My Style - Reclaim My Identity : 2017

Friday, December 29, 2017

Eugene Volokh on A Prosecution For Insulting Facebook Posts

Over at Reason, the Volokh Conspiracy's new home, Eugene Volokh has a post up about the criminal prosecution of a California man for, among other things, insulting Facebook posts.

My law partner Caleb Mason is defending that case. This is an apt moment to remind you that my law firm has no role in or control over this blog and the content is the sole responsibility of the people who write here.

You may remember Caleb from his First Amendment win in a federal criminal case in 2016, or the time he published a law review article using Jay-Z's 99 Problems to explain Fourth Amendment issues.

Friday, December 15, 2017

Randazza: Section 2(a) Falls! First Amendment Wins!

He died for your sins. Today he spoke to us through the justices of the Federal Circuit

First Amendment Prevails as Final Portion of Trademark Act’s Censorship Regime Falls

by Marc J. Randazza

The U.S. Court of Appeals for the Federal Circuit just struck down the final pillar in the U.S. Trademark Act’s censorship regime.

15 U.S.C. § 1052(a) (known best as “Section 2(a)”) is a portion of the Lanham Act, the federal trademark statute, that prevents registration of certain kinds of marks. It used to bar registration of marks that “may disparage,” as well as marks that were “immoral or scandalous.” Earlier this year, the Supreme Court in Matal v. Tam, 137 S. Ct. 1744 (2017) found that the bar on registration of marks that “may disparage” violated the First Amendment. This decision got a lot of attention and caused much speculation as to whether the “immoral or scandalous” language of Section 2(a) would survive, since the two had so much in common.

In fact, the author of this Article did an in depth study of the issue in Freedom of Expression and Morality Based Impediments to the Enforcement of Intellectual Property Rights. See also The USPTO Would Prefer Not to Follow the First Amendment, What's got “The Slants” case, CUMFIESTA, Fuckingmachines, Nutsacks, and Japanese porn?, and Decision on Asian American Band's Name is Wrong.

We no longer have to speculate as to how the courts might fuck this up — they didn't. Section 2(a)'s unconstitutional provisions have finally fallen, absent an appeal. And, the final one fell on largely the same arguments I raised in 2006 in "The Fuck Brief." Unfortunately, my client in that case elected to forego an appeal. However, most of the arguments made it into the Amicus Brief filed by the First Amendment Lawyers' Association in the In Re Tam case.

Today, the Federal Circuit in In re: Brunetti, Case No. 2015-1109 (Fed. Cir. Dec. 15, 2017) found that the “immoral or scandalous” restriction on registration is unconstitutional for largely the same reasons the “may disparage” restriction was. The case started with the applicant, Brunetti, attempting to register the mark FUCT. The USPTO found this mark to be synonymous with “fuck,” making it vulgar, and thus running afoul of Section 2(a). The Federal Circuit affirmed that FUCT was immoral or scandalous, but then found that this portion of Section 2(a) was unconstitutional and thus could not prevent registration of the mark.

The Brunetti Decision

Background and Legal Issues

The Brunetti decision is heavily influenced by the Supreme Court’s Tam decision. As in Tam, there was a question as to whether the “immoral or scandalous” restriction was viewpoint-based. Such restrictions are almost always unconstitutional. The Brunetti court found that the “immoral or scandalous” restriction was likely viewpoint-based and failed to pass constitutional muster (Decision at 13.)

The Tam decision already effectively dispensed of some of the government’s potential arguments.[1] The two arguments that the Brunetti court primarily considered not at issue in Tam were (1) the federal trademark registration scheme (specifically the principal register) is a limited public forum allowing for content-based restrictions on speech, and (2) the “immoral or scandalous” portion of Section 2(a) survived the lesser level of scrutiny for restrictions on commercial speech.[2]

The Federal Register Not Found to be a Limited Public Forum

Depending on the type of public forum, the government may restrict speech on the basis of content. Traditional public forums, such as public sidewalks or parks, give the government the least leeway in restricting speech, while limited public forums, where the government only opens property for narrow uses by the public, allow for content-based restrictions.

The government argued that the principal register was similar to “metaphysical” limited public forums that courts have recognized in other cases, such as a university’s student fund or a workplace charity drive. The Brunetti court found that these forums were connected to specific government property, and thus had no relation to the principal register or the federal trademark scheme; after all, a mark by definition is used in commerce and cannot be tied to specific government property. (Decision at 24.) The principal register is merely a government database, and accepting the government’s argument on this point would mean turning every government registration program, such as copyrights and marriage licenses, into limited public forums and allowing wide-ranging content-based discrimination by the government. (Decision at 25.)

“Immoral or Scandalous” Bar Not Aimed at Commercial Aspect of Trademarks

The Brunetti court went on to reject the government’s argument that the “immoral or scandalous” prohibition of Section 2(a) was aimed at commercial speech. The primary test for determining whether a mark is “immoral or scandalous” is if the general public would find the mark “shocking to the sense of truth, decency, or propriety; disgraceful; offensive; disreputable; . . . giving offense to the conscience or moral feelings; . . . or calling out for condemnation.” In re Fox, 702 F.3d 633, 635 (Fed. Cir. 2012). The court noted that this restriction is aimed solely at the expressive content of trademarks, rather than their commercial source-identifying function, and necessarily involves moral value judgments. (Decision at 27.) The court could have stopped after this determination, since the government agreed that the “immoral or scandalous” portion of Section 2(a) could not survive strict scrutiny, but it went on to find that the restriction could not survive even intermediate scrutiny.

The “Immoral or Scandalous” Bar Fails Even Intermediate Scrutiny

Intermediate scrutiny allows content-based restrictions on commercial speech if (1) the speech concerns lawful activity and is not misleading; (2) the asserted government interest is substantial; (3) the regulation directly advances that government interest; and (4) the restriction is not more extensive than necessary to serve that interest. See Central Hudson Gas & Elec. Corp. v. Public Serv. Comm’n, 447 U.S. 557, 566 (1980).

The court found that there was not a substantial government interest served by the “immoral or scandalous” restriction. The only interests the government articulated was “protecting public order and morality,” and shielding trademark examiners from drawings of genitalia. (Decision at 29-30.) The court pointed out that Supreme Court precedent, including Tam, establishes that the government does not have a substantial interest in protecting the sensibilities of the public or preserving people’s feelings.[3]

Even if this were a substantial interest, the prohibition on registration of “immoral or scandalous” marks failed to advance it. The court observed that the restriction does not prevent anyone from using such marks in commerce, and that “[i]n this electronic/Internet age, to the extent that the government seeks to protect the general population from scandalous material, with all due respect, it has completely failed.” (Decision at 35.)

Finally, assuming that the other elements of the Central Hudson test were met, the court found that the “immoral or scandalous” standard was so vague and open to interpretation that it was unnecessarily expansive. The court identified numerous marks that were registered in some cases and rejected in others with seemingly no consistent principles or standards. (Decision at 35-37.)

The “Immoral or Scandalous” Language Could Not Be Narrowed

After finding that the “immoral or scandalous” bar cannot survive as it currently exists, the court looked to whether a narrower interpretation of its language would make it constitutional. The concurring justices wanted narrowly to define “immoral or scandalous” as referring only to legally obscene content, but the court could not allow this because the restriction had a clear history of being applied to content that was not legally obscene or even sexual in nature, and no commonly used definition of “immoral or scandalous” is co-extensive with the legal definition of obscenity. (Decision at 39-40.)

What This Means for Trademark Owners

Finally, after years of unconstitutional action by the USPTO, there is no longer a bar on the registration of “immoral or scandalous” trademarks. Several applications for allegedly “immoral or scandalous” marks were suspended after the Federal Circuit’s decision in Tam, and the Brunetti decision should mean that these applications will now be able to proceed to registration. This does not necessarily mean they will, however. The USPTO may decide to appeal the Brunetti decision to the U.S. Supreme Court, and use that appeal as the basis for continuing to suspend these applications. It may also use such an appeal as the basis for suspending any new trademark application that an examiner determines to be “immoral or scandalous.” The government was the clear loser in the Brunetti decision, and I doubt it thinks it will fare any better on most issues with the Supreme Court. It may, however, attempt to push hard on obtaining a narrower definition of the bar on appeal that does not invalidate it outright, but instead restricts it only to legally obscene trademarks. This argument probably has the best chance of prevailing.

There is also the possibility that Congress, if it can be trusted to do anything in the current political climate, may introduce a new restriction to replace the “immoral or scandalous” bar. The Brunetti decision strongly indicates that a bar on registration of legally obscene marks would be constitutional, but Congress may attempt to impose a somewhat broader restriction. This is speculation for now, though, as there do not appear to be any rumblings from Washington about rewriting Section 2(a).

Brunetti does not necessarily create an automatic sea-change in the federal trademark registration regime. We will need to see what the USPTO does in the short term in response to the decision. If it allows previously “immoral or scandalous” marks to proceed to registration, then we should expect to see a flood of trademark applications for years' worth of a backlog of improperly-denied registrations. If the USPTO keeps sitting on its hands, however, that rush will likely be delayed until the Supreme Court (if it takes the case) decides the issue. However, should the Supreme Court decide to take this case up, it would be hard pressed to overrule this decision and keep the very recent precedent of In Re Tam intact. I find it very unlikely that SCOTUS would be inclined to reverse precedent that it just recently established, unanimously at that.

[1] The government reiterated its argument that the federal trademark registration scheme is a government subsidy, meaning it can discriminate based on content. While only a plurality of the Tam actually reached this issue, the Brunetti court found there was no indication from the other justices that this was a close call or that the Federal Circuit’s Tam decision on these issues was in any way wrong. (Decision at 16.)

[2] The government conceded that the restriction could not survive “strict scrutiny,” the usual (and extremely difficult to satisfy) test for content-based restrictions on speech. (Decision at 14.)

[3] The government tried to analogize this case to FCC v. Pacifica Foundation, 438 U.S. 726 (1978), which found that the government could restrict an afternoon broadcast of George Carlin’s rapid-fire recitation of “shit, piss, cunt, fuck, cocksucker, motherfucker, tits” for the purpose of preserving the sensibilities of vulnerable children. The Brunetti court dispensed of this by noting that registering a trademark does not foist the mark upon the nation’s youth, or even make them any more accessible. (Decision at 34.)

I Have Almost Nothing Bad To Say About Matthew Spencer Petersen

I have almost nothing bad to say about Mr. Matthew Spencer Petersen, President Trump's nominee to be a United States District Judge for the District of Columbia.

Mr. Petersen is smart and well-educated. He is respected by his peers. He is, reportedly, good at his job as Chairman of the Federal Election Commission. When Senator John N. Kennedy (R-LA) asked him a series of increasingly brutal questions revealing his lack of relevant experience and knowledge about issues relevant to the federal judiciary, he responded with humility and self-effacement, not bluster or entitlement:

Mr. Petersen is manifestly not qualified to be a United States District Judge — that is, a federal trial judge. But that, in itself, does not reflect badly on him. Few people are qualified for that position. There are around 1.3 million lawyers in America and only around 2,800 federal trial judges. It's an elite job and there's no shame in not being qualified for it. It's unfortunate that he accepted the nomination, and I suppose that does not speak well of him, but it's hard to throw the first stone there — how many of us would turn down such power and such an honor out of an awareness of our own shortcomings?

But his nomination reflects very badly on this administration, on those Senators who will support him out of party loyalty, and on the American Bar Association, which rated him as qualified.

United States District Court Judges are appointed for life and are very rarely impeached. They commonly serve into their eighties or nineties. Though appointments to the United States Court of Appeals are considered more prestigious, a job as a district judge is much harder. Federal appellate judges have increasingly brutal caseloads, but those cases are presented to them with an established record (that is, the facts heard in the trial court to which they will apply the law) and each case presents a relatively limited set of issues, usually narrowed down by the parties. Appellate judges make very few, if any, on-the-spot decisions. Their job is intellectually challenging but removed from the tip of the spear: given these facts, and these arguments, and an extended opportunity to research precedent, what's the right answer?

By contrast, a district judge is a trial judge. Unlike many state judges, United States District Court judges hear both criminal and civil cases. Their criminal cases range from the mundane (a bank robber or a drug mule) to the extraordinarily complex (say, the Menendez prosecution). Their civil cases are even more varied — they handle everything from complex questions of patent law to antitrust to civil rights and constitutional law, plus many disputes under state law, which they hear as a result of various types of federal jurisdiction.¹ They delegate some hearings and decisions to the Magistrate Judges they appoint, but are required to review the decisions of those Magistrate Judges. They preside over criminal and civil cases from start to finish, and will be called upon to make key decisions about them throughout. They dictate the length and breadth and nature of the trial through their pretrial rulings, and preside throughout the trial, making scores of in-the-moment evidentiary and procedural decisions each trial day. The job involves a potentially infinite amount of work — it can eat perfectionists alive.

An enormous amount of a federal judge's job is both facility with the law and judgment, borne of experience, about how litigation works. District judges have law clerks — typically people who just graduated law school. Those clerks, who usually serve for a year, often advise the judges on resolution of civil and sometimes criminal motions. For instance, if the defendant in a civil rights case files a motion to dismiss the civil complaint against him on the grounds that it is legally insufficient, a law clerk would commonly read the motion, the opposition, and the reply, research the arguments made therein, and prepare a memo outlining the arguments and the law and (depending on the judge) recommending a resolution. Once the judge makes a decision, those clerks will sometimes draft the judge's order. But those clerks have very little judgment or experience themselves, and have to rely on the judge for — lacking a better term — wisdom — that is, years of experience seeing the law applied to facts. Many of the most important and momentous rulings involve discretionary decisions that call for a great deal of experience: how much is reasonable to award this party in attorney fees in this civil rights case? Was this person's conduct "reasonable"? How long should a bank robbery trial take? How many witnesses should I let the plaintiff call to prove a particular fact? What's a reasonable amount of time for discovery in this case? Is this piece of evidence too prejudicial — that is, does its tendency to inflame the jury outweigh its probative value? How many times should I tell this jury to go back again and try to reach a consensus before declaring a mistrial? Is that expert qualified? Should I excuse that juror for cause? I have sentencing guidelines suggesting a sentence for this drug dealer, but how bad are they and what sentence do they deserve, in the scheme of things? Was this government misconduct outrageous? And in trial — unless the trial is to last for months — federal judges need to be prepared to make crucial decisions on the spot.

These decisions impact our fundamental rights. Our claims are won or lost. Our rights are vindicated or not. We are confined by the state, or not. Procedural and seemingly technical decisions often drive the outcome. And the best chance for the right result — the just result — is before the trial judge. There's a right to appeal, of course, but most wrong decisions won't be reversed. The standard of review (that is, the rule for how wrong the trial judge has to be for a judgment to be reversed) generally strongly favors the original result, appeals are lengthy and expensive, and the trial judge's original ruling has tremendous inertia.

That's why the qualifications of a federal judge are crucial. That's why it's important for a federal judge to have some facility with litigation. It's common for nominees to have civil litigation experience but not criminal litigation experience, or vice-versa, but some experience with adversarial proceedings is essential. An experienced cardiac surgeon can learn to be a vascular surgeon, and vice-versa, but a career psychiatrist (who is, after all, a medical doctor) isn't suited to be thrown into either type of surgery. If you send a career psychiatrist into surgery, no matter how good her interns are, no matter how much she studies up for a few months first, no matter how much she stops in the middle and calls surgeons for advice, somebody's going to suffer until she sort of gets the hang of it, perhaps after a few years.

Mr. Peterson is like a career psychiatrist sent to do a trauma surgeon's job. His excruciating questioning by Senator Kennedy revealed he was unfamiliar with some very basic legal concepts. Even though he's not a litigator, he has supervised litigation at the FEC, and went to law school, so I was honestly floored that he didn't know what Daubert was (it's the standard that governs how a federal judge decides whether expert scientific testimony is reliable enough for federal court, and it's why you don't see dowsers or phrenologists or psychics testify in federal civil or criminal trials) or what a motion in limine is (it's a motion asking a judge to make a pretrial decision about what evidence will or will not be permitted at trial, and is absolutely essential to federal trial practice, both civil and criminal). He didn't know what the Younger or Pullman abstention doctrines are — most lawyers would at least be able to say "those are doctrines governing when federal courts decline to resolve certain issues out of deference to states," even if they couldn't off the top of their heads connect the case to the particular subject of abstention.² He's never tried a case and never tried a motion. These things don't make him an inadequate person. They don't even make him an inadequate lawyer — there are many law jobs involving niche issues that do not require facility with litigation. But they make him manifestly unqualified to be a federal judge. Making him one is a serious disservice to the federal judiciary, to the litigants it serves, and to the rule of law.

You can probably find similarly unqualified people in history nominated by Democrats and Republicans. I don't care. Being good at one law job (FEC Chair), being prominent, being connected, being politically astute, is not the same as being qualified for the federal trial bench. The ABA's "qualified" ranking undermines its credibility and reveals its deference to power and position.

I have almost nothing bad to say about Matthew Spencer Petersen. But I have nothing good to say about the people who nominated and supported him.

Thursday, December 7, 2017

The Giving Season: Three Alternatives

So the season of giving is upon us. UPS packages from Amazon clutter every doorstep.

Giving gifts to the kids is still a joy. But the older I get, the more I appreciate simplifying things and exchanging meaningful donations to charity with the other grown-ups in my life. It's more in keeping with what Christmas means to me, it's less stressful, it feels good, it makes a difference.

Here are three ideas for the season.

First, the American Civil Liberties Union. (I've now alienated half the audience.) Their work is essential even when I do not agree with all of their choices and stances. Donations are being doubled through the end of the year.

Second, the Foundation for Individual Rights in Education, which vigorously fights for the free speech and due process rights of students and professors. (There goes the other half.) You can donate here or help CEO Greg Lukianoff meet his matching goal here.

Third, a personal favorite, Mercy Ships. This organization parks medical ships off the coast of Africa and provides live-changing medical procedures to people who otherwise would never have access to such care. Donate here. An entire family from my church — adoptive parents like us — served on one of these ships, and their stories are wonderful.

Lawsplainer: Donald Trump, Jr. and the Attorney-Client Privilege

I have good news!

I find that highly unlikely.

I have a new legal question for you!

Once again, my low expectations are rewarded.

Stop being grumpy. This is important. It's about Donald Trump and Donald Trump, Jr. and Congress and the attorney-client privilege and lawyers and stuff.

Ugggghhhh.

So yesterday, Donald Trump Jr. was being questioned by the House Intelligence Committee and refused to answer questions about a conversation he had with Donald Trump Sr. about meeting with Russians in Trump Tower in June 2016. He did the attorney thingy.

Did he.

You know what I mean. He said that he wouldn't answer because of attorney-client privilege, because there was a lawyer present during the conversation.

Sort of. That's the way some sources describe it. Other sources say Jr. invoked the privilege when asked about a phone call between him and his father with lawyers for both on the line.

So . . . was he right?

It depends.

I knew you'd say that. What is the attorney-client privilege, anyway?

Fine.

The attorney-client privilege is a rule that lets attorneys and their clients refuse to disclose confidential communications about legal advice. So if you hire a lawyer and tell that lawyer in private about something you did so that the lawyer can give you legal advice, neither you nor the lawyer can be forced to answer questions about what was said in that conversation. Generally the person invoking the privilege has the burden of showing that it should apply.

So was the conversation by Trump Jr. and Trump Sr. privileged, because there was a lawyer in the room, or their lawyers were on the call?

No, not necessarily. Just having a lawyer in the room, or on a call, doesn't make a communication privileged. The communication is only privileged if it's for the purpose of obtaining legal advice — if it's communicating things to the lawyer so the lawyer can give legal advice, or it's the lawyer communicating that legal advice. For instance, having a company's general counsel in the room or on the phone during a meeting about business issues doesn't make the meeting privileged, unless the purpose was to get the general counsel's advice.

You see this issue come up all the time in the modern era with email. Just cc'ing your attorney on an email to a non-attorney does not make the email privileged. The email's only privileged if it's to get legal advice — to tell the lawyer something they need to know to give advice, for instance.

So if Sr. and Jr. were just talking, and weren't conveying information for the purpose of getting legal advice from the lawyers who were on the call or in the room, the conversation would not be privileged. On the other hand, if they were exchanging information so that their respective lawyers could give them legal advice about what the lawyers heard, it could be. Jr. didn't really give enough information to judge.

But wait a minute. I thought a communication had to be confidential to be privileged. Doesn't that mean it just has to be one client and his or her lawyers, and nobody else in the room?

Yes, with an if, or no, with a but.

Yes, in general, the communication has to be confidential to be privileged. That means you have to intend that it be confidential and in fact keep it confidential. The presence of other people outside the attorney-client relationship prevents the privilege from attaching. That's the core of the rule. That's why people with entourages make very difficult clients.

But there are exceptions. Translators don't destroy the privilege — they are there to empower the communication. Nor do other people who are there for the purposes of facilitating the communication. So if Don Jr. generally communicates in clicks and grunts and only Don Sr. can coax him into complete sentences, Don Sr.'s presence to help Don Jr. communicate with his lawyer doesn't destroy the privilege. After that it gets cloudy. Having your spouse in the room may or may not destroy the privilege depending on the nature of the advice and the jurisdiction. Same with other family members — some courts find that the communication was still privileged because the family member agreed to keep the communication confidential and was there to facilitate the communication, some don't. It's a risk to have other people in the room, and many attorneys — like me — will send even a client's spouse out of the room during key parts of a conference.

The same thing goes with lawyers. If someone else's lawyer is in the room, that normally means that your communication with your lawyer isn't privileged.

But . . . . there's also a thing called the "joint defense privilege" or "common interest privilege."

Wait. Didn't Michael Flynn's lawyers withdraw from one of those just before he entered his guilty plea?

Exactly. They're very common in federal criminal defense practice.

The basic idea is this: when the feds are after you and your pals, you need to figure out what they might be after, and whether you did anything illegal, and what sort of trouble you might all be in. So you want to exchange facts you know, and your lawyers want to exchange legal theories and strategies. But normally if you exchange those with other people or their lawyers you'd be giving up the privilege. So everyone — you, your pals under investigation, and all your lawyers — enter something called a Joint Defense Agreement or Common Interest Agreement or Joint Information Sharing Agreement. You agree that you call have a common interest in defending the government's investigation, that you want to share information to promote that common interest for your mutual benefit, and that everyone agrees to keep strictly confidential what they learn from the other members of the agreement. If anyone decides to talk to the government they have to exit the agreement and still keep what they learned before confidential. The idea is that because of the obligations of the agreement, the information is only being shared with people with a legal obligation to keep it confidential, so the confidentiality of attorney-client communications is not lost.

This idea works in all types of law — criminal cases, civil cases, whatever — when a group of people and their lawyers have a common interest.

So if Donald Trump, Donald Trump Jr., and their lawyers were part of a Joint Defense Agreement, the presence of all of them on the phone doesn't stop the conversation from being privileged. But it also doesn't make the conversation privileged if it wasn't already — if it wasn't for the purpose of getting legal advice.

Does the Joint Defense Agreement have to be in writing?

It's not an absolute necessity — an oral agreement might suffice. Courts have sometimes upheld oral agreements or even found a common interest without an explicit agreement. But that's extraordinarily risky. Given the circumstances I would be absolutely shocked if the Trump lawyers did not have a rigorous Joint Defense Agreement in place.

The same Trump lawyers who said that they wrote a tweet confessing that Trump knew Flynn lied to the FBI?

You're right. I have no idea if the Trumps had a Joint Defense Agreement in place or if they even know what one is.

But competent federal criminal defense attorneys absolutely would.

So what's the bottom line — was Donald Jr. right to invoke the attorney-client privilege or not?

Well, if the purpose of the communication was to get legal advice from the lawyer or lawyers present, and if everyone present was part of a Joint Defense Agreement, then yes. We don't have enough information to tell. My first reaction to the news "they had a talk in a room with a lawyer in it" was that it sounded like nonsense, but the report of a call with lawyers for both of them on the call is significantly more plausible.

But there's a wrinkle.

What's that?

It's clear that you can invoke the attorney-client privilege to refuse to answer questions in court, or in a deposition.

But it's not clear what happens when you invoke the privilege before Congress. Congress is cagey about whether it recognizes the attorney-client privilege as applying to its inquiries. In typical Congressional fashion, it hasn't made a clear rule, but sometimes Congress acts as if it does not recognize the privilege, and sometimes it acts as if it can use some sort of balancing test — the need for the information versus the interests of the witness — to decide if the privilege applies. And it's not clear to what extent courts can review Congress' refusal to recognize the attorney-client privilege. It's kind of a mess.

So Congress could refuse to accept Donald Trump Jr.'s invocation of the privilege?

The resolution of that question is more likely to be political than legal.

Tuesday, December 5, 2017

Randazza: The Neo-Nazi and The First Amendment

By Marc Randazza

Andrew Anglin, a neo-Nazi whom many online publications refer to as a vicious online troll, is being sued by a Jewish citizen of Whitefish, Montana. Tanya Gersh accuses him of invading her family’s privacy, urging his supporters to attack her family with hateful and death-threatening messages, and unleashing an online anti-Semitic trolling campaign against her, her relatives, her 12-year-old son, and other Jewish citizens of the local community.

I represent Anglin in this suit. I realize that Anglin’s story is full of controversy, hate, and nationalistic views, which he reportedly spread among his followers. However, the court may be on the verge of creating a dangerous precedent when deciding this lawsuit. Anglin has every right to ask people to share their views, even if those views are absolutely abhorrent.

The First Amendment protects unpopular speech and I firmly believe that everyone deserves their constitutional rights to be defended. Even though it appears that the neo-Nazi movement is gaining momentum in the US and evoking public disturbances, this fact should not be used as an excuse to forget that Anglin’s right to freedom of speech is granted by the First Amendment. Restricting it in court will impose severe damage on free speech in America.

In Anglin’s case, it is the shitty price we have to pay for freedom. The lawsuit is supposed to enter the pre-trial stage in December, so we will have to see how this case unfolds.

See coverage of Andrew Anglin’s story in the December’s issue of The Atlantic magazine.

Monday, December 4, 2017

Everybody Lies: FBI Edition

You, dear readers, know my advice about talking to the FBI: don't. If the FBI — or any law enforcement agency — asks to talk to you, say "No, I want to talk to my lawyer, I don't want to talk to you," and repeat as necessary. Do not talk to them "just to see what they want." Do not try to "set the facts straight." Do not try to outwit them. Do not explain that you have "nothing to hide."

Shut up, shut up, shut up, shut up, shut up, shut up.

This advice is on my mind of late what with two former Trump folks — George Popadopouluos and Michael Flynn — pleading guilty to the federal crime of lying to the FBI.

Plenty of people agree with me. Sometimes, though, I hear different advice. Sometimes I hear this:

No. Or more accurately: no, unless you have first prepared exhaustively with an attorney.

This is not a casual conversation about who took a bite out of the roll of cookie dough in the fridge. This is serious complicated stuff, and your whole life hangs in the balance. Platitudes aside, going into a law enforcement interview armed only with the attitude "I'll just tell the truth" is poor strategy.

Here's why.

No offense, but you may be a sociopath. If the FBI wants to interview you, it's possible you're some kind of Big Deal — a politician or a general or a mover and shaker of some description. If you're kind of a big deal, there's a significant possibility you're a sociopath. You really don't know how to tell the truth, except by coincidence. You understand what people mean when they say "tell the truth" but to you it's like someone saying you should smile during the interview. Really? Well, I'll try, I guess, if I remember. You've gotten to be a big deal by doing whatever is necessary and rather routinely lying. It may be difficult for you to focus and remember when you are lying because lying feels the same as telling the truth. If someone shoved me onto a stage and said to me, "look, just hit the high C cleanly during the solo," I could take a real sincere shot at it, but I wouldn't really know what I was doing. If you think you can go into an FBI interview and "just tell the truth," when it's not something you're used to doing, you're deluding yourself. You're not going to learn how in the next five minutes.

You're almost certainly human. There's a commandment about not bearing false witness. But rules don't become commandments because they're really easy to follow. They become commandments because we — we bunch of broken hooting apes — are prone to break them. Everybody lies. Humans lie more under pressure. FBI agents are trained in two dozen ways to ratchet up the pressure on you without getting out of their chair — verbal, nonverbal, tone, expression, pacing, subject changing, every trick that any cop ever used in the box. You're only human. Unprepared, you will likely lie. Smart people, dumb people, ditchdiggers and neurosurgeons, lawyers and accountants, the good and the bad, they all lie. Usually they lie about really stupid things that are easily disproved. I'm not making a normative judgment here; surely it would be nice if we didn't lie. I'm making a descriptive statement: humans lie. Saying "I'll just go in and tell the truth" is like saying "I'll just start being a good person." Well, good luck. Look, you admit to being fallible in other respects, right? You admit sometimes you're unkind when you're tired, or sometimes you drink or eat more than you know you should, or sometimes you procrastinate, or sometimes you have lust in your heart? What makes you think you're infallible about telling the truth?

Dumbass, you don't even know if you're lying or not. When an FBI agent is interviewing you, assume that that agent is exquisitely prepared. They probably already have proof about the answer of half the questions they're going to ask you. They have the receipts. They've listened to the tapes. They've read the emails. Recently. You, on the other hand, haven't thought about Oh Yeah That Thing for months or years, and you routinely forget birthdays and names and whether you had a doctor's appointment today and so forth. So, if you go in with "I'll just tell the truth," you're going to start answering questions based on your cold-memory unrefreshed holistic general concept of the subject, like an impressionistic painting by a dim third-grader. Will you say "I really don't remember" or "I would have to look at the emails" or "I'm not sure"? That would be smart. But we've established you're not smart, because you've set out to tell the truth to the FBI. You're dumb. So you're going to answer questions incorrectly, through bad memory. Sometimes you're going to go off on long detours and frolics based on entirely incorrect memories. You're going to be incorrect about things you wouldn't lie about if you remembered them. If you realize you got something wrong or that you may not be remembering right, you're going to get flustered, because it's the FBI, and remember even worse. But the FBI would never prosecute you for a false statement that was the result of a failed memory, right? Oh, my sweet country mouse. If you had talked to a lawyer first, that lawyer would have grilled you mercilessly for hours, helped you search for every potentially relevant document, reviewed every communication, inquired into every scenario, and dragged reliable memory kicking and screaming out the quicksand of your psyche.

You have no idea what you're telling the truth about. Look, you think that you can prepare to tell the truth. But at best you can prepare to tell the truth about something you know about and expect and understand. So let's say I know I'm going to be asked about whether I'm an ass on Twitter. I'm ready to come clean. I am definitely an ass on Twitter. But I get in there and the agent is all, "Mr. White, isn't it true that in October 1989 you accidentally hit on a major news anchor when you saw her from behind at the copy machine and thought she was another intern at CBS and so you sidled up for a full-on 'how YOU doin" and then she turned around and you saw who it was and you stammered something and spent several hours in the stairwell?" See, I was not mentally and emotionally prepared to tell the truth¹ about that. So we're off to the races. I went in with the best of intentions, I got sandbagged with something completely unexpected, I panicked like the grubby little human that I am, and I lied.

You can't even talk properly. If you're an attorney and you need to prepare someone for testimony, you know: we're a bunch of vague, meandering, imprecise assholes. We talk like a water balloon fight, sort of splashing the general vicinity of the answer. We don't correct questions with inaccurate premises that don't matter, we generalize and oversimplify and summarize and excerpt and use shorthand that only exists in our heads, and we do this all day every day in casual conversation. A huge amount of conversation goes on between the words and by implication. If I'm walking past your office and ask "did you eat?" I don't need to vocalize that I mean did you eat lunch and if not would you like to go to lunch. You can respond "I have a meeting" and I will understand that you mean you understand and acknowledge that I'm asking you to lunch but you are unable to go. Huge parts of our conversations are like that. Usually it doesn't matter. But if you can get charged with a federal crime if something you say is, taken literally, not true, it matters like crazy. It takes training and an act of will to testify — to listen to the question, to ask ourselves if we know what the question means, to ask ourselves if we know the answer to that question and not some other question it makes us think of, and to give a precise answer that directly answers the question. So not only do you have to go into that FBI interview and tell the truth — you have to be prepared for a level of precision and focus that you almost never use in your day-to-day communications.

You don't know if you're in trouble. You say "I'll just go and tell the truth." Well, if you mean "I'll just go confess to anything I've done wrong and take the consequences," that's one thing. But if you mean "I'll just tell the truth because I've done nothing wrong and I have nothing to hide," you're full of shit. You don't know if you've done something wrong yet. Do you know every federal criminal law? Have you applied every federal criminal law to every communication and meeting and enterprise you've engaged in for the last five years? "But . . . but . . . the FBI said they just wanted to talk about that meeting and there was nothing wrong with that meeting." Dumbass, you've got incomplete information. Not only do you not know if there was anything wrong about that meeting, you don't know if that's what they'll ask about. If you're saying "I'll talk to them because I have nothing to hide," you are not making an informed choice.

Everybody lies. Especially the FBI. Look, mate: the FBI gets to lie to you in interviews. They can lie to you about what other people said about you. The can lie to you about what they've seen in your emails. They can lie to you about what they can prove. They can lie to you about what they know. Authority figures barking lies at you can be confusing and upsetting and stressful. Our brain says "I didn't do that thing but they say they have emails so maybe did I do that thing or sort of that thing?" Many people react by blurting out more or less random shit or by panicking and lying. Do you have what it takes not to do that? Better be sure.

Remember: the FBI wins nearly any way. Confess to a crime? They got your confession. Lie? They almost certainly know you lied, and already have proof that your statement is a lie, and now they've used the investigation to create the crime.

The answer is to shut up and lawyer up. A qualified lawyer will grill you mercilessly and help you make an informed rational choice about whether to talk. Then, if you decide to talk, the lawyer will prepare you exhaustively for the interview so you can spot the pressure tactics and interrogation-room tricks, and so you will have refreshed your memory about what the truth is.

Your best intentions to tell the truth are a thin shield.

Monday, November 27, 2017

The Feckless Thuggery of Anthony Scaramucci's Defamation Threat

Anthony Scaramucci, former White House communications director, a man with a temper, a narrow-band vocabulary and an improbably inflated sense of Steve Bannon's flexibility, has threatened a defamation suit over a student op-ed in the Tufts Daily. The threat — made through Scaramucci's counsel, Sam Lieberman of Sadis & Goldberg LLP — is every bit as blustery and frivolous as the players and circumstances would suggest.

In the op-ed, Tufts student Camilo A. Caballero argued that Scaramucci should not sit on Tuft's Board of Advisors. Scaramucci's letter calls out several passages in the op-ed:

A man who is irresponsible, inconsistent, an unethical opportunist and who exuded the highest degree of disreputability should not be on the Fletcher Board.

This is Anthony Scaramucci, a man who began his infamously short career as the White House communications director by uttering profanity-laced comments on national news outlets, the man who sold his soul in contradiction to his own purported beliefs for a seat in that White House and a man who makes his Twitter accessible to friends interested in giving comfort to Holocaust deniers.

(The links in the second passage above are in the original piece.)

Scaramucci's letter also calls out Caballero's November 13, 2017 follow-up op-ed:

In addition, the administration has announced its intentions to invite Scaramucci to campus to discuss his “experiences in the private and public sectors, and lessons learned.” This invitation by Tufts and the Fletcher School, as the first statement/response they have put out since the student/faculty petition, the Tufts Daily op-ed and the Boston Globe article, is a way to give Scaramucci a platform to legitimize his unethical behavior.

. . .

But as we know now, Scaramucci has shown his intentions while in the White House as well as in his public statements that he cares about gaining attention and nothing more, and we should not let this distract us from what the administration wishes to avoid having to take up and answer.

Lieberman's letter on behalf of Scaramucci is frivolous, thuggish, and an example of the modern trend of people with money believing that they should be protected from criticism through abuse of the legal system.

As I've discussed here many times before, only provable statements of fact can be defamatory. An opinion that does not imply a provably false statement of fact cannot be defamatory and is absolutely protected by the First Amendment. Courts deciding whether a statement is potentially defamatory fact or absolutely protected opinion look at the totality of the circumstances, including the entire context and the viewpoint of people familiar with the publication and the figures discussed. Here, multiple factors rather conclusively establish that the statements Scaramucci complains of are protected opinion. First, the columns are expressly labeled as editorial and opinion. This isn't dispositive but strongly frames the context. Second, the editorials are about a controversial political figure. Courts are far more likely to interpret statements about politics and political figures as opinion rather than fact, and to treat comments therein as rhetorical hyperbole rather than as provable literal fact. Third, the statements are couched in heated rhetoric that makes it far more likely to be treated as opinion — it's difficult to imagine a court that would treat "sold his soul" as a statement of provable fact. Fourth, rather than implying undisclosed and potentially provably false facts, the author repeatedly offers links demonstrating the basis for his opinions. For instance, the statement that Scaramucci "sold his soul" is linked to a scathing opinion piece arguing that Scaramucci's acceptance of a job in the Trump administration contradicted his past rhetoric about the Republican party. Hence, "sold his soul" is clearly a characterization of Scaramucci's decision to accept a job — and notably Scaramucci's letter does not quarrel with any of the underlying factual assertions about what Scaramucci said before about the Republican party. Similarly, Scaramucci complains that the op-ed says he gave comfort on Twitter to Holocaust deniers. Once again, the author provided a link establishing what he was talking about — an imbecilic Scaramucci Post tweet asking Twitter users to vote on how many Jews were killed in the Holocaust, as if historical facts are resolved by a vote on a platform squirming with bigots and trolls. Once again, this is an argumentative characterization of Scaramucci's action, not a provably false statement of fact.

Lieberman's letter strains mightily to distinguish well-established law that would demonstrate that these claims are frivolous. For instance, Lieberman cites Van Liew v. Eliopoulos, 84 N.E.2d 898 (2017), a recent Massachusetts Court of Appeal case, for the proposition that accusing someone of "ethical violations" could be defamatory rather than merely opinion. That case is not remotely apt and the citation is highly misleading. In Van Liew, the plaintiff established that the defendant had made specific provably false statements of fact: that the plaintiff was under investigation by the Attorney General's office, that he lied to officials, and that his actions in connection with a sale of property were in violation of specific ethical rules governing his position as a public official. In other words, the case involved specific allegations about specific actions, not a general rhetorical allegation that the plaintiff was unethical. The citation to the case is empty and cynical.

Lieberman's letter also engages in a rhetorical trick I expect to see on Twitter and Reddit, not in a letter from an attorney. Lieberman cites a series of cases saying that accusing Scaramucci of lack of ethics is "defamation per se." But "defamation per se" refers to the doctrine that, with respect to certain types of defamation, the plaintiff need not specially prove damages, because some amount of damages will be presumed. The doctrine does not excuse the plaintiff from any of the other elements of a defamation case — like proving that the statement is a provably false statement of fact or that the speaker (in the case of a public figure) knew it was false or acted with reckless disregard as to its falsity.

Lieberman's letter ends by piling on more argument about Scaramucci's moronic Twitter poll about the Holocaust. This is simply insipid. The op-ed, which linked to the story about the tweet, self-evidently offers a non-provable opinion that taking Twitter polls about Holocaust deaths gives comfort to Holocaust deniers. As I've discussed here repeatedly before, characterizing someone's actions as racist is classic opinion. Lieberman cites Herlihy v. Metro. Museum of Art, 608 N.Y.S.2d 770 (1994) for the proposition that an accusation of antisemitism can be defamatory. Once again Lieberman is misleading the reader. In Herlihy the plaintiff accused the defendant of entirely fabricating a series of antisemitic statements by the plaintiff; the case did not involve a dispute over whether the plaintiff's actions could be characterized as racist. Put another way, the defamation there was claiming the plaintiff said something she didn't say at all, not arguing that her undisputed words made her racist.

Scaramucci's letter is vexatious, meritless, dishonest, and thuggish. A decent lawyer would not draft it and a decent man would not have it sent on his behalf. It represents the growing trend of the wealthy leveraging a broken legal system to suppress criticism. It is entirely consistent with Scaramucci's past conduct as a vain, bumbling lout, and inconsistent with his attempts to rehabilitate himself. For shame.

Wednesday, November 22, 2017

Popehat Signal: Ugh, Really? OK. Everyone Has A Right To Free Speech.

New Popehat Signal courtesy of Nigel Lew. Thanks, Nigel!

When I was about 11 a few other socially inept morally spavined twerps and I recorded fake radio shows on my primitive cassette tape machine. It was mostly fart jokes, inarticulate inside-baseball ridicule of people we didn't like, and snort-laughing.

I was born too soon. Apparently these days you can make thousands of dollars a month for that sort of thing.

Let me preface this with my biases: I hate everyone in this case. I hate their ethos. I hate their culture. I hate how they pollute American discourse. Based on a representative sample I hate their fans. They are the groin flop-sweat of wretched post-modernity, the web's genetic-cul-de-sac Morlocks gaping dumbly at the slimy shrill-voiced megaphones of the parties to this case.

Nevertheless, the case involves significant First Amendment issues, which may be resolved in a way that impairs everybody's rights unless the defendants have competent counsel, which these days is ruinously expensive. This is how rights are trammelled: when we don't defend them because the defendants at hand are loathsome. Therefore, I respectfully request assistance.

The case at hand involved "internet personality" George Ouzounian, known as "Maddox." Maddox has filed suit in New York state court, alleging a dog's breakfast of causes of action against defendants including other web personalities, their employers, web platform Patreon, one of Patreon's executives, and others. The heart of the case is a tiresome dispute amongst online "comics" who have various podcasts and publications. You can find (no doubt biased) backstories of the conflict places like here and here; they are every bit as incomprehensible and tedious as you would expect of obsessive chronicles of the drooling slap-fights of online trolls. The core of the complaint is the allegation that the defendants engaged in — or tolerated, or endorsed — a campaign of harassment against Maddox, a rival.

I don't claim that every act alleged in the complaint is protected by the First Amendment — I haven't done that thorough of an analysis. However, the complaint has many of the hallmarks of vexatious and frivolous litigation calculated to chill protected speech. It seeks to hold content providers liable for the loathsome online behavior of their fans. Even if some of the defendants' speech crosses the line into defamation (and I don't know whether it does), the complaint treats online satire, ridicule, and criticism as an undifferentiated mass, and unquestionably sweeps up a substantial amount of clearly protected speech. The complaint treats boycotts and calls for boycotts as actionable. It purports to hold Patreon and one of Patreon's executives liable for failure to kick the defendants off of the platform. It names one of the defendants' employers as a party, asserting that the employer is liable for the employee's obviously non-work-related dipshittery. It demands prior restraint on speech and court-mandated apologies, both of which are patently unconstitutional. These are all elements of bad-faith censorious litigation. If they are tolerated — even against utter turds like some of the defendants — they metastasize, become precedent, and can be used more freely against you and me and people everywhere.

As I often say in these Popehat Signal posts, even an utterly frivolous suit, shot through with clear indicia of bogosity, is cheap at easy to file but ruinously expensive to the vast majority of Americans to defend. That's how censorious thugs and litigation terrorists suppress speech — by leveraging a system that gives everyone, rich or poor, the right to spend tens of thousands of dollars on an adequate constitutional defense. The more they succeed, the more thugs will file suit.

One of the individual defendants, though employed, has a modest salary and is burdened by medical debt and has grave difficulty affording counsel. If you are a lawyer admitted in New York, please consider helping him, because we defend the First Amendment and everybody's rights when we defend the speech of vile people and push back against litigation abuse.

Thursday, November 9, 2017

Randazza: Even Trump has a right to free speech

By Marc Randazza

When then-presidential candidate Trump uttered the words, “Get’em out of here,” at one of his rallies, Trump’s supporters assaulted three anti-Trump protestors. The protestors now want to hold Trump liable for the assault, based on his speech alone.

While I do not approve of Trump’s words, I am honor-bound to defend his right to free speech, as I have oft repeated the famous Voltaire misquote: "I Disapprove of What You Say, But I Will Defend to the Death Your Right to Say It." I am disturbed that many people, including fellow free speech advocates, are willing to turn their back on this principle in this case. In my opinion, people are blinded by their negative views of Trump, so refuse to think critically on this issue, a problem I call Trump Derangement Syndrome (“TDS”).

The Sixth Circuit is now reviewing whether Trump’s words are actionable, and if these claims survive, it will chill free speech. I discuss this development in the case in my latest CNN column, which hopefully will be an immunity booster for any readers here suffering from TDS. See Even Trump has a right to free speech.

Tuesday, November 7, 2017

Hate Debate, Revisited

My debate with Elie Mystal on hate speech laws from earlier this year got turned into a More Perfect podcast episode. Fun.

Excerpts From The Congressional Testimony of Carter Page

Friday, November 3, 2017

California Supreme Court Adopts Ethical Rule Requiring Prosecutors To . . . Wait, How Was This Not Already A Rule?

Good news. Yesterday, the California Supreme Court approved revisions to the California Rules of Professional Conduct governing the ethical duties of prosecutors in California. The Revised Rule 5-110 includes the obligation to disclose exculpatory evidence (so-called Brady evidence, after Brady v. Maryland):

(D) Make timely disclosure to the defense of all evidence or information known to the prosecutor that the prosecutor knows or reasonably should know tends to negate the guilt of the accused, mitigate the offense, or mitigate the sentence, except when the prosecutor is relieved of this responsibility by a protective order of the tribunal;

The key part of the revised Rule is the note to it clarifying that the obligation is not based on a prosecutor's own assessment of the value of the exculpatory evidence:

[3] The disclosure obligations in paragraph (D) are not limited to evidence or information that is material as defined by Brady v. Maryland (1963) 373 U.S. 83 [83 S. Ct. 1194] and its progeny. For example, these obligations include, at a minimum, the duty to disclose impeachment evidence or information that a prosecutor knows or reasonably should know casts significant doubt on the accuracy or admissibility of witness testimony on which the prosecution intends to rely. Paragraph (D) does not require disclosure of information protected from disclosure by federal or California laws and rules, as interpreted by case law or court orders. Nothing in this rule is intended to be applied in a manner inconsistent with statutory and constitutional provisions governing discovery in California courts. A disclosure’s timeliness will vary with the circumstances, and paragraph (D) is not intended to impose timing requirements different from those established by statutes, procedural rules, court orders, and case law interpreting those authorities and the California and federal constitutions.

What does that mean? Prosecutors have an constitutional obligation to turn over evidence that tends to negate the defendant's guilt (so-called Brady) evidence) or undermine the credibility of the government's witnesses (so-called Giglio evidence). But some California prosecutors have asserted that the obligation only extends to evidence that they believe is material and turthful — that is, evidence that the prosecutor subjectively believes is credible could make a difference in the outcome of the case. But that's not the law; it's not for an advocate for one side to decide whether evidence is credible material or useful to the other side. There's been litigation over it, including a lawsuit by the ACLU against the Los Angeles County District Attorney's Office that led to changes in policy.

Though the California State Bar remains regrettably weak in imposing consequences on prosecutors for violations of their ethical and constitutional obligations, this revised rule is a stride in the right direction. The Rule reflects a clear judgment that prosecutors (at least state prosecutors — federal prosecutors have sometimes claimed that they are not bound by state ethical rules that contradict federal policy) can't withhold exculpatory evidence based on their subjective belief that it's not credible or not useful to the defense or wouldn't make a difference.

Congrats to the advocates who succeeded in pushing this Rule change through, including Professor Laurie Levenson.

Thursday, November 2, 2017

Sorry Facebook, Blasphemy Is Not Apolitical

Popehat is pleased to offer a third guest post by Sarah McLaughlin. Sarah works for the Foundation for Individual Rights in Education (though the opinions expressed here are her own) and is interested in free speech and civil liberties. You can follow her on Twitter at @sarahemclaugh. Her previous posts on blasphemy and speech issues are here and here.

This week, Twitter, Facebook, and Google officials testified before the Senate Intelligence Committee on the impact of Russia’s utilization of social media in the 2016 election. During a line of questioning about the pressure that governments put on Facebook to censor political content, Facebook VP and General Counsel Colin Stretch explained to Sen. Marco Rubio that Facebook geoblocks content when governments flag it as a violation of local law, making it unavailable to users in that country. Stretch provided Holocaust denial in Germany as an example.

When pressed by Rubio on whether Facebook would block political criticism at the request of a government entity, Stretch noted that Facebook takes a “nuanced approach” and promised that “political expression is at the core of what we provide.”

Then Stretch offered this curious comment: “In the vast majority of cases where we are on notice of locally illegal content, it has nothing to do with political expression. It’s things like blasphemy in parts of the world that prohibit blasphemy.”¹

Blasphemy is apolitical? That’s a stretch — and one that requires a near-willful misunderstanding of the reality of the speech targeted by blasphemy laws and religious speech itself. Stretch’s assertion deserves careful review considering both the power which Facebook yields over internet speech and the prevalence of blasphemy laws.²

When a government entity acts on its authority to determine how to classify blasphemous speech, it is inherently political: The state is determining which challenges are permitted to religious authorities, and which are not, and which belief systems deserve forced reverence, and which do not. And the more religion is entrenched in a system of governance, the harder it is to separate religious criticisms from political ones.

In May, The Guardian decried the ease with which Indonesia’s blasphemy law has been wielded as a political cudgel. Ahok, Jakarta’s Christian governor, was awarded a harsh two-year jail sentence for quoting the Quran to voters in an allegedly deceiving way. Months later, an Indonesian doctor took to Facebook to criticize protesters who demanded Ahok’s imprisonment. He, too, was brought up on blasphemy charges. Is this speech — which led to the arrest of two men under Indonesia’s blasphemy laws — the kind that Facebook believes has “nothing to do with political expression”?

It’s worth nothing that Indonesia’s law is likely to become even more expansive. A draft bill set to be discussed this year would punish under Indonesia’s blasphemy law “[e]veryone who persuades another person to leave his or her confessed faith” and “[e]veryone who deliberately persuades and provokes other people to reject the existence of adherents of a particular religion.” It’s easy to imagine the vast array of speech that would be criminalized under such an expansive definition of blasphemy.

And in Pakistan — where blasphemers can face the death penalty — merely criticizing the blasphemy law itself can violate the blasphemy law. How convenient. Late last year, a blasphemy case was registered against Shaan Taseer — son of governor Salmaan Taseer, who was murdered by his bodyguard for speaking out against Pakistan’s blasphemy law — after Shaan posted a video in which he called for the repeal of the blasphemy law and the release of Christians imprisoned in Pakistan for blasphemy charges. This is without a doubt political speech — and it is illegal under Pakistan’s brutal blasphemy law.

What about speech discussing animal slaughter? Is that political? In 2016, an Egyptian court handed down a three-year jail sentence to a columnist found guilty of blasphemy for a Facebook post decrying what she perceived as a ritualistic sheep slaughter.

Or what about activist Raif Badawi, who was sentenced to 10 years in prison and 1,000 lashes for blasphemy charges for the crime of running a website dedicated to engaging in religious and political debate within Saudi Arabia? Is that a simple case of blasphemy, devoid of all political expression? Clearly not. Again and again, governments prove that blasphemy laws are malleable tools just begging to be abused.

Putting that aside, it is unclear why Stretch seems to believe that it would be more problematic for Facebook to remove “political expression” than “blasphemy.” Assuming that the two could be clearly demarcated, is it really that much better to remove a personal statement about faith rather than a political declaration?

Ultimately, regardless of the wisdom or morality of its stance, Facebook can censor whatever speech it wants, whether requests for censorship come from individual users or government entities. But Facebook’s argument that censorship of the “blasphemous” is discernible from censorship of the “political” should be met with derision.

Popehat's past coverage of how blasphemy laws are used to abuse political, racial and religious minorities can be found here.

Monday, October 30, 2017

Lawsplainer: The George Papadopoulos Guilty Plea

This morning the United States District Court for the District of Columbia unsealed a criminal proceeding against George Papadopoulos, who acted as a foreign policy adviser to the President's 2016 campaign. We can tell some interesting things from these documents. You have questions, I have answers.

Wait! The case was sealed? How does that happen?

Federal courts can seal proceedings — that is, arrange so they are not public and do not appear on the public document. It is not uncommon to seal a proceeding against a defendant who is cooperating against other defendants or targets of the investigation. Here the record suggests that Papadopoulos cooperated immediately and the Special Counsel was anticipating his cooperation.

The now-unsealed docket shows that the Special Counsel filed a complaint and obtained an arrest warrant on July 28, 2017, and asked that the complaint be sealed from the beginning. The affidavit in support of the complaint describes the investigation. The FBI arrested Papadopoulos in Virginia on August 1, 2017. Under normal circumstances this would start the clock for multiple proceedings – a proceeding to send Papadopoulos from Virginia where he was arrested to DC where he was charged and a timeline to either hold a preliminary hearing (which almost never happens in federal court) or more likely indict him. None of that happened, because Papadopoulos immediately agreed to waive all his rights under the applicable rules and agreed that the proceedings would remain sealed. All of that shows that he cooperated immediately.

So what did he plead to?

Papadopoulos pled to an information charging him with lying to the FBI in violation of Title 18, United States Code, Section 1001. In federal court, you have a right to a grand jury indictment in a felony case, but Papadopoulos waived that right, allowing the more informal information as a charging instrument. Papadopoulos entered into a fairly straightforward and standard plea agreement, agreed to and accepted a statement of facts about what he did, and entered his plea before the United States District Court for the District of Columbia on October 5, 2017. By stipulation of the parties the court maintained the proceedings under seal until today.

What can we glean from the fact that the Court kept the case under seal?

Papadopoulos' cooperation is central to his plea. The plea agreement provides that the government will bring his cooperation to the Court's attention at sentencing and that sentencing will be delayed until his cooperation is complete. It is possible, though not certain, that the Special Counsel used Papadopoulos for "active" cooperation — for instance, by making recorded calls to targets of the investigation, engaging in monitored email exchanges with targets, or even wearing a wire during meetings with targets. Keeping the entire proceeding under seal for a month after his plea is consistent with such cooperation. However, that level of cooperation isn't certain: it could be that they considered using him for such activities but didn't, or that they wanted to keep the nature and direction of the investigation secret until now. But it's clear that they contemplate using him against other targets of the investigation one way or another.

So what did he do, anyway?

According to the affidavit in support of the complaint and the factual statement he accepted, Papadopoulos lied to FBI agents during a January 27, 2017 meeting (note that's before the appointment of the special prosecutor) about his interactions with Russian nationals in connection with his role in the Trump campaign. Specifically, he lied about the nature and extent of his contacts with Russians during the campaign. He told the FBI that Russians offered "dirt" on Hillary Clinton in the form of "thousands of emails" before he joined the Trump campaign, when it was actually after, and characterized conversations with Russians as minor in consequential when they were actually extensive. In addition, after a second interview with the FBI in February 2017, Papadopoulos deleted a Facebook account which contained some of his communications with the Russian nationals, and created a new one. The FBI was nonplussed.

So did he actually obstruct justice or interfere with the investigation through his lies?

Almost certainly not. The complaint shows that the FBI used a search warrant to get emails that contradicted Papadopoulos. The timeline isn't explicit, but it's possible — in fact, probable — that they had the emails or other evidence before they even interviewed him, and knew he was lying at the time. To convict on a Section 1001 charge for lying to the government, the government doesn't have to prove that you successfully lied or that the lie delayed or impeded them. They only have to prove that the lie was on a subject of the sort that could be relevant to the investigation. That's why interviewing subjects and targets hoping they will lie to you and thus make a case for you is a common tactic in federal investigations.

If Papadopoulos had shut up and refused to talk to the FBI — the smart thing to do — he almost certainly would not be charged with anything yet, and could have escaped any charges ever. He had to plead to a federal felony because he talked to the FBI and lied, and then foolishly tried to destroy evidence. That is a feature, not a bug, of federal investigations.

What happens to him from here?

He'll hang out in limbo — having entered a guilty plea but with no sentencing hearing yet — until the Special Counsel is finished with his cooperation. So long as his sentencing isn't scheduled you'll know that the Special Counsel thinks that they still might need his cooperation, probably in the form of testimony.

Is he going to jail?

I doubt it. Though the maximum statutory penalty for the crime he pled to is five years, the recommended sentence under the U.S. Sentencing Guidelines is a few months, or probation — the government admits that in the plea agreement. This is, once again, why you should not pay attention to the maximum possible sentence on federal crimes when the media reports them. The very highly probable result is probation, even if he hadn't cooperated. That calls into question, a bit, what his motivation is to cooperate further. It suggests — but does not prove — that the government had other charges that it could have brought, and agreed not to bring them in exchange for his ongoing cooperation. Or he's so terrified of a few months in jail that he wants to buy nearer-to-certainty that he'll get probation.

What does this show about the nature and status of the Special Counsel's investigation into whether the Trump Campaign improperly communicated with Russians?

It shows that the FBI was investigating the Trump campaign's contact with the Russians not later than January 2017, that the Special Counsel continued that investigation, that they've obtained emails showing communications by at least some people with Russians, that Russians told campaign representatives that the Russians had "dirt" in the form of emails about Clinton, and that the Special Counsel is (for now) continuing the investigation.

Lawsplainer: The Manafort/Gates Indictment

Special Counsel Robert S. Mueller has secured a substantial indictment against former Trump campaign chair Paul Manafort and his colleague Richard Gates. The indictment is many places online including here.

So the federal grand jury looked at all of the evidence against Manafort and selected these charges against him and Gates?

No. As I've explained in past lawsplainers, that's not how grand juries work. The prosecutor — here the Special Counsel — selects what evidence to present to the grand jury, selects the proposed charges, and drafts and presents the proposed indictment to the grand jury. The grand jury does nothing but vote to agree that there's probable cause to bring these charges. The grand jury is more accurately viewed as a tool rather than as a significant limit on prosecutorial power.

So what are they charged with?

The Manafort/Gates indictment is a fairly standard "kitchen sink" white collar indictment that illustrates the wide array of tools available to federal prosecutors, as well as the power prosecutors have to use an investigation to provoke further federal crimes as leverage against the foolish.

The lead charge is conspiracy (1) to defraud the United States and (2) to fail to file reports of foreign bank accounts, to act as an unregistered agent of a foreign principal, and to make false statements to the government, all in violation of Title 18, United States Code, Section 371 Section 371 is commonly used to describe a conspiracy to violate a particular federal statute — like a conspiracy to distribute drugs or rob a bank. This indictment does that — it says Manafort and Gates conspired to violate federal statutes — but also uses the less familiar "defraud the United States" language of the statute. To secure a conviction on this charge the government must prove (1) that there was an agreement between two or more people to pursue an unlawful objective (like a violation of a federal statute or fraud against the federal government), (2) that the particular defendant knew of the unlawful objective and voluntarily agreement to join the conspiracy, and (3) that someone committed an "overt act" — a step towards the conspiracy's objective. The government's theory is that Manafort and Gates conspired to hide their foreign agent status, hide their foreign agent income, and launder the proceeds.

The second charge is a conspiracy to launder money in violation of Title 18, United States Code, Section 1956(h). To prove this charge, the government must prove that (1) there was an agreement to commit money laundering, and (2) the defendant joined the agreement knowing its purpose and intending to further it. But what's money laundering when it's at home, you ask? It can numerous types of transactions with money derived from a "Specified Unlawful Activity" or used to promote or hide such an activity — that is, an activity listed in Title 18, United States Code, Section 1956(c)(7), one of which is "any felony violation of the Foreign Agents Registration Act of 1938." The government has two theories of how Manafort and Gates conspired to launder money: (1) they conspired to move money into the United States to promote the carrying on of violations of the Foreign Agents Registration Act, and (2) they engaged in transactions with proceeds of violations of proceeds of the Foreign Agents Registration Act in order to hide those violations and evade taxes.

The third set of charges (counts Three through Six) asserts that Manafort failed to file mandatory reports of his ownership of foreign bank accounts as required by Title 31, United States Code, Section 5314, which is a felony. This requires the government to prove that Manafort knowingly and intentionally evaded the foreign bank account reporting requirements.

The fourth set of charges (counts Seven through Nine) charges Gates with failing to file mandatory reports of foreign bank accounts, also under Section 5322.

The fifth charge (Count Ten) accuses Manafort and Gates of failing to file a statement of registration as a foreign agent as required by Title 22, United States Code, Section 612, which is a felony. Once again the government must prove that Manafort and Gates knowingly and intentionally failed to file the registration (which requires showing they were required to register and they knew it.)

The sixth charge (Count Eleven) accuses Manafort and Gates of making false statements about foreign agent registration, again in violation of Title 22, United States Code, Section 612 and 618. Once again the government has to show that the defendants knowingly and intentionally made false statements to the government about agent registration. Based on the language of the indictment, it appears that the alleged false statements were made after the Department of Justice investigation of their agent status began in November 2016 — in other words, the false statements were allegedly made to cover up the crime. Why does nobody shut up?

The seventh charge (Count Twelve) accuses Manafort and Gates of lying to government investigators in violation of Title 18, United States Code, Section 1001, based on the same lies about agent status. Once again the government has to prove that the defendants knowingly and intentionally lied to the government. Section 1001 is one of the favorite weapons in the government arsenal, frequently employed to trip up people too foolish to shut up.

There's a lot of additional details — alleged lies to banks, alleged lies to accountants, alleged lies to the IRS — but that's the heart of the government's theory: they acted as foreign agents, didn't registrar as they were required to, lied about it when asked, and brought the proceeds into the country to hide the proceeds, hide the agent activity, and evade taxes. This is Serious Business, no consolation-prize indictment.

How much time to Manafort and Gates face?

You're going to see a lot of journalists answering this question by adding up the maximum possible sentence Manafort and Gates face under all of the things they are charged with. That's very misleading. If convicted, the heartland of the likely sentencing range — the point the judge will start out before deciding if the facts justify going higher or lower — will be calculated under the United States Sentencing Guidelines. Especially in a case like this, that calculation will be as complex and multi-factored as a medium-sized business tax return. If there is a sentence, it will almost certainly bear no relation to the maximum potential sentence.

So what happens next?

Manafort and Gates will be booked and will make their initial appearance before a United States Magistrate Judge, probably this afternoon. They'll be released based on some sort of bail under the Bail Reform Act, which will provoke uninformed outrage. The fact that they were allowed to surrender suggests that the Special Counsel won't seek high bail — they may even be released on their own recognizance without bail, or may only be required to sign a signature bond (a promise to pay money if they don't show up), but may be required to post money or property to secure their return. That could get interesting, as the Special Prosecutor can make them demonstrate that the money or property they post is not derived from ill-gotten gains. Eventually — possibly at their first appearance, more likely at a late appearance — they will be arraigned (formally informed of the charges against them) and enter their not guilty pleas. Then the schedule will be determined by the United States District Judge to whom the case is assigned. Under the Speedy Trial Act they have a right to trial within 70 days of their first appearance, absent application of a host of exceptions that are almost always applied. It's likely that everyone will agree to a much later trial.