Updating our Apr. 29 item: “A law professor who sued two former students for defamation has dropped his suit after the school’s interim dean said there is no evidence he is a racist. Law professor Richard Peltz of the University of Arkansas at Little Rock told Inside Higher Ed that he sued to get his reputation back. ‘This suit was never about money,’ he said. ‘I feel that now with the university’s support, I am on the road to repairing my reputation.’” (Debra Cassens Weiss, ABA Journal, Nov. 17).

“The Juneau-Douglas (Alaska) School District and former student Joseph Frederick have reached a settlement in the ‘Bong Hits 4 Jesus’ case …. The school district will pay Frederick $45,000, [and] it is ‘required to hire a neutral constitutional law expert to chair a forum on student speech’ at its high school at a cost of up to $5,000.” (DRJ @ Patterico, Nov. 6; earlier).

P.S. And, yes, to clarify in response to commenter Melvin, the student lost his high-profile case last year before the U.S. Supreme Court. Imagine what the school would have had to pay if he’d won.

[Note: see important update/P.S. at end].

As you may recall, I wrote a piece last week for City Journal taking issue with various calls around the liberal blogosphere for having the McCain-Palin campaign investigated or even prosecuted for supposed incitement to violence against its opponents (a charge for which credible evidence appears severely lacking in the first place). Along the way, I criticized a Concurring Opinions post by University of South Carolina associate professor Susan Kuo in which Kuo first endorsed the charge that the Republicans were engaged in “character assassination” and “peddling fear, hate, and outrage to an audience that appears highly susceptible to this message” and then helpfully laid out potential theories under which criminal liability might be assigned to inflammatory campaign speech of such a sort. I said I found it bizarre that Kuo entirely omitted mention of the First Amendment to the U.S. Constitution, and went on to cite a relatively recent (1982) case in which a unanimous Court had cited the First Amendment as protecting even fairly extreme language of incitement which was soon thereafter followed by actual violence. These circumstances, I concluded, virtually ensure that no American court would countenance a prosecution of McCain, Palin, or their campaign staffs for incitement on current evidence absent a rapid and spectacular change in Constitutional jurisprudence from its present stance.

Now Professor Kuo has responded in a new post at Concurring Opinions by calling me names. She writes that it was predictable that “the Thought Police” — she links that phrase to my piece — would quickly emerge to “chastise” her “for committing crimethink”.

Before turning to this amazing charge and unpacking its heavy freight of irony, let’s dispose briefly of a couple of Kuo’s incidental points. First, she claims I champion the idea that “the mere existence of the First Amendment invalidates the notion of criminal liability for political speech”. In fact, as even a hurried reading of my post should have revealed, I made just the opposite point: I noted that there are some circumstances (such as, but not necessarily limited to, intent to incite violence combined with co-ordination with those who commit the bad acts) where notwithstanding the Amendment political speech can cross a line into crime. I also noted that reasonable minds could differ about whether the Supreme Court drew the line on incitement in the right place in its 1982 case. In short, Kuo attributes to me an extreme position of her own invention.

Kuo also suggests that her post merely laid out a hypothetical (or “thought experiment”) about what the law might do as opposed to prescribing what it should do. I have no problem with hypotheticals and have been known to use them myself, recognizing that they can be (though I don’t think they were in this case) a bracingly non-normative device in which the actual prescriptive views of the narrator are irrelevant or impossible to discern. I simply think this hypothetical was rendered both bizarre and misleading by its omission of the First Amendment, by which the courts of this land have greatly curtailed the scope of criminal liability for incitement.

Now back to the question of who should get tagged with the dismissive Orwell-invoking cliche “Thought Police”. Let’s review the bidding. Sarah Palin and GOP surrogates stir up controversy by using blunt and divisive language to question Barack Obama’s judgment in the Bill Ayers matter. Voices around the liberal blogosphere then call for Palin & Co. to be criminally investigated and even prosecuted for riding this campaign issue too hard. Kuo, entering the debate, does not call these bloggers and Huffington Post writers “Thought Police” for suggesting that speech that offends them be subject to legal sanction, but instead conveys their views uncritically if not sympathetically. She then takes up her hypothetical of possible enforcement action against McPalin, outlining theories under which prosecutors might bring such charges and judges might agree to impose punishment, but does not label these hypothetical prosecutors or judges “Thought Police” for punishing the impassioned expression of political opinion. No, the only time the Thought Police make an entrance at all is after the fact, when someone presumes to criticize her. Only then does she detect, with fearful intake of breath, the sound of the hobnailed boots ascending the stairs. And it turns out to be that scary libertarian bogeyman, me!

I suppose I should take offense, but I haven’t managed to get past the comic aspect (& Ambrogi, Legal Blog Watch).

Important P.S.: I heard from Prof. Kuo herself this afternoon and we had a talk that was pleasant and in no way confrontational. She said her second post, to which this one responds, was dashed off in a spirit of light-hearted banter and that the last thing she meant was to call names or give insult. Obviously, it came across differently to me, and I reacted as one might to a seriously meant attack. As I noted, almost everyone who blogs has had the experience of writing something intended as funny that fails to register that way with part or all of the audience. And it’s probably also true that, as someone tender of my libertarian credentials, I’m especially apt to have my buttons pushed by any suggestion of being cast as Thought Police. Anyway, I’m glad to take Prof. Kuo at her word when she says she meant no offense, and I hope commenters at this site as well as Concurring Opinions will do the same (see also update post).

[Cross-posted from Point of Law]. I’ve got a new piece just up at City Journal in which I examine last week’s boomlet of interest around the liberal blogosphere in the notion that by riling up campaign crowds about Obama’s links to Bill Ayers, John McCain and (especially) Sarah Palin have engaged in “incitement to violence” of a “borderline criminal” nature that perhaps should even draw the attention of the Secret Service or FBI. (For examples of this boomlet, look among the several hundred occurrences of “Palin + incite” at Technorati between October 7 and 13; I also include a sampling as links in my piece). The article originated in a short post at Point of Law that City Journal asked me to expand into a longer treatment. I must say I find it fascinating that many bloggers, Huffington Post writers, etc. could so casually jettison the hard-won victories of free-speech liberalism, which fought long and hard against “incitement” theories by which criminal penalties might be applied to inflammatory speech. The idea of exposing your opponents to investigation or even arrest because you don’t approve of the contents of their speeches doesn’t seem like a particularly liberal one to me.

More: Stephen Bainbridge takes note.

A revived Fairness Doctrine might just do it (Brian Anderson & Adam Thierer, New Criterion, Sept.)(h/t Erin C. on Facebook).

The idea does seem to be in the air (Coyote, Aug. 5; Alex Lockwood, Jul. 31 but note Aug. 4 post backtracking somewhat). Lockwood writes from the U.K., which of course lacks our First Amendment. On the idea of staging show trials of energy executives for propagating incorrect opinion, see Point of Law, Jun. 23, as well as Kivalina suit coverage.

Canada’s speech-tribunal censorship, writ large? “A coalition of Islamic states is using the United Nations to enact international ‘anti-defamation’ rules”. Among entities to protected from such “defaming”: religions.

Susan Bunn Livingstone, a former U.S. State Department official who specialized in human rights issues and also spoke to the July 18 congressional gathering, said the developments at the UN are worrisome. “They are trying to internationalize the concept of blasphemy,” said Livingstone at the panel. She contrasted “the concept of injuring feelings versus what is actually happening on the ground — torture, imprisonment, abuse.” And, she added, “They are using this discourse of ‘defamation’ to carve out any attention we would bring to a country. Abstractions like states and ideologies and religions are seen as more important than individuals. This is a moral failure.”

The fact that the resolutions keep passing, and that UN officials now monitor countries’ compliance, could help the concept of “defamation of religions” become an international legal norm, said Livingstone, noting that when the International Court of Justice at The Hague decides what rises to the level of an “international customary law,” it looks not to unanimity among countries but to “general adherence.” “That’s why these UN resolutions are so troubling,” she said. “They’ve been passed for 10 years.”

(Luisa Ch. Savage, Maclean’s, Jul. 23, via Rick Sincere). More from the author at her Maclean’s blog, with hundreds of reader comments, and from Somin @ Volokh.

• New York attorney suspended from practice after attempting as guardian to extract $853,000 payday from estate of Alzheimer’s victim [ABA Journal, Emani Taylor]
• Bought a BB gun to fend off squirrels, now his 20-year-old son faces three years for bare possession [MyCentralJersey.com via Zincavage]
• U.K.: “Sports clubs face being put out of business following a landmark court ruling forcing them to be liable for deliberate injuries caused by their player to an opponent.” [Telegraph]
• Prosecutors in Norwich, Ct. still haven’t dropped their case against teacher Julie Amero in malware-popup smut case. Why not? [TalkLeft, earlier]
• Dealership protection laws, deplored earlier in this space, work to make a GM bankruptcy both likelier and messier [The Deal]
• Strange new respect for talk show host Joe Scarborough in quarters where conservatives are ordinarily disliked? Some of us saw that coming [NYMag]
• Following Rhode Island rout of lawsuit against lead-paint makers, Columbus, Ohio drops its similar case [PoL, Akron Beacon Journal editorial]
• In latest furor over free speech and religious sensitivity in Europe, Dutch authorities have arrested cartoonist “suspected of sketching offensive drawings of Muslims and other minorities” [WSJ; "Gregorius Nekschot"]

• Are plaintiffs’ attorneys judge-shopping by filing and dismissing and refiling identical class-action complaints in the highly-publicized restaurant menu case against Applebee’s? [Cal Biz Lit]

• You won’t be surprised that most of the nine worst business stories picked by BMI involve spoon-feeding by plaintiffs’ attorneys to a credulous press. [Business & Media Institute]
• “There’s no justification whatsoever for the agency to take any kind of action,” said Julie Vallese, a spokeswoman for the Consumer Product Safety Commission. “The claims being made about the dangers of shower curtains are phantasmagorical. It’s ridiculous.” Yeah, but the lawsuits are bound to happen anyway. [NY Daily News]
• Jack Thompson stays in the news when U.S. Marshals pay him a visit after a letter to a judge. [GamePolitics (h/t J.L.)]
• “A City lawyer who is demanding £19 million in compensation for work-place bullying faked a nervous breakdown to secure a larger payout, an employment tribunal was told.” [London Times via ATL]
• Did defensive medicine almost kill a patient when doctor worries more about potential lawsuit than whether nurse could save patient’s life? Heck if I know, but the underlying medicine is debated in the comments. [EM Physician blog]
• Hair-stylist fined £4,000 for “hurt feelings” after refusing to hire a Muslim stylist who wouldn’t show her hair at work. [Daily Mail (h/t Slim); earlier on Overlawyered]
• Disturbing turn in the Adam Reposa disciplinary hearing over his obscene gesture in court: state bar introduces satirical magazine as evidence because they “thought it was indicative of Reposa’s lack of respect for the law and the court system.” [Texas Lawyer/law.com] Mind you, this is the same Texas legal discipline system that refused to take action against Fred Baron and gave a slap on the wrist to the lawyers who tried to fake evidence in a product liability suit against Chrysler. As long as your priorities are straight.

The furor over the Kozinski web site pseudo-scandal over what Wonkette calls “the sort of naughtiness you’d find in the dirty birthday cards section at Spencer Gifts” has caused Judge Alex Kozinski to recuse himself from the obscenity trial, resulting in a mistrial. Kozinski is known for his ethical rectitude, which is perhaps why he did so, but one wishes that he didn’t permit the appalling LA Times coverage to create a perception of a perception of a bias, much less agree that that provides grounds for recusal. But with some implausibly calling for his resignation, discretion is perhaps the better part of valor. Still, as Jesse Walker notes, “There has been no shortage of free-speech trials in which the presiding judges had a moral objection to essentially innocuous material. I don’t see any reason why such a case shouldn’t be heard by a jurist with a history of tolerance.” And one wishes that the conservatives calling for Kozinski’s resignation would use that powder for Ninth Circuit judges who act ultra vires rather than for the jokes judges share in their own time.

Continue Reading »

The Patterico blog has details of some of the coarse humor that was available on Judge Alex Kozinski’s website. Kozinski can be criticized for indiscretion in failing to realize that his website was publicly accessible, and opening himself up to this politically-motivated silliness, but I fail to see why a judge’s e-mail habits should be a scandal. Yes, Kozinski apparently has an immature sense of humor, but we already knew that.

Of more interest is that the attorney peddling this, Cyrus Sanai, has been targeting Kozinski for years. Perhaps because of this Recorder article of September 23, 2005, responding to a Sanai op-ed criticizing the Ninth Circuit, and written by Kozinski:

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In Alex Kozinski; Cyrus Sanai; free speech; judges; scandals

Daniel Radosh is skeptical that the New York Attorney General Andrew Cuomo’s settlement with ISPs Verizon, Sprint, and Time Warner Cable is anything other than a publicity-stunt shakedown. The Financial Coalition Against Child Pornography argues that it is actually counterproductive. Orin Kerr notes that it is of questionable constitutionality. Declan McCullagh suggests, as does David Kravetz, that the ISPs will comply by shutting off customers’ access to broad swaths of Usenet well beyond anything alleged to contain illegal material.

All-free-speech edition:

• Christiansburg, Va. land developer Roger Woody sues local bloggers and two other critics for more than $10 million for speaking ill of big dirt pile on one of his properties [Roanoke Times, editorial; more on Woody's dealings]
• Lots of developments on free speech in Canada: trial begins in Vancouver in complaint against Mark Steyn and Maclean’s over book excerpt critical of Islam [his site]; after defending speech-restricting network of human rights tribunals, Conservative government in Ottawa now says it will take another look [Ezra Levant, with much other coverage including favorable nods from Toronto literati]; Alberta tribunal orders conservative pastor to “cease publishing in newspapers, by email, on the radio, in public speeches, or on the Internet, in future, disparaging remarks about gays and homosexuals.” [Levant; Calgary Herald; Gilles Marchildon, Egale.ca] (more, Eugene Volokh)
• Brief filed for Kathleen Seidel in her resistance of abusive subpoena, with assistance of Public Citizen [her site, theirs, and our comment section]; Seidel is among autism bloggers profiled in NY mag [w/pic]; profile of thriving Boston “vaccine injury” law firm” Conway Homer & Chin-Caplan [NLJ; Seidel's critical comments on that firm]
• Views critical of religion unlawful unless expressed in respectful and non-scoffing way? Lots of precedent for that approach, unfortunately [Volokh on Comstock]
• Score one for fair use: judge denies Yoko Ono preliminary injunction against creationist film’s use of 15 seconds of John Lennon’s “Imagine” in context implicitly criticizing song’s point of view [Hollywood Reporter, WSJ law blog, Timothy Lee/Ars Technica]

…can get you in considerable trouble with the City of London constabulary, it seems. (Volokh; Sullum, Reason “Hit and Run”).

• Canada free speech: Islamic group files complaint against Halifax newspaper over cartoon of burka-wearing terror fan; two more libel suits aimed at online conservative voices; growing furor over complaint against Steyn/Macleans [National Post]
• More than 5,000 students committed crimes last year in Philadelphia schools, but none were expelled — consent decrees tying system’s hands are one reason [Inquirer]
• U.K.: Man threatened with legal action for flying pirate flag as part of daughter’s birthday party [Guardian]
• Bankruptcy judge doesn’t plan to accept at face value Countrywide’s claim that it generated false escrow documents by mistake in foreclosure [WSJ, WSJ law blog]
• Amid bipartisan calls to step down, Ohio AG Marc Dann [Apr. 19, May 6] hires an opposition researcher [Adler @ Volokh] on top of Washington lobbyist [Legal NewsLine], after being rebuked by judge for political suit [Dispatch]. And where’s that ethics form on the Chesley flight? [Dayton Daily News]
• Missouri med-mal claims fall sharply after legislated damages curb [Springfield News-Leader]
• More on Dartmouth prof Priya Venkatesan, the one who wants to sue her students — as suspected, she’s a devotee of deconstructionist Science Studies [Allen/MtC; earlier]
• Covert plan to sabotage Chinese economy? [Wilson Center event]
• What, never? Well, hardly ever: Docs continue to assail notion that various complications such as patient delirium, clostridium difficile infection, iatrogenic pneumothorax, etc. — not to mention falls — are “never events” [KevinMD various posts; earlier]
• Mich. high court agrees anti-gay-marriage amendment bars municipal health benefits for domestic partners, just what key proponents had claimed it wouldn’t do [Rauch @ IGF, Carpenter @ Volokh, earlier]
• Private service rates the safety of charter air providers — but can it afford the cost of being sued after giving a bad rating? [Three years ago on Overlawyered]

An Arizona antiwar activist has been much criticized for selling a T-shirt with the slogan “Bush Lied, They Died” along with the names of the more than 4,000 U.S. servicemen killed in the war. Parents of a soldier killed in action in Iraq are suing, saying the use of their son’s name has caused them emotional distress; they want class-action status on behalf of all the parents of other soldiers killed in action, amounting to $40 billion. The suit’s Amended Complaint does little to advance the dignity of its cause with assertions like, “Most respectfully, this is a concept that even a mentally-challenged monkey could grasp.” (Howard Wasserman, Prawfsblawg, May 5; Balko, Reason “Hit and Run”, May 6; The Smoking Gun, Apr. 23).

Richard Peltz, a specialist in media and First Amendment law at the University of Arkansas-Little Rock, says he feels like a pariah after two students active in the school’s Black Law Students Association made “false accusations of racism” about him. Civil libertarian Harvey Silverglate, often quoted on the subject of campus free speech, contends that even if Peltz is correctly characterizing the students’ talk about him, a lawsuit is the wrong way to proceed. (Above the Law, Apr. 29; Michelle Hillen, “Experts watch as professor sues students”, Arkansas Online, Apr. 27). More: Bainbridge, Althouse, Caron (rounding up links).

[Bumped on breaking news: A federal court in New Hampshire has quashed the subpoena and ordered attorney Clifford Shoemaker to show cause why he should not be subjected to sanctions. Also: Orac. Earlier Monday post follows:]

Autism blogger Kathleen Seidel reports that the online free speech project at Public Citizen has agreed to provide her with legal assistance in responding to vaccine lawyer Clifford Shoemaker’s subpoena (see earlier coverage here, here, and here). One way to read this is as a fairly devastating commentary on just how weak Shoemaker’s position is, since there is ordinarily no more potent public presence on behalf of the plaintiff’s side in pharmaceutical litigation than Public Citizen. Seidel also has discovered that as a Shoemaker target she is in distinguished company:

I learned that on March 26, 2008 — the same afternoon that I was greeted at my doorstep with a demand for access to virtually the entire documentary record of my intellectual and financial life over the past four years — Dr. Marie McCormick, Sumner and Esther Feldberg Professor of Maternal and Child Health at the Harvard School of Public Health, and Professor of Pediatrics at Harvard Medical School, was subjected to a similar experience at her Massachusetts home.

From 2001 to 2004, Dr. McCormick chaired the Immunization Safety Review Committee of the Institute of Medicine (IOM), charged with analyzing and reporting on data regarding the safety of vaccination practices. …As a result of her voluntary work on the committee, Dr. McCormick has found herself a frequent target of suspicion by plaintiffs, their attorneys and advocates, and opponents of vaccines, who disagree with its conclusions, and whose legal and political positions are not supported by its reports.

McCormick’s lawyers are likewise seeking to quash the subpoena. Much more here (& Beck & Herrmann, Orac, Pharmalot).