugh.
Bill Kaysing was a purveyor of moon hoax theories, and is often credited as starting the moon landing conspiracy movement. He was the author of books like We Never Went to the Moon: America’s Thirty Billion Dollar Swindle.
In 1996, after an encounter with Kaysing and some correspondence, Lovell was quoted in an article by Rafer Guzmán in Metro, a weekly Silicon Valley-area newspaper:
Speaking from his office in Illinois, Lovell said of Kaysing: “The guy is wacky. His position makes me feel angry. We spent a lot of time getting ready to go to the moon. We spent a lot of money, we took great risks, and it’s something everybody in this country should be proud of. His problem is, he saw that movie Capricorn One and now he thinks that’s really the way it goes.”
Eager to defend his legacy of bravely standing up to mountains of peer-reviewed scientific evidence, sued Lovell for libel on August 29, 1996, specifically for calling him “wacky.”
Keep in mind that truth is a defense to defamation.
Kaysing, who wrote a book called We Never Went to the Moon, filed what amounts to a nuisance suit against the astronaut last year following a Metro article in which Lovell called the writer “wacky.” Legal experts who were contacted agree that calling someone “wacky” does not a successful libel suit make. If anything, Kaysing’s wild accusation that Lovell is a liar who participated in a government conspiracy to fool the public is more harsh than being called wacky. (Source)
I don’t see how one can argue that calling a person “wacky” is anything other than a statement of opinion. I also don’t see how it is any worse than what Kaysing said about Lovell in the same article:
Kaysing considers Lovell almost a comedian. “He’s essentially a sort of comic Manchurian Candidate,” he says. “He’s been either brainwashed, hypnotized, programmed or whatever to present this spurious story of having gone to the moon.”
Is it defamatory to say someone has been brainwashed? Not particularly. Nor is it defamatory to call someone “wacky.” Fortunately a judge agreed and dismissed the suit on September 25, 1997.
It makes for a fun example of the limits of using the courts to fix your public image. If someone says you are wacky, demonstrate how they are wrong (if you can), or determine if you really are wacky and try to fix it. If you are a conspiracy theorist, public opprobrium from an establishment figure like an astronaut ought to boost your image among the conspiracy-minded. Unless someone has said something blatantly and demonstrably false that has harmed you, don’t ask the courts to fix it for you. Even then, it’s a tough row to hoe.
Bill Kaysing passed away in 2005. Since a deceased person has no cause of action for defamation, let me just say this: the guy was wacky. Wacky, wacky, wacky. He was also absurd, bugged out, crazy, daft, deranged, dotty, foolish, harebrained, idiotic, loony, nutty, odd, and silly. (Yes, I borrowed Eric Turkewitz’s thesaurus).
Here are a few bits of news on the defamation lawsuit beat:
1. Thomas Cooley Law School, who sued two lawyers and some anonymous bloggers over comments made online about the school, has been sued by those same lawyers for alleged fraud in the reporting of graduate employment statistics:
Cooley filed a lawsuit (PDF) against Kurzon Strauss last month in response to solicitations the firms posted on Craigslist and JD Underground that included a draft of a purported class action complaint contending that Cooley incorrectly reported its graduates’ job placements. David Anziska told the ABA Journal at the time that the firm intended to countersue Cooley as well as the school’s lawyers at Miller Canfield.
2. Proving that the defamation Streisand effect extends beyond the legal profession, a doctor in Minnesota is appealing a court ruling that says comments posted online that are critical of his bedside manner do not constitute defamation:
Amusingly, part of the reason that Dr. McKee is apparently filing the appeal is because he claims that the same guy started writing a bunch more critical messages about him online after the ruling came out. However, the guy, Dennis Laurion, insists that he hasn’t posted anything since the lawsuit began, and suggests that perhaps all of those anti-McKee posts came about because of the negative publicity associated with the lawsuit. Specifically, he notes that “there was an influx of Internet chatter about McKee after a link to a story about McKee appeared on the high-traffic website reddit.com.” So what next? Will Dr. McKee try to sue a bunch of Reddit posters too? I’m sure that will go over well…
3. Finally, the story of a Philadelphia attorney who, after seeing a 2007 article about himself on the internet in 2009, sued quite a few people for defamation and various other claims. The lawsuit was dismissed as untimely, but the lawyer kept on suing, adding as defendants the lawyers who got the case originally dismissed. It is an interesting case.
Obviously defamation law is of interest to me, as is the notion that it can be used to bully people into silence on the internet. I can honestly say that I do not know all the facts in any of these cases, since I only have access to what is on the internet. That’s the thing, though–if no one is allowed to comment on a matter of public interest until they have all the facts, then there would be no public discussion of any kind, ever. I strongly believe that, in almost all circumstances, the proper response to allegedly defamatory speech is more speech. As Justice Brandeis wrote in his concurrence in Whitney v. California:
If there be time to expose through discussion the falsehood and fallacies, to avert the evil by the processes of education, the remedy to be applied is more speech, not enforced silence. Only an emergency can justify repression. Such must be the rule if authority is to be reconciled with freedom.
All Constitutional issues aside, there is a more immediate point to this, that Justice Brandeis could not have understood: lawyers cannot control the internet. Scott Greenfiled nails it:
Neither bluster nor averment is going to bend the internet to our overwhelmingly mighty lawyer will. I know, it’s hard to fathom that the world doesn’t shake when we threaten or act, but the internet is a different animal from anything we’ve ever before known.
As lawyers, it’s time to come to grips with some hard realities that now exist and appear likely to be the norm going forward. First, we are subject to ridicule online just like Babs Streisand. Expect that every swing of your big lawyerly muscle is going to be rebroadcast in unkind terms by a lot of people who carry weight on the internet that lawyers can only dream of.
Second, expect that our claims and allegations will be subject to scrutiny far beyond our wildest dreams, and there’s a darn good chance that if there’s a flaw, any flaw, even the slightest, it’s going to be magnified beyond your wildest imagination and become a testament to your incompetence.
And third, and most importantly, regardless of all else, the internet is populated some very smart and some very crazy folks. If the former don’t get you, the latter will.
A Pennsylvania man has started a free speech debate, of sorts.
A bitter, divorced Pennsylvania man’s blog has triggered a free-speech debate, officials say.
Doylestown resident Anthony Morelli created his blog, ThePsychoExWife.com, in 2007 as a way to blow off steam about his ex-wife, The Philadelphia Inquirer reported Sunday.
But then his ex-wife, Allison Morelli, found out about the Web site and became very upset, calling it “heartbreaking” and potentially harmful to their 9- and 12-year-old sons.
At a June 6 custody hearing, Bucks County Court Judge Diane Gibbons ordered Anthony Morelli to take down the Web site and banned him from mentioning his ex-wife “on any public media” or saying anything about his children online “other than ‘happy birthday’ or other significant school events.”
At that point, Mr. Morelli did not stop posting, and the judge ordered that the site be taken down. Did this violate Mr. Morelli’s free speech rights? Many people believe it did, to the point that a campaign has begun to bring his website back:
We are asking for help in this defense because it is an issue that faces any parent that is divorced. Imagine a judge telling you that you cannot talk about your children on “any public media” – which would include things like Facebook updates, Twitter, or your personal blog – or you will lose custody. Imagine the far-reaching consequences for bloggers everywhere if orders such as this one are left unchallenged? There goes your online support group. There goes your Facebook and Twitter updates. Your website, personal OR commercial – ordered gone under threat of incarceration and having your beloved children removed from your custody. This order flies in the face of our civil rights, and your civil rights, too! Imagine trying to protect your children from abuse and a judge telling you that you must hide the abuse and protect the abuser by not allowing you to talk about the abuse in public, we can’t let this stand.
This does not appear to be a question of defamation, in that I don’t think the mother is specifically charging that statements on the blog were untrue, but rather that they would be harmful to the parties’ children if the children saw them. Most states, Pennsylvania included, follow the “best interest of the child” doctrine when determining child custody and orders relating to parenting. The question is, does the best interest of the children trump the father’s First Amendment rights?
I am very hesitant to support curtailing anyone’s freedom of speech and expression based on the extremely fuzzy “best interest” standards. In my experience, though, judges often place “best interests” above any rights of the parents, basic common sense, and the laws of gravity. Since I cannot directly review the blog in question, all I can say is that it seems to have contained some rather unpleasant stuff (just as anything at the forefront of a free speech debate does). I can see how the contents of the blog would be relevant to an ongoing custody case, since the nature of the parents’ relationship affects the children on a daily basis. I can see a judge exercising some sort of review to make sure neither parent is defaming the other (in any medium, really). To issue a blanket injunction against most forms of communication with (or about) the children, though, does not sit well.
The blog seems petty, to me at least. Even if his ex-wife is a psycho, he is taking the low road. The point is that the low road ought to be his to take if he wants.