My Style - Reclaim My Identity : 2018

Tuesday, December 18, 2018

Alan Dershowitz Is Lying To You

Alan Dershowitz, famed Harvard Law School professor and successful trial and appellate lawyer, is lying to you.

He's lying about American law — the subject he ostensibly teaches, the subject on which he is called upon as an expert — for partisan reasons, in order to defend President Trump and discredit Special Counsel Robert Mueller. He's lying repeatedly, shamelessly, and angrily.

Professor Dershowitz's lies are, appropriately enough, of a professorial sort. Trading on his reputation as a legal titan, he's offering normative views (what the law should be) as descriptive views (what the law is.) This is a familiar problem; a few years ago I described it in the context of professors talking about what is or isn't covered by the First Amendment:

Trope Eight: "[Professor] explained . . . ."

Example: "The exhibit of cartoons in Texas might have crossed the line, [Professor] Szmer said."

The media loves to quote a professor to support a viewpoint. This is intellectually neutral: it can be good or bad, depending on the honesty and qualifications of the professor selected.

Quoting professors about law is particularly risky, if your aim is an accurate and informative discussion of free speech law. If you call a physics professor and ask them what will happen if you drop your pencil, and why, he or she will say "it will fall, because of gravity." There is a relatively low chance that the professor will tell you "well, maybe nothing will happen" because he or she harbors the belief that the current gravitic regime is unfair and otherwise problematical. But when you call a professor of law, or political science, or journalism, and ask them a question about whether some controversial speech is protected by the First Amendment, there is an unacceptably high probability that you will get a quote expressing what the professor thinks the law ought to be. Sometimes the professor will flag a statement as an argumentative one, sometimes not. Moreover, some professors . . . . how can one put this delicately? Some law professors' views on how a court is likely to rule on an issue are untainted by exposure to actual courts.

Many professors will give you a sober, accurate and well-informed assessment of how a court would likely approach a given free speech situation. The trick is separating those professors from ones who are out of their field or mere advocates.

Alan Dershowitz, in describing the Special Counsel investigation, is posing as a subject-matter expert but acting like an advocate — and a dishonest one.

The subject of Professor Dershowitz's dishonesty — for the purpose of this essay — is General Michael Flynn's lies to FBI agents and his subsequent guilty plea for lying under 18 U.S.C. section 1001. Professor Dershowitz has asserted, repeatedly, that Flynn did not violate Section 1001 because his lies were not "material" — that is, meaningful. He claims that the lies were not "material" because the FBI knew at the time Flynn was lying, and was not fooled. This is what he said on Fox:

“I hope the judge understands when he has the case tomorrow that Flynn did not commit a crime by lying,” Dershowitz told Fox News host Bill Hemmer. “Because the lie has to be material to the investigation. And if the FBI already knew the answer to the question and only asked him the question in order to give him an opportunity to lie, his answer — even if false — was not material to the investigation.”

Legal analysis on TV is tough; there's very little time to make a complicated point. But Dershowitz has promoted the same point explicitly in writing:

When questioning any suspect, officials should not ask questions whose answers they already know, for the sole purpose of seeing whether the suspect will lie. If they do ask such questions, untruthful answers should not be deemed “material” to the investigation, because the FBI already knew the truth.

This is a perfectly arguable statement of what the law should be. But someone reading Dershowitz's column could be forgiving for thinking that's what the law is — or, at least, that the law is unsettled on the point. The essay utterly fails to divulge that every court to consider the argument has rejected it. Amusingly, Dershowitz's essay asserts that "the first casualty of hyper partisanship is nuance." Apparently the nuance of revealing that your argument has been repeatedly rebuffed was one of those early battlefield deaths.

So: Professor Dershowitz' proposition is that a lie is not material under Section 1001 if the government actor lied to already knows the truth. Every court to consider this argument — and there have been many — has flatly rejected it. See United States v. Mercedes, 401 F. App'x 619, 620 (2d Cir. 2010) (rejecting argument that false statement about citizenship could not have been material because interviewing agent had already "ruled out the possibility of relying on the statement"); United States v. Moore, 708 F.3d 639, 649 (5th Cir. 2013) ("A statement can be material even if the agency already knew the answers given by the defendant and even if the receiving agent knows they are false."); United States v. LeMaster, 54 F.3d 1224, 1230–31 (6th Cir. 1995) "It is irrelevant what the agent who heard the statement knew at the time the statement was made. A false statement can be material even if the agent to whom it is made knows that it is false." ("The fact that the FBI already knew that LeMaster received $6,000 in cash from Spurrier did not affect the materiality of his false statement to the FBI. A false statement 1231 can be material even if the agent to whom it is made knows that it is false."); United States v. Whitaker, 848 F.2d 914, 916 (8th Cir. 1988)("A false statement 1231 can be material even if the agent to whom it is made knows that it is false."); United States v. Goldfine, 538 F.2d 815, 820 (9th Cir. 1976) ("Darrell Goldfine contends, however, that since the Compliance Investigators knew the answer and were not misled by the falsity, the statement was not materially false. . . . [T]he statement here was clearly material.")United States v. Henderson, 893 F.3d 1338, 1351 (11th Cir. 2018) ("Indeed, a false statement can be material even if the decision maker actually knew or should have known that the statement was false.”)

I am not aware of any cases construing Section 1001 that go the other way. Nor is there any credible indication that the United States Supreme Court would go the other way and decide that a false statement to the government does not violate Section 1001 if the government already knows that it is false. To the contrary, the Court has signaled that it would reject that argument. In Brogan v. United States, 522 U.S. 398 (1998), the Supreme Court rejected the argument that there is an "exculpatory no" defense to Section 1001 — that is, the idea that you don't violate Section 1001 if you say "no" when the government asks you if you committed a crime. Rejecting the argument that the statute or the Fifth Amendment required such a defense, the Court also rejected the argument that the investigator's gullibility or lack thereof should be a factor:

Certainly the investigation of wrongdoing is a proper governmental function; and since it is the very purpose of an investigation to uncover the truth, any falsehood relating to the subject of the investigation perverts that function. It could be argued, perhaps, that a disbelieved falsehood does not pervert an investigation. But making the existence of this crime turn upon the credulousness of the federal investigator (or the persuasiveness of the liar) would be exceedingly strange; such a defense to the analogous crime of perjury is certainly unheard of. (Id. at 402.)

In short, there is no credible argument that Alan Dershowitz's repeated assertion is a correct statement of the law. It would be malpractice to advise a client that way. It would be deceitful to tell students. And it's dishonest to tell the nation without telling them that this is your theory of what the law should be, without revealing what the law is. Advocates push the boundaries of the law. They ought to. But honest advocacy doesn't involve lying about the current state of the law. Indeed, lawyers have an ethical obligation to reveal contrary authority when arguing in court, and judges will burn you down to the ground if you don't. I would argue that legal experts — who trade on their reputation for knowing what the law is — have a similar ethical obligation to reveal when existing law flatly contradicts what they are arguing. That's particularly true where, as here, Dershowitz's argument hasn't just not succeeded yet — it's been repeatedly, specifically called wrong by every court to take it up.

The law is clear: the FBI can find irrefutable evidence of a crime, interview you about it, collect lies that it knows are lies and that do not deter it for a second, and then have you charged with lying under Section 1001. Is this what the law should be? No. I think it is not. I've been complaining for years that this definition of materiality lets the government, in effect, manufacture crimes. I've written about how it creates incentives for investigators to conduct interviews for the purposes of soliciting lies when they can't prove an underlying crime. I've pointed out how it's been key to numerous prominent prosecutions. I think it gives the government dangerous and excessive power. But here's the difference: I have not lied to you about what the law is. I've told you what the law is and why I think it's wrong. That's what an ethical "legal expert" should do.

Alan Dershowitz is brilliant and experienced. This is not a failure of knowledge. This is a failure of character.

Friday, November 30, 2018

GRAAAAAAAAAANNNNNNNNTTTTTTTTTTTT

Wednesday, October 31, 2018

This Week on ATPL: IS IT RICO?

This week on All The President's Lawyers: what if it IS RICO? Also, can you charge $63,000 for a fees motion?

Tuesday, October 30, 2018

Randazza: Damn right we should get rid of birthright citizenship

by Marc J. Randazza

American citizenship is one of the most coveted statuses that mankind has ever invented. A majority of the 7 billion people on this planet would gladly swap their passport for a nice blue one with a gold eagle on its cover. And how do you get it? For the most part, you get it by being born in the right place or to the right parents. Yeah, there's naturalization … but only about 20 million citizens, out of 350 million are naturalized. In other words, those who become “Americans by choice” are almost statistically insignificant. Even then, I think that the path to citizenship is nothing more than a bureaucratic game — and doesn’t really confer citizenship upon the “deserving.”

Therefore, I agree with President Trump — we should get rid of birthright citizenship. But, I believe we should get rid of it for EVERYONE. Open the gates of citizenship to everyone as well — even illegal immigrants — on the same terms as are offered to someone whose entire family tree grew from the planks of The Mayflower.

The problem in this country is not that Mexicans are streaming across the border to have anchor babies.

We had a huge flood of immigration in the early 20th century, and but for that immigration, America wouldn’t be half the country it is today. Immigration is not the problem. The problem is that so many of our home-grown citizens are stagnant, lazy, and stupid (and yes, so are many of our new arrivals). So how do we separate the wheat from the chaff?

We should have a “point system” for how much citizenship you get, with completely open borders. This country is built on freedom and competition, right? Let’s inject competition into the citizenship market!

We would each earn between 0-100 citizenship points. 50 points, you’re a citizen. At 75 points, you get Bronze Citizenship, 85 points you get Silver Citizenship, and at 95 points you get Gold Citizenship. Anyone who hits 100 points even, gets Super Eagle Citizenship.

If you have one of the higher-status citizenship categories, you get certain privileges — maybe no TSA lines for you. You can carry a gun anywhere you want. You can cut in line at the DMV or other government agencies. All men will still be created equal, but some can earn status that makes them quantifiably superior — at least in terms of the rights they get.

You get 5 points for being born to an American parent, so there is a little bit of legacy preference, but not a lot.

You get a certain number of points for having a full time job, graduating from high school, for paying your taxes, etc. Essentially, a few points for doing the stuff that we expect all productive members of society to do. Certain crimes and assorted other fuckups can cost you points.

If you do absolutely everything that you’re supposed to do, but nothing special, you probably wind up somewhere in the neighborhood of 65 points. No special privileges, but a good padding above full citizenship so that one or two screw ups won’t cost you your citizenship.

You get a certain number of extra points for graduating from college, a masters program, or a PhD program. We could give more points for more useful degrees, so yeah, get that MA in Victim Studies, but don’t think that it is going to make you more valuable to us than a nursing degree or an engineering degree, because it ain’t. A law degree, sadly speaking, might not be worth a whole lot.

You get bonus points for truly kicking in to improve America. You author a book. You start a business that employs a certain number of people. You invent something useful. You cut a bad ass album. You fill in potholes. The details can be tweaked as much as we like – but the concept is the same. You get points for being worthwhile and making America greater. If you contribute to America sucking, then you lose points.

It wouldn’t be wholly economically based — as there are non-financial contributions that indicate a desirable citizen. You save a puppy from a burning building. You use that law degree to handle a meaningful pro bono case. Joining the military gets you some extra points. Medals get you points too. Congressional Medal of Honor gets you 10 points that you can’t ever lose. But, unlike Starship Troopers, service alone does not guarantee citizenship (but it helps).

You lose points by being convicted of crimes, but also by douchetastic behavior that we don’t necessarily criminalize. You hog the left hand lane on the highway, you lose a point every time you do that. Lie about who your kid's dad is, you don't go to jail, but you're not going toward higher status with that behavior, missy. Dude, you sexually assault someone, and we can't necessarily prove it sufficiently to put you in jail, we might still be able to dock you some points. If you put a dog in a stroller, you lose 5 points. If you have an "emotional support animal," you lose 5 points. Because fuck you, you're fucking useless. Holy shit, if you incorrectly use the phrase "fire in a crowded theater," you're losing a few points, my friend. SO FUCKING READ HOLMES OR TO THE UNDERCLASS YOU GO, YOU INTELLECTUAL PEASANT!

Of course, you can be "useful" in some ways that won't necessarily help you points-wise. This system will be as disengaged from the economic system as it can be. Maybe if you make your living by flipping houses or by raiding companies and selling their assets off and laying off the whole workforce, we can dock you a few points. You can still be rich with lower status, but having more money in the bank won’t buy you citizenship points. More money to you, but you’re not getting any closer to being an Eagle.

You can’t serve as a judge, in public office, as a cop, or a lawyer unless you have at least Silver (75 points). In fact, maybe elected offices, and even appointed positions, require a certain status. I like the idea of using this to punish non-violent crimes as well. Why lock people up, if they have committed some crime, but are really not a danger to society? Prison populations would crash, and that's a great thing.

If you have less than 50 points, the Constitution doesn’t fully apply to you. Maybe some provisions apply at 10 points or so, but you’re not a full citizen, you don’t get full protection. Certain geographic areas would be closed to people below a certain number of points. You sure as hell don’t get to vote if you’re under 50 points.

If you are over 25 years old and you have less than 10 points, you get nothing. No First Amendment, no Fourth Amendment, no nothing. Essentially, you’re on probation. You have to move out of the way for citizens when you are in line at the store. You don’t get to drive. If your points get to zero, we give you a choice of moving to another country (never to return) or prison — but in Prison, you can earn points and get yourself out. But, if you're a grown man or woman and you can't get at least 10 points, you aren't worth much, so you shouldn't get much.

With this plan, we open the borders and welcome everyone. Certain immigrants get to start with a few points. Perhaps you did some act of service to the United States, like saving American soldiers from kidnappers. You win a Nobel Prize, you get 25 points just to move here. But, your average immigrant gets only a point or two for checking in at the border and letting us know he’s here. A truly worthy immigrant – the kind we want, can earn 50 points in 5 years or less, and within a few decades can even be eligible to run for president. A crappy one will find life here to be very unpleasant, as will a home-grown loser, who might find it more desirable to just leave – thus making room for more worthy immigrants.

So, Donald, you wanna do this? Lets really do it!

Thursday, October 4, 2018

LAWSPLAINER: No, Kavanaugh's Confirmation Won't Free All Of Trump's Crimimous Minions Through An Obscure Double Jeopardy Case

I should not have to do this. But here we are.

There's a political rumor/meme/argument going around in the last couple of weeks among people opposed to Judge Kavanaugh's confirmation to the Supreme Court. It's a theory that Trump is rushing Kavanaugh onto the Court so he can rule on an obscure double jeopardy case and open the way for Trump to pardon his underlings in a way that prevents them from being prosecuted by the states. Josh Barro and I knocked it down in this week's edition of All The President's Lawyers. But it persists. NBC has a column pushing it today. It's become so widespread that Snopes has gotten into the act, sort of explaining the structure of it and giving it undeserved cachet.

Here's the problem: the theory is wrong, or at least, wildly exaggerated in certainty and significance.

Here's why.

The issue at hand is the Double Jeopardy Clause of the Fifth Amendment, which says the government can't "for the same offence . . . .be twice put in jeopardy of life or limb." Most commonly double jeopardy means that the government can't charge you again with the same thing after they lose at trial. There's a notorious exception to it called the "Separate Sovereigns" or "Dual Sovereignty" Doctrine. Under this doctrine, different "sovereigns" can try you for the same crime because they have separate interests in punishing the crime. This most commonly allows the federal government and a state to prosecute you for the same crime, on the theory that they have distinct interests and reasons to do so. This famously happened when the federal government prosecuted the police officers who beat Rodney King even after they were acquitted in state court.

The Dual Sovereignty Doctrine has always been controversial and somewhat unpopular. This term, the Supreme Court agreed to hear a case in which it could overturn the Dual Sovereignty Doctrine. That case is Gamble v. United States — you can read all about it here, on the indispensable SCOTUSblog.

The theory/meme/warning goes like this: Trump wants Kavanaugh on the Court immediately, so Kavanaugh can hear Gamble and vote to wipe out the Dual Sovereignty Doctrine, and then, once Trump pardons his various relatives and underlings and lawyers for federal crimes, they will no longer be subject to state prosecution for the same crimes. He'll be able to spare his whole criminal enterprise! It's obstruction/RICO!

No.

There's a bunch of things wrong with this wild-eyed theory.

Let's start with the fact that the Dual Sovereignty Doctrine has never been a clean left/right conservative/liberal issue. This isn't a situation where it's clear there's a 4/4 split and the conservative Judge Kavanaugh is needed to break it. So, for instance, in Heath v. Alabama in 1985, when the question was whether to extend the doctrine to two separate states prosecuting the same crime, seven justices extended it; the two who dissented were Brennan and Marshall, the liberals. In 2016, the issue returned to the Supreme Court in Puerto Rico v. Sanchez Vale. There the issue was whether the Dual Sovereignty Doctrine applied to Puerto Rico — is Puerto Rico, as a territory of the United States, a "separate sovereign" from the United States, or not? The Court held that Puerto Rico was not separate for these purposes and thus Puerto Rico and the United States could not prosecute someone for the same crime. Justices Ginsburg and Thomas — hardly ideological allies – concurred, but questioned whether the Supreme Court should revisit the viability of the Separate Sovereignty Doctrine. "I write only to flag a larger question that bears fresh examination in an appropriate case. The double jeopardy proscription is intended to shield individuals from the harassment of multiple prosecutions for the same misconduct . . . . Current “separate sovereigns” doctrine hardly serves that objective." (Ginsburgh, joined by Thomas, concurring.) The other justices did not question the doctrine. Thus, if the Doctrine is in serious danger of being overturned (and two justices questioning it is not enough to say that it is), it's in danger not just from the right, but from the left. And because it's not a clean left/right issue, we can't assume we know where Kavanaugh would come down on it.

More importantly, though, the connection between the doctrine and Trump pardons is bunk.

Double Jeopardy prevents successive prosecutions for the same crime, not related crimes. So — even if Kavanaugh swung the Supreme Court to overturn the Separate Sovereigns Doctrine, and even if Trump then went on a pardoning rampage to spare Ostrich Jacket and Idiot Lawyer and Junior and Dummy and so forth — Tump's pardon would only prevent state prosecution for the same crime that Trump pardoned them for federally. What's the "same crime?" Under the so-called Blockburger rule, two crimes are not the "same" if each one requires proof of an element that the other does not — that is, if each has at least one unique element. So: Trump's pardon can only prevent state prosecutions to the extent the state crimes have the same elements as the federal crimes he's pardoning. They usually don't. Gamble, the litigant in the case before the Court, points this out himself:

Because this Court deems two crimes to be different offenses any time “each offense contains an element not contained in the
other,” Dixon, at 696 (discussing Blockburger, 284 U.S. at 304), it will still be the unusual case in which the federal and state governments may not both bring some charge based on the same criminal occurrence.

Similarly, the Thurgood Marshall Civil Rights Center filed a friend of the Court brief in support of neither party laying out historical issues for the Court. That Center has a historical interest in civil rights laws, which have often involved Dual Sovereignty Doctrine prosecutions (as it did in the Rodney King case). The center concurs that overturning the doctrine would not prevent dual prosecutions:

Under Blockburger v. United States, federal civil rights statutes concerning law enforcement misconduct are not the “same offense” as State
statutes that may cover the same or similar underlying conduct. Thus, overruling dual sovereignty should not eliminate the federal government’s ability to prosecute these types of civil rights cases after the State has previously prosecuted a case that was tried to verdict.

So: even if Kavanaugh helps overturn the Dual Sovereignty Doctrine, Trump cannot insulate his underlings with pardons — particularly because many of them face uniquely state-law issues, like state tax violations or violations of other state laws. Could Trump pardons preclude state prosecution for some state crimes that are identical to federal crimes? Yes. But the notion that such state prosecutions are even in the works is purely speculative.

There are plenty of reasons you might oppose Judge Kavanaugh. This one is an over-complicated bag of hot air, approaching a Twitter conspiracy theory.

All The President's Lawyers: Torture Porn Edition

Josh tortures me with emoluments and exacting word-by-word analysis of Lawrence Tribe tweets.

This week on All The President's Lawyers.

Tuesday, October 2, 2018

Lawsplainer: Feds Charge Four With Conspiring To Travel To Charlottesville To Riot

The United States Attorney for the Western District of Virginia in Charlottesville has obtained a federal criminal complaint against four men — Benjamin Drake Daley, Michael Paul Miselis, Thomas Walter Gillen, and Cole Evan White — charging them with interstate travel to riot and conspiracy in connection with the August 2017 "Unite the Right" rally.

Who filed the what now?

The U.S. Attorney is the senior federal prosecutor in the Western District of Virginia — one of the two federal court districts in Virginia. The U.S. Attorney's office filed a federal criminal complaint against the four men. Feds file a complaint by having a federal agent submit, and swear to, an affidavit describing the evidence showing probable cause to believe the defendant committed the crime, and having a United States Magistrate Judge sign off. The complaint for one of the men is here; the affidavit in support of all four complaints against the four men is here.

What are they charged with?

For now, they're charged with two federal crimes. One is 18 U.S.C. 2101, which prohibits travelling in interstate commerce, or using interstate facilities like the internet, to incite or promote a riot. A "riot" is defined to mean an assembly of three or more people involving violence or threats of violence. They're also charged with conspiracy to commit a federal crime in violation of 18 USC 371, on the theory they agreed and conspired to travel and plan in interstate commerce to riot at Charlottesville.

Why is this a federal crime?

For the riot statute, the federal hook is travelling in interstate commerce or using interstate mechanisms like the internet or phone – that's a common hook for federal jurisdiction. The hook for the conspiracy charge is conspiring to violate the federal law — a bit of bootstrapping.

Is that it? Just those two counts?

That's all for now. They've only been charged in a complaint. They have a right to be indicted by a grand jury, which they will be within a couple of weeks unless they cut a deal. The feds may seek more charges in a grand jury indictment — the initial criminal complaint is usually fairly bare bones, since it's just a placeholder to get an arrest warrant and start the case. You usually see the prosecutor's more expansive case theory in the indictment.

How much time do they face?

The two charges each carry a maximum sentence of five years. However, as frequent readers know, that bears no relation to their likely punishment if convicted. First of all, the indictment might carry other charges. Second, they will be sentenced based on recommendations in the United States Sentencing Guidelines, which lead to results usually much lower than the statutory maxima.

What do we know about the evidence against them?

Since it's a federal complaint, it's supported by a pretty detailed affidavit detailing the investigation and what authorities found. The affiant — a Virginia State cop who is a member of a federal Joint Task Force — alleges that the four defendants were members of a Southern-California-based organization called "Rise Above Movement," or "RAM," which encourages "clean living" and "street fighting techniques." RAM members identify themselves as "alt-right" and "nationalist." The complaint alleges that Daley, Miselis, Gillen, and White [no relation of which I am aware] traveled to Charlottesville from California to attend the United The Right Rally on August 12, 2017. The complaint asserts that they have in the past engaged in "acts of violence directed towards their supposed political opponents and counter prostestors" at places like Berkeley. The complaint includes pictures of the defendants at Charlottesville, social media statements (one genius: "I hit like 5 people"), pictures of their hands taped (allegedly in preparation for fighting), and describes video footage of them assaulting people at the rally. So: it sounds as if the authorities have photos and video of them in Charlottesville, with at least some of them engaging in assaults, as well as various statements and admissions, plus prior behavior probative of intent.

Is it a strong complaint?

Well, it's as strong as it has to be. Probable cause is a very low bar. In my view, the affidavit is mediocre because it lacks thorough attribution — that is, the affiant does not explain how he knows each fact in the affidavit, but just gives a narrative statement of the investigation. But that's not uncommon, unfortunately, and feds can usually get away with it (though my supervisors at the U.S. Attorney's Office would never have put up with it, and I wouldn't have approved such an affidavit). Leaving that aside, it's enough to show probable cause — it has evidence they traveled from California to Charlottesville and committed violence at the rally, and evidence that their intent was to do so.

Does the case have First Amendment implications?

Certainly. But the First Amendment doesn't protect violence. It also doesn't protect true threats (that is, threats that a reasonable person would take as an expression of genuine intent to do harm, which the speaker intended that way) nor actual incitement (speech intended, and likely, to cause imminent lawless action). Moreover, the First Amendment doesn't prohibit using someone's speech as evidence to prove motive, pattern, or intent — like using the defendants' prior speech in an attempt to prove that they intended to go to the rally to assault people.

So what happens next?

It depends. As I write this at about 11:34 Pacific on October 2, 2018, it's not clear where these guys were arrested. If they were arrested in the Western District of Virginia, they just get brought to federal court, are arraigned, and try to get bail (we'll see if the government tries to have them detained as violent), and the court sets a future hearing date, before which the U.S. Attorney's Office will either indict them or cut deals with them.

If they've been arrested elsewhere — in California, say — they'll first appear in the nearest federal court here in California. They can waive their rights and go straight to Virginia, or they can insist on a process where the government has to prove that they're the same four guys named in the complaint and that there's probable cause for the charge (which the government usually does by indicting them, which establishes it).

Wait — why was the complaint under seal? Why are they being arrested now if it was filed on August 27?

It appears that the feds sought search warrants as well as complaints. They would have sought the complaints from a magistrate judge in Virginia, where they are being charged, and the search warrants from a magistrate judge in California, where the properties to be searched likely are, since they're from here. Arresting four dudes and searching multiple locations, especially when they're in a different district, is a logistical nightmare. If you're searching, you don't want to give them advanced notice. So it's common for the feds to get a complaint, ask the judge to keep it under seal, and unseal it only when they arrest the people and the whole operation is public.

I'll update this 'splainer if events warrant.

Monday, September 17, 2018

Cave Diver Vernon Unsworth Sues Elon Musk

If aliens grabbed some rando popped-collar douchebro off of a frathouse roof, Uplifted his brain, and handed him a billion dollars, they'd wind up with Elon Musk, a furiously rich, frighteningly smart visionary and ambulatory Ed Hardy shirt. The wisdom-dump-statted Musk has been terrifying Tesla shareholders by careening from one bizarre antic after another. It might be said of him that we are all constantly called upon to hold his beer.

This week finds him hailed to court. Musk made news recently for his antic crescendo of insults and accusations against a cave diver named Vernon Unsworth, who had the temerity to suggest that Musk's efforts to helped cave-trapped Thai children were poseur nonsense. Erratic billionaires don't take criticism well as a rule, and Musk suggested, then denied, then doubled down again and insisted that Unsworth is a pedophile. This is the point at which prudent people seek a court-ordered conservator over the antic person, except this antic person can send rockets into space and back.

Unsworth, after threats, has now sued. The lawsuit — filed in United Sates District Court in Los Angeles — is here. It's in federal court based on diversity jurisdiction — that is, because the parties are from different states and/or countries (California for Musk and England for Unsworth) and asserts but one count of defamation. The defamation claim is very thoroughly drafted — it sets for all of the complained-of statements and their context quite thoroughly, and even attaches tweets and articles to show the full context. Unsworth claims that Musk has falsely accused him of being a pedophile, a person who has engaged in pedophilia, a child rapist, a child sex-trafficker, the husband of a 12-year-old child bride, and a liar.

So how does this play out?

Most likely the whole case turns on whether these are provable false statements of fact, as required for defamation. Rhetorical hyperbole, insult, shit-talking, bloviating, pure opinion, and other expressions not reasonably taken literally as assertions of fact are not defamation. Opinion based on disclosed facts — "look at this article about what he did, Elon Musk clearly has a personality disorder" — are not defamatory. But a statement reasonably taken as one of fact — or an opinion expressed in a way to imply false undisclosed facts — can be defamatory.

So where do Musk's musings come out?

In my view, and tracking the statements listed in Exhibit A to the Complaint:

1. The 7/15/18 tweet where Musk says it is "sus[picious]" that Unsworth lives in Thailand is an opinion. It's a stupid one, but it's an opinion.
2. The 7/15/18 tweet where Musk calls Unsworth "pedo guy" is likely insult and hyperbole. Whether something is a statement of fact is determined by context, as viewed by people familiar with it. Twitter is a place for non-specific shit-talking, and people viewing it are less likely to see things as statements of literal fact. Absolutely nothing in Musk's tweet supports or suggests he has some basis for calling Unsworth a pedophile; the much more reasonable interpretation is that it's shit-talking and insult.
3. The 7/15/18 tweet where, confronted with his accusation, Musk says "bet ya a signed dollar it's true" is also likely hyperbole, insult, and opinion. Nothing about it suggests Musk has any basis to be making a factual claim and the entire context suggests trash-talking.
4. Musk's 8/28/18 tweet saying it's strange that Unsworth hasn't sued — implying that therefore he must be a pedophile — is an argument and opinion, not an assertion of fact, and again is in a context suggesting trash-talking and insult.
5. Musk's 8/30/18 email to Buzzfeed is another story. He claims that Unsworth moved to Thailand to marry a 12-year-old child bride. That's a statement of fact. He also accuses Buzzfeed of defending child rapists and lays out his evidence for his accusation that Unsworth is a pedophile — including the child bride allegation. This part gets more complicated. An opinion based on disclosed facts — even if it's a stupid opinion — is protected so long as the disclosed facts are true. But here Musk is offering his opinion that Unsworth is a pedophile and premising it on the claim that he married a child bride, which Unsworth says is false. That makes this section potentially defamatory.
6. Musk's allegation in a second 8/30/18 email that he was told that Unsworth was banned from the site is potentially defamatory if that's false and he was not told that.

So: in my view there are some potentially defamatory statements here. There are potential defenses — Musk would try to argue that Unsworth is a limited purpose public figure and that Musk didn't make the false statements with the requisite actual malice (knowing the statements to be false or with reckless disregard as to their falsity). It's a defensible case, but not a case, in my view, that gets kicked out early through a motion to dismiss or motion under California's anti-SLAPP statute, which applies to a limited extent in federal court in California.

It will be interesting to see what Musk files in response. The suit reveals, if nothing else, a CEO acting in a disturbingly erratic manner. Musk will have a much grimmer time in England, which has far less speech-protective laws, if Unsworth sues there.

Tuesday, September 4, 2018

Popehat T-shirts available again

It's been a while. There are two new ones, and a way to request the old one.

Friday, August 24, 2018

Washington Post Today On The Problems With "Flipping"

Link here.

Wednesday, August 22, 2018

Today in Newspapers And Radio

All the President's Lawyers on our sleepy legal week.

An interview on KPFA's UpFront.

And a New York Times op-ed.

Thursday, August 16, 2018

Some Friendly Advice To New Law Students

Across America, law students are starting their first year. Some are attending elite law schools on a traditional track; some are taking classes at night and working during the day. Many of them are freaked out right about now.

I have some words of encouragement.

1. Take all the clinics, practicums, and internships that you can. Nothing beats seeing how law is actually practiced. It helps you get a practical grip on what you might like to do, and helps you see how what you're learning applies to an actual legal career. Plus it's a crucial way to meet people and open doors.

2. Are you going to law school to become a professor? Good for you! Otherwise I strongly advise approaching it not as about academic excellence, but about training to be of service. Lawyers represent clients. Clients benefit from you knowing what you're doing. Clients benefit from practical excellence, not academic excellence. Academic excellence is a nice by-product of taking subjects seriously as you master them, but it's not an end in and of itself for a lawyer. You're training to do a good job for people who need help — whether you're going to be a civil litigator or a criminal lawyer or an in-house counsel guiding your company the right way. Some schools — particularly elite ones — encourage a contrived disdain for nuts and bolts of practice in favor of theory. Theory is nice — it's helpful to know the why, and to be conversant with theoretical arguments to back up your practical arguments — but a lawyer who can critique a rule of evidence, but not apply it, is not a lawyer who will be of service to a client.

3. Would you like to take some very specialized courses on some fun and esoteric issues? Fine. But don't neglect the building blocks, tedious as you may find them. I really didn't want to take Corporations and found it dull, but I use that knowledge all the time in civil and criminal litigation. I fled from Secured Transactions but soon learned that I would have benefited tremendously from it. Law and legal norms are everywhere and interdependent, and the theory that you can get by in your specialized area without all of the basics is usually wrong. ("But what are the basics?" is a subject for another post.)

4. Write every day — an assignment, a blog post, a substantive email. Speak every week — a debate, a podcast, an oral argument. Writing and speaking comfortably and effectively will always be useful no matter how you practice.

5. Resist excellence narratives that focus on the right background, the right school, the right job. The best lawyers are not the ones who went straight from Ivy to Ivy to Biglaw. The best lawyers are the ones who are serious, dedicated, and passionate about their craft. The best lawyers I've had the pleasure to work with have often been second-career lawyers, lawyers from schools that were not "top tier," lawyers who took a different path. But they were serious about being lawyers. Don't rest on your laurels just because you went Harvard to Yale, and don't sell yourself short just because you came to law after another career and you're going to a less "prestigious" law school. You can be excellent, but only if you work at it.

6. Law school culture often wants you to hate, resent, and fear your fellow students and see them as competitors. Resist. Make friends with, and be friendly with, different people. You'll learn from them. And you'll hate law school if you buy into the cutthroat narrative.

7. Some law schools also want to scare you. The "look to the left, look to the right, one of you will be gone at the end of the year" thing is theater. Don't buy into it. Work hard, care about your work, but don't envision yourself as in a struggle to survive. You're in a struggle to equip yourself to be a good lawyer.

8. Professors who use the Socratic Method — and other professors who interrogate you in class — do it for a variety of reasons. Some do it the reasons fraternities haze — it was done to them and it's tradition. Some of them are just assholes. Some do it to train you. It doesn't matter why they do it; you can't control that. It matters how you react. In a legal career, there will be a certain amount of unpleasantness. Whether you're a criminal lawyer or a civil litigator or an in-house counsel or a transactional lawyer or a public interest lawyer, you're going to have to live with it. The value of a Socratic professor — or a professor who's just an asshole — is that it helps teach you to stand up for your client. The key is confidence, and justified confidence comes from preparing and being serious about your job. You don't prepare meticulously for oral argument to avoid embarrassment; you prepare to serve the client. Prepare for Socratic professors like you're learning to serve a client — like you care about doing a good job for someone. It's not about you.

9. Outline concepts for the classes as you go along. Don't rely on other people's outlines, except to see a different perspective. The process of outlining forces you to figure out how things fit together. It's fine to do this together, but really do it all together — don't split it up.

10. Watch out for meta-concepts. If you got into law school, you studied for the LSAT, and if you studied for the LSAT, you learned that becoming familiar with the structure of word and logic problems made it much easier to solve them. Once you see how the "who is sitting next to Wayne if Earl is sitting to the left of Carl" fits together, solving it becomes a breeze. Legal analysis can be like that — both in law school exams (where you can become familiar not just with substantive rules of law, but with how professors embed legal issues into questions) and in practice. Keep an eye on not just "what is the rule in this case," but on "what logical and rhetorical moves did the judges use to get there."

11. Learn to believe in things. If you're ever going to be an advocate, or an adviser, you need to be able to believe in things. When you get up and defend someone charged with a crime, you need to believe in something, or the judge and jury sees you're just going through the motions and nails your client. You don't have to believe your client is good or innocent, but you have to believe passionately in something – that the system or the charges are unjust, that the punishment is disproportionate, or that the system is right to give every accused person an advocate and by God you are that advocate and you believe in your duty. It's the same with a civil client. You don't have to believe they're right, but you have to get up there and believe that we resolve disputes through zealous advocates, and believe in being that advocate. You have to believe in your advice as an in-house counsel, or public interest lawyer, or transactional lawyer. Cultivate believing in what you do.

Good luck.

All The President's Lawyers: Manafort's First Trial Draws To A Close

This week: the Manafort trial, Omarosa, and more.

Wednesday, August 8, 2018

Interview With Reason

Do I always bob my head around like that God that's distracting. Anyway Nick Gillespie and I talk about free speech, threats thereto, and STUFF.

Interpreting Judicial Ire Is Like Reading Entrails

I have a column at NBC.

Thursday, July 26, 2018

All The President's Lawyers: In Which There Are Swears

I think this was my favorite ATPL yet. Josh swore, I swore, we discussed limits of human idiocy, we speculated about what Judge Otero did in a past life to deserve this, it was a good time.

Thursday, July 19, 2018

Illinois Attorney General Stomps Notorious Censorious Jerkass Dennis Toeppen and His Infamous Suburban Express

Long-time Popehat readers may remember the persistently loathsome Dennis Toeppen and his what-if-you-had-a-racist-vexatious-litigant-bus-company Suburban Express, which services University of Illinois-Champaign. I wrote about them in April 2013, when he sued a bunch of university students in a distant small claims court, sued students for criticism, threatened defamation suits for criticizing their litigation campaign, and generally acted completely unbalanced. I wrote again in July 2013, when Suburban Express and Toeppen doubled down on defamation threats against critics, and again in July 2014, when Toeppen was charged with misdemeanor cyberstalking.

It's remarkable that Suburban Express has survived given how absolutely awful its reputation has become, especially after a Dennis-Toeppen-acting-like-Dennnis-Toeppen incident in which Suburban Expressed advertised that you should ride with them because you won't encounter so many Chinese people. Now the Attorney General for the State of Illinois has gotten involved. The Attorney General actually sued Toeppen and Suburban Express, alleging violations of state and federal civil rights and consumer protection laws. The complaint is rather shocking. The AG asserts that Suburban Express and Toeppen actively discriminate against Asians and Jews: that they create online pages ridiculing and attacking complaining customers on racial grounds, that they offered an explicitly anti-Asian advertisement and then offered a non-apology asserting "we're not comfortable with the idea of selling our university to the highest foreign bidder," that they advertise Suburban Express as featuring "passengers who look like you and are like you," that their internal communications ridicule Asians, and that the internal communications ridicule Jews (e.g. "a trip to the land of no ham"). The AG also cites Suburban Express' and Toeppen's online abuse of customers who anger them: they create web pages attacking and insulting customers with whom they have disputes and displaying their personal information like names, email addresses, phone numbers, and physical addresses; they ban customers for bizarre and arbitrary reasons ("sounds like a bitch" "negative yelp review, peanut allergy"); that they have form contracts with abusive and illegal terms (such as prohibitions on negative reviews or online criticism), and that they file scores of petty suits in deliberately inconvenient locations to attack complaining customers. In short, they're a nightmare. The AG kept receipts; they included 182 pages of damning exhibits.

It's not looking promising for Toeppen or Suburban Express in court. They agreed to a Temporary Restraining Order barring them from publishing the personal identifying information of customers, required them to take down the personal identifying information they already published, revise their lawsuits to redact gratuitously filed personal identifying information, and stop retaliating against customers for online reviews. Toeppen and Suburban Express agreed to have that order extended a few times, and now the AG wants to make it into a more long-term injunction. Meanwhile the attorney for Suburban Express and Toeppen wants to quit, citing strategic disputes and non-payment. Toeppen is falling back on the game-winning strategy of semi-coherent attacks on the media.

Dennis Toeppen is the heart of this story. He's the answer to the question "what if That Dude from the YouTube comments ran a business that impacted a whole bunch of people?" He seems, charitably, disturbed. He's in federal court now — no longer merely the court of public opinion or the distant small-claims court he uses to strongarm customers — and it will not end well for him.

This Week's All The President's Lawyers: Tawdry Sex, Sad Middle-Aged Men, And Rubble-Bouncing

A sad middle-aged man gets humiliated on the internet. No, not me. U.S. Person One, who is having a very bad week.

Tuesday, July 17, 2018

Federal Court Vacates Prior Restraint Order Against LA Times, But Blasts Press In Attempt To Justify It

Yesterday I wrote about how United States District Judge John F. Walter issued an illegitimate prior restraint order against the L.A. Times, ordering it not to publish — and to depublish — information derived from a plea agreement made available on PACER, the federal court's docketing system. This morning Judge Walter held a hearing on the issue. I attended. Judge Walter vacated the order, but not without blasting the press and attempting to justify his actions. He did not succeed.

When he issued the temporary restraining order against the Los Angeles times last Saturday, Judge Walter originally set the hearing on the matter — to decide whether to make the temporary order permanent – for July 18, 2018. As soon as the parties filed their briefs on Monday, he advanced the hearing to today, Tuesday. It was clear from that move that he would likely vacate the order. He took the bench promptly and read from a written order. Federal practitioners can spot the pattern: when the judge starts a ruling by explaining the merits of one side's arguments, that's the side that's going to lose. That was the case here.

Judge Walter explained that he had determined that defendant John Saro Balian's plea agreement should have been filed under seal, but that an error by a docketing clerk led to it being captioned as under seal but nevertheless available on PACER. He explained that he had been informed of the issue on Saturday July 14th, and that he was "terribly concerned" that Mr. Balian or his family would be subjected to physical harm if the information became public. He didn't specify the information, but from context it's perfectly clear: the plea agreement shows that Mr. Balian has agreed to cooperate against other figures in the investigation, who include the Mexican Mafia and Armenian crime families. Judge Walter said that he found that he found that prior restraint was justified because the harm threatened was "great and certain," based in part on his own experience trying gang and organized crime cases. As convention requires, he described himself as a strong proponent of the First Amendment, but said that that the circumstances justified the order, particularly because at the time he issued the order it wasn't clear how the Los Angeles Times reporter got the plea agreement.

Judge Walter explained that circumstances had now changed: he now knew how the plea agreement got out, had determined that it wasn't through misconduct by the press, noted that the government and defense had now had the opportunity to protect the defendant and his family, and noted that the information was now public. He therefore denied the request for a longer-term order and vacated his prior order, and said the Times could print what it wanted. But he didn't leave it without harsh criticism of the Times. He suggested that the reporter should have waited for an order from him rather than running the story once she heard the defense protest that the plea agreement should have been under seal. He suggested the Times was wrong to run information about a document that it knew was intended to be under seal — he described it as "exploiting an honest mistake by a docketing clerk."

Balian's lawyer, Craig Missakian, did not quarrel with Judge Walter's ruling vacating the order, saying that the Court couldn't "unring the bell" once the information was in the public record. he complained that the Times had not protected the rights of "a man in chains," and instead had acted irresponsibly to print information for no legitimate purpose.

The Los Angeles Times' attorney, Kelli Sager of Davis Wright Tremaine, was fuming during all of this. One of the hardest things you learn as a lawyer is to sit down and shut up when you're winning. She was winning. But she stood up to defend the Times from the accusations by Judge Walter and the defense. This wasn't wrong: the accusations against the Times deserved refutation even if Judge Walters was lifting the order. Sager asserted that Missakian had misled the Court, suggesting that the Times had gotten the plea agreement through nefarious means even though he knew that the order was available on PACER. She politely but forcefully argued that Judge Walter's justifications did not satisfy legal precedent. Citing the Pentagon Papers case, she pointed out that the Supreme Court refused to support prior restraint even when classified information was wrongfully leaked, and there could be no justification for the Court's action here. Judge Walter responded with the classic criminal court's "think of the children" argument — "I was concerned about somebody's life, and if I erred, I wanted to err on the side of protecting the defendant." That's not the law. Judge Walter ended the hearing, asking Ms. Sager to inform the Ninth Circuit that it would not have to consider her emergency writ of mandate motion because the issue was now moot.

So the Los Angeles Times won, as it should have. But it should never have been subjected to the order in the first place. There was no legal basis for it. The standard the Court articulated — that the danger was "great and certain" — is not the law and not remotely plausible. Prior restraint would only be permissible if there were a compelling government interest and the restraint were necessary to protect that interest and the restraint was the least restrictive means to protect the interest. It wasn't. As Ms. Sager pointed out, the correct response to a fear for Balian's safety was to physically protect him, not to stop people from talking about his cooperation.

The safety justification was particularly unconvincing because of the circumstances of the case. Balian's lawyer and Judge Walter suggested that the story about the cooperation agreement put Balian in danger by notifying gangs that he was cooperation. This is utter nonsense. As I explained yesterday, multiple factors in the public record already strongly suggested that Balian was cooperating. He was a dirty copy pleading guilty to helping criminal organizations, he agreed to delay indictment for weeks, and he waived indictment and pleaded guilty early in the case to an information rather than an indictment. All of those factors suggest cooperation to anyone knowledgeable about federal criminal procedure. Judge Walter's response to that point — which Sager raised — was that "an inference or suspicion is not the same as knowing." That might be true for a court, but criminal organizations don't have high standards of legal proof to decide you're a cooperator. The Mexican Mafia does not wait for admissible proof establishing clear and convincing evidence. As Balian's case shows, these gangs have law enforcement sources. They are experienced with the justice system. They have lawyers experienced with the justice system. If the defense, government, and Court were not already assuming that the Mexican Mafia thought Balian was cooperating and protecting him accordingly, they were being wantonly reckless with his life. Moreover, the mere act of ordering a newspaper to depublish a story served to emphasize the cooperation far more widely and loudly than any newspaper story could have. Judge Walter's entire theory of cause for the prior restraint is nonsensical under any standard, let alone the extreme standard required for prior restraint.

It's good that Judge Walter vacated his order. But it's unacceptable that he issued it in the first place, and unbecoming and regrettable that he blasted the press for printing important information about a federal case. A dirty cop cooperating against gangs is news. They were right to publish. He was wrong to issue the order, and wrong to try to justify it.

Monday, July 16, 2018

Federal Judge Issues Illegitimate Prior Restraint Order Against Los Angeles Times In Federal Criminal Case

United States District Court Judge John F. Walter, sitting in federal court in Los Angeles, has issued an extraordinary, dangerous, and illegitimate order to the Los Angeles Times directing it to remove factual information from a newspaper article discussing a federal criminal case. Judge Walter's order is lawless.

The case at hand is the federal prosecution of Glendale, California police detective John Saro Balian, who pleaded guilty last week to federal charges. His plea agreement should have been filed under seal, which would have rendered it unavailable to the public. Instead, through an error — perhaps by the prosecution or a court clerk — filed it normally, so it became publicly available on PACER, the federal courts' online docketing system and an indispensable tool for any legal journalist. The Los Angeles Times wrote a story based in part on that plea agreement. Balian's lawyer — who likely found out about this error when the Times called for a comment — filed an emergency motion asking the judge to forbid the Times from running a story discussing the contents of the plea agreement and to remove any such story to the extent it had already published it. The order is here. Note that Judge Walter simply signed the defense attorney's proposed order, which contains no legal analysis whatsoever.

The order includes the following language:

IT IS HEREBY ORDERED that the Los Angeles Times and each of its parent companies, subsidiaries, or affiliates (collectively "the Los Angeles Times") directly or indirectly, and whether alone or in concert with others, including any officer, agent, employee, and/or representative of the Los Angeles Times, be and hereby are ENJOINED from:

Disclosing the under seal plea agreement in this case, in whole or in part, or publishing any article, piece, post, or other document whether in print or electronic format that quotes, describes, summarizes, references, relies on, or is derived in any way from the under seal plea agreement in this case and that it return forthwith any and all copies of such plea agreement in its possession to the United States Attorney's Office for the Central District of California.

The order also includes this crucial passage:

IT IS FURTHER ORDERED that defendant shall serve the Los Angeles Times with a copy of this order but not the Ex Parte Application forthwith. To the event any article is published prior to issuance of this order, it shall be deleted and removed forthwith.

Judge Walter also ordered the Times to appear in Court this Wednesday to argue whether the temporary order should be made into a permanent injunction.

In other words, based on an emergency request from the defendant, with no prior opportunity to be heard, a federal judge ordered a major newspaper (1) not to write about the details of a federal plea agreement it had obtained lawfully, (2) not to write anything that "relies on, or is derived in any way" from the plea agreement, an incredibly broad and vague term that is extraordinarily chilling to speech about the case, (3) to take down any story it's already published, and (4) told the paper they can see the order, but not the application stating the legal and factual grounds for the order.

I haven't seen the plea agreement and didn't see the L.A. Times article before they edited it to comply with the order. But it's rather obvious what happened — Balian almost certainly agreed to cooperate with the government. I don't need the plea agreement or the article to know that; I only need a minimal familiarity with federal criminal procedure. In a detailed criminal complaint that is public and available on PACER, the government accused Balian of lying to federal investigators about his ties to, and favors for, the Mexican Mafia and Armenian organized crime. After his arrest, Balian repeatedly waived his right to a timely indictment and eventually waived the right to indictment and entered a guilty plea to an information. An information like the one Balian pleaded to is a charging document issued by the U.S. Attorney's Office rather than the grand jury. You only plead to it if it charges a crime so minor that it doesn't require grand jury indictment or when you agree to plead up front before indictment. By pleading guilty to the information, Balian admitted to taking bribes and to tipping off someone to avoid arrest. These facts in the public record all suggest that it is very likely that Balian agreed to cooperate. Is it certain? No. But it's likely. No federal practitioner would be surprised.

So: if Balian asked the Court to muzzle the L.A. Times because the accidentally released plea agreement revealed he was cooperating, and Judge Walter agreed on that grounds, it's a preposterous justification. The plea agreement isn't necessary to show his cooperation; reasonable observers can infer it as a strong likelihood. The plea agreement may also have included factual details about what Balian admitted to doing — prosecutors typically get cooperators to agree to a detailed set of facts to "lock them in" to a story. But that's the government's concern, not Balian's.

But even if Balian's cooperation — or anything else in the plea agreement — were truly secret, Judge Walter's order would still be entirely without legitimate legal basis. The order is classic prior restraint — it prohibits publication of facts in advance, and (to the extent the Times already had the story up) prohibits continuing publication of facts. Prior restraint is genuine First Amendment red line — forbidden almost without exception, routinely prohibited and overturned, soundly rejected. American courts have repeatedly rejected efforts to de-publish documents that the media has obtained through inadvertence or mistake.

I said that prior restraint is prohibited almost without exception. Some of you will leap at that. Don't bother. Though the Supreme Court has not held that all prior restraints are automatically invalid, it has articulated limitations that, for practical purposes, are fatal to any effort to defend them. In the Pentagon Papers case, the Supreme Court said that there is a "heavy presumption" against the constitutional validity of a prior restraint. Other courts have overturned prior restraints on reporting about criminal proceedings and have noted that a prior restraint could only survive it it passes the strict scrutiny test – that is, it serves a compelling interest, it is narrowly drawn, and there are no less restrictive alternatives. To review more extensive discussions of prior restraint law, you can review the briefs from the Electronic Frontier Foundation's successful fight to overturn a prior restraint requiring a web site to de-publish lawfully acquired documents. There is no way that the order in this case meets that incredibly difficult standard.

This is not a close call. Judge Walter's order is not plausibly lawful. It is patently unconstitutional, and the sort of order that is only issued when a judge deliberately defies First Amendment law or is asleep at the switch. This is utterly unacceptable. The Los Angeles Times will be challenging the order, and I expect them to win, and look forward to all of the briefing — and the original article — becoming available.

At a minimum, this is a foolish move on Balian's part. It will necessarily draw many orders of magnitude more eyes to his plea agreement than would have otherwise seen it.

Tuesday, July 10, 2018

You'll Hate This Post On Brett Kavanaugh And Free Speech

You're going to hate this post. You're going to hate it because it's about what I decided to write about, not what you want me to write about. It's about Supreme Court nominee Brett Kavanaugh, but it's only about a very narrow issue — his treatment of free speech law under the First Amendment as a judge on the United States Court of Appeals for the District of Columbia Circuit. It doesn't talk about what he'll overturn, or about how radical or mainstream he is on any other issue, or his general method of constitutional interpretation, or the inside baseball of how he got appointed. It doesn't advance or rebut a legal realist position about whether judges make up logic to get to their desired result. It doesn't discuss whether he spells the nation's doom or its triumph. It doesn't even address his take on the free exercise or establishment clauses of the First Amendment — it only addresses the speech/press/assembly/petition clauses. It does not, outside of this sentence, acknowledge your Very Important Argument that by merely choosing what to talk about I am engaging in a partisan political act. It is I, Ken, here stomping defiantly on all your fond desires.

Good. Now that we've got that behind us, let's talk about Brett Kavanaugh's free speech record.

Here's the bullet: Kavanaugh has been an appellate judge for 12 years and has written many opinions on free speech issues. They trend very protective of free speech, both in substance and in rhetoric. His opinions are consistent with the Supreme Court's strong protection of free speech rights this century. People who buy into the "conservatives are weaponizing the First Amendment" narrative will see him as a strong advocate of that movement, in that he has applied the First Amendment to campaign finance laws, telecommunications regulation, and other aspects of the regulatory state. But he's also demonstrated fidelity to free speech principles in classic speech scenarios. Even when he concurs in a First Amendment decision, he frequently writes a separate opinion to clarify his analytical approach to the problem. He's quoted First Amendment guru Eugene Volokh — one of the leading voices in free speech analysis and a strong defender of speech rights.

Free Speech and Elections Law. Kavanaugh has voted to strike down campaign financing laws and regulations under the First Amendment. Because he's a judge on the D.C. Circuit, which tends to get cases challenging federal regulations, he's done so multiple times. In Emily's List v. Fed. Election Comm'n, 581 F.3d 1, 4 (D.C. Cir. 2009), he ruled in favor of the progressive EMILY's List, striking down the Federal Election Commission's regulations of political expenditures by nonprofits. He concurred wtihout writing a separate opinion in Pursuing America’s Greatness v. Fed. Election Comm'n, 831 F.3d 500, 510–11 (D.C. Cir. 2016), which struck down an FEC regulation prohibiting unauthorized political committees from using candidates' names in the titles of their web sites and social media pages.

Classic Speech Scenarios. In cases involving "classic free speech scenarios" — the sort of thing that's not derided as "weaponizing the First Amendment" — Kavanaugh has applied the First Amendment vigorously to protect speech. In Initiative & Referendum Inst. v. U.S. Postal Serv., 794 F.3d 21, 24 (D.C. Cir. 2015), he ruled that a Postal Service regulation that barred collecting signatures outside of post offices chilled speech and violated the First Amendment even though the Postal Service had stopped enforcing it. In Boardley v. U.S. Dep't of Interior, 615 F.3d 508, 523–24 (D.C. Cir. 2010), he wrote a strong concurring opinion in a case that struck down a National Park Service regulation requiring a permit for demonstrations on national park grounds, in which he focused both on the burden on speakers and the right to protest anonymously. On the other hand, Kavanaugh has not hesitated to apply traditional First Amendment exceptions when supported by the record. For instance, in Al Bahlul v. United States, 767 F.3d 1, 75–76 (D.C. Cir. 2014), he agreed that Al Qaeda recruitment videos aimed at inciting viewers to kill Americans were not protected under the classic Brandenburg test because they were directed to inciting and likely to incite imminent lawless action. (This led him to quote the somewhat infamous "the Constitution is not a suicide pact" line, one of my least favorite First Amendment rhetorical tropes.) And in Mahoney v. Doe, 642 F.3d 1112, 1114 (D.C. Cir. 2011), he took a somewhat you-kids-off-my-lawn tone in a concurring opinion agreeing that the government could prohibit "defacing government property" — in this case, by chalking sidewalks outside the White House — so long as it did so in a way that was neutral as to subject matter and viewpoint.

Commercial Speech. Courts treat "commercial speech" as somewhat less protected than other speech; the scope of that carve-out is a matter of dispute. Kavanaugh's opinions suggest that the "commercial speech" doctrine should be interpreted narrowly and in favor of speech. For instance, in Am. Meat Inst. v. U.S. Dep't of Agric., 760 F.3d 18, 30–32 (D.C. Cir. 2014), he wrote a concurring opinion offering a more narrow grounds for upholding a regulation requiring labeling of foreign-made goods. He rejected the government's broad argument that it had a substantial interest in forcing vendors to inform customers of the foreign origin of goods, because doing so is not tied to avoiding deception or promoting health and safety. He accepted the government's narrower argument that it had a substantial interest in promoting American-made goods.

Government Speech. The government is allowed to regulate speech on its own behalf; when the message is from and by the government it can determine its content in a way it cannot when it's someone else's speech. The government frequently invokes this doctrine at the margins to defend speech regulation — for instance, in Matal v. Tam, the government argued unsuccessfully that it could ban "offensive" trademarks because issuing a trademark is government speech. Judge Kavanaugh reads government speech fairly broadly. In DKT Int'l, Inc. v. U.S. Agency for Int'l Dev., 477 F.3d 758, 764 (D.C. Cir. 2007), he agreed that the government could fund only those NGOs that adopted a message of anti-sex-trafficking on the grounds that the government could fund the message it chose. In Bryant v. Gates, 532 F.3d 888, 898 (D.C. Cir. 2008), he wrote that the government could restrict who can advertise in military newspapers because such papers are government speech.

Net Neutrality and Telecommunications Regulation. Oh, people will flip out over this one. In short, Kavanaugh believes in applying the First Amendment to telecommunications regulation. He's written in numerous opinions that the government can't restrict the "editorial discretion" of internet service providers or content networks absent a showing that a particular provider "possesses market power in a relevant geographic market." Put another way, he believes that the First Amendment prohibits the government from telling ISPs and other communications providers that they have to carry competitor's content unless the government's made a showing that they have an anti-competitive level of power in a market. He's blunt about it. "[T]he net neutrality rule violates the First Amendment to the U.S. Constitution," he wrote in one dissent, pointing out that the government had not even tried to make a market power argument to support the regulation in that case. United States Telecom Ass'n v. Fed. Commc'ns Comm'n,855 F.3d 381, 418 (D.C. Cir. 2017). In Comcast Cable Commc'ns, LLC v. F.C.C., 717 F.3d 982, 994 (D.C. Cir. 2013), he wrote a concurring opinion emphasizing that the FCC could not tell Comcast or other programming distributors what content to carry absent a showing of market power requiring it. "[T]he FCC cannot tell Comcast how to exercise its editorial discretion about what networks to carry any more than the Government can tell Amazon or Politics and Prose or Barnes & Noble what books to sell; or tell the Wall Street Journal or Politico or the Drudge Report what columns to carry; or tell the MLB Network or ESPN or CBS what games to show; or tell SCOTUSblog or How Appealing or The Volokh Conspiracy what legal briefs to feature." He sounded similar notes in his dissent in Cablevision Sys. Corp. v. F.C.C., 597 F.3d 1306, 1316 (D.C. Cir. 2010) Put another way, Kavanaugh is unwilling to assume that the goal of competition justifies regulating what content networks must provide absent specific evidence of anti-competitive circumstances.

Limited To Textual and Historical Grounds. Kavanaugh has declined to find new rights within the First Amendment. For instance, in We the People Found., Inc. v. United States, 485 F.3d 140, 141 (D.C. Cir. 2007), he agreed that the First Amendment's right to petition the government does not carry with it a right to have the government respond.

Unions. After Janus, everybody's arguing that judges have "weaponized" the First Amendment against unions, so it's worthwhile to note a union case. In Venetian Casino Resort, L.L.C. v. N.L.R.B., 793 F.3d 85, 87–88 (D.C. Cir. 2015), Kavanaugh wrote that an employer did not violate the National Labor Relations Act by calling the cops on a union protest on its premises. This was a fairly straightforward application of something called the Noerr–Pennington doctrine, which says that behavior doesn't violate federal antitrust or labor law when it amounts to petitioning the government as protected by the First Amendment. This was an unremarkable application of that doctrine. Kavanaugh noted that other conduct by the employer could violate the NLRA, and remanded the case for a determination of whether an exception for "sham petitions" applied, so it takes effort to force this into an "anti-union" narrative.

Discrimination and Employment. Kavanaugh applies, in a straightforward fashion, existing doctrines limiting lawsuits claiming discrimination or retaliation based on speech. For instance, in LeFande v. D.C., 841 F.3d 485, 496–97 (D.C. Cir. 2016), he agreed that the standard Pickering-Connick "balancing test" for whether a government employee's speech is protected permitted a police department to fire a cop for derogatory emails sent to supervisors. In Moore v. Hartman, 704 F.3d 1003, 1004 (D.C. Cir. 2013), he agreed that the law was unsettled about whether an arrest in retaliation for speech is insulated from suit when there is probable cause for the arrest, and therefore the officers enjoyed qualified immunity because the right was not "clearly established." (Notably, the Supreme Court just accepted cert to resolve that question of law.) This application of existing doctrine, though unremarkable, has the impact of making it more difficult to vindicate free speech rights.

Defamation and Anti-SLAPP. Kavanaugh has applied familiar First Amendment doctrine to limit defamation suits, and in doing so has explicitly recognized that defamation litigation can chill speech. In 2017 he wrote "[t]he First Amendment guarantees freedom of speech and freedom of the press. Costly and time-consuming defamation litigation can threaten those essential freedoms. To preserve First Amendment freedoms and give reporters, commentators, bloggers, and tweeters (among others) the breathing room they need to pursue the truth, the Supreme Court has directed courts to expeditiously weed out unmeritorious defamation suits." Kahl v. Bureau of Nat'l Affairs, Inc., 856 F.3d 106, 109–10 (D.C. Cir.), cert. denied sub nom. Von Kahl v. Bureau of Nat. Affairs, Inc., 138 S. Ct. 366, 199 L. Ed. 2d 269 (2017). In Kahl, he rejected a defamation case by a prisoner who claimed that a press summary of his case falsely attributed a prosecutor's harsh statements to the sentencing judge. Kavanaugh applied speech-protective First Amendment doctrines familiar to defamation lawyers and found that the prisoner had not offered any evidence that the publication acted with the requisite actual malice. Similarly, in Abbas v. Foreign Policy Grp., LLC, 783 F.3d 1328, 1332 (D.C. Cir. 2015), he held that questions posed in an article could not be treated as assertions of fact, and therefore could not be defamatory. He again used fairly sweeping rhetoric about the application of the First Amendment to defamation cases.

But Abbas is controversial because Kavanaugh found that the District of Columbia's local anti-SLAPP statute did not apply in federal court. That ruling has made some people — including some colleagues and friends — fear that he's not sufficiently protective of free speech. They are, with respect, wrong. State anti-SLAPP statutes provide a procedural vehicle for defendants to get rid of meritless attacks on speech and recover attorney fees. Kavanaugh is clearly in favor of anti-SLAPP statutes in concept — in Abbas he acknowledges their purpose and importance. His ruling that state (or, in this case, District) anti-SLAPP laws don't apply in federal court is based on a rather wonky and esoteric area of law — which state laws apply in federal courts when state-law claims are tried there? Put extremely broadly, substantive state laws apply, but procedural state laws do not. There have long been disputes over how to treat state anti-SLAPP laws under this analysis, because they have both substantive and procedural elements. Other smart judges — including ones quite protective of the First Amendment — agree with Kavanaugh on this. I like anti-SLAPP laws very much, and from a result-oriented perspective I like to see them apply in federal court, but Kavanaugh's take here is not extreme and has to be viewed in the context of his strong defense of First Amendment rights in defamation cases. We need a federal anti-SLAPP law.

Conclusion. In conclusion, Kavanaugh's work on the D.C. Circuit show a judge strongly protective of free speech rights, and part of the trend of applying free speech doctrines both to classic scenarios and to government regulation. His stance on telecommunications and elections laws will get him painted as part of the "weaponize free speech" movement by results-oriented thinkers. He's strong on First Amendment limits on defamation law and his approach to anti-SLAPP statutes do not, as some have suggested, signal that he wants to make defamation cases easier. But though he might help upset applecarts by applying the First Amendment to regulatory schemes, and will not uphold broad speech restrictions, he will likely not overturn doctrines that make it hard for individuals to recover for speech violations.