My Style - Reclaim My Identity : July 2018

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.