Martin Shkreli engaged in protected speech

Martin Shkreli, the CEO that so-called news organizations inappropriately refer to by the nickname “pharma bro”, recently had his bail revoked:

Shkreli, 34, was hauled off to the Brooklyn Metropolitan Correctional Center on Wednesday night after a judge revoked his bail over a Facebook posting that offered $5,000 to any follower who would grab a hair off Hillary Clinton’s head during her book tour.

The former pharmaceutical executive β€” who first came to national attention for hiking the price of a life-saving drug β€” insisted the posting was a joke. The judge, however, wasn’t laughing.

(To be clear, I don’t actually care that he has been nicknamed “pharma bro”. I just think it’s dumb that allegedly professional news organizations have taken to actually using that moniker.)

Here’s Shkreli’s Facebook post:

Shkreli

This is what is immediately clear about that post. 1) It has absurd premises. 2) His offer is absurd. 3) It was posted to his Facebook page, which is run for the sake of being absurd and/or trolling.

None of those things were taken into account by Judge Kiyo Matsumoto. Furthermore, she failed to take into account any of Brandenburg. As a result, she made this incorrect and irresponsible statement:

“This is not protected by the First Amendment,” U.S. District Judge Kiyo Matsumoto said before revoking the $5 million bond. “There’s a risk that somebody may take him up on it.”

Matsumoto had wide latitude to revoke Shkreli’s bail, so it’s perplexing why she would so intentionally spread misinformation. She ought to be embarrassed that she didn’t even pretend she was applying any basic First Amendment test here. This is a Maeghan Maloney-level understanding of free speech rights.

Shkreli’s bail status notwithstanding, if someone wants to show that his Facebook ‘offer’ was not protected speech, they need to apply the three-pronged Brandenburg test – something the judge didn’t do. Did his speech demonstrate 1) intent, 2) imminence, and 3) likelihood of lawless action? I don’t think it showed a single one.

Let’s start with intent. (This can include instances where a person should have reasonably expected his speech would result in lawless action.) Look at the post and how absurd it is at every turn. He said the Clinton Foundation has murdered people. He said he potentially already has Clinton’s DNA. He offered a tiny sum for a huge risk. It’s wildly clear that he isn’t even remotely serious. Even when he responded to someone where he said “I’m serious”, it’s impossible to believe him. He’s a 4chan poster without the anonymity. No reasonable person could believe that this was a real offer.

Next is imminence. How could this possibly result in imminent lawless action? Someone reading that post would have to 1) be in the same area as Clinton, 2) know she was in the same area, 3) know where to find her in the very near future, and 4) have a way to get close to her. It is 100% impossible that Clinton could have been in imminent danger. Even if a person was in the same city as Clinton and knew it, and even if she was in public at the very moment Shkreli made his Facebook post, that person would still have to have a way to get to her and to get access to her. And if they were across town and had to get in their car to drive to a convention center where they had to buy a ticket to get in? You’ve just lost your imminence.

And finally, likelihood. Give me a break. For it to be likely that someone would take him up on this offer, all of the following would have to be true of someone who read his post:

    They would have to be unaware that Shkreli is a dedicated troll.
    They would have to believe he was serious.
    They would have to be motivated by $5,000 per hair that had a follicle.
    They would have to think that more than one follicle was necessary for some reason, and that’s why Shkreli was incentivizing the capture of multiple strands.
    They would have to believe that The Clinton Foundation murdered one or more people.
    They would have to believe that Shkreli had Clinton’s DNA already.
    They would have to be willing to risk their freedom at the least and their life at the most.
    They would have to know where Clinton was and when she could be found in public.
    They would have to be near that location.
    They would have to be able to get near Clinton’s head.

There are two things in that list that are likely. One, people actually do think the Clintons have murdered people, so it’s not a stretch to say there are probably people who think their foundation has been complicit in killing. Two, I’m sure Clinton’s tour schedule has been published somewhere. But other than that? You could argue that it’d be possible to yank a hair from her head during some fan photograph session, but I don’t imagine that would go unnoticed by her Secret Service detail.

Martin Shkreli’s Facebook post fails every single part of the Brandenburg test. Every. Single. Part. It’s not even a close call that what he said was entirely protected speech – at least outside a bail hearing. And, once again, that’s what makes this so perplexing. Judge Matsumoto didn’t need to make up an incoherent First Amendment claim in order to justify revoking bail. She could have just done it. She ought to be embarrassed at her actions on the bench.

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Joe E. Kirk is a douche

Students at Sam Houston State University (SHSU) recently created a free speech wall on campus in response to a controversial social media policy instituted by their school. Some people wrote things about legalizing pot, others made funny quips, and still others made topical and political comments. One of those comments said “FUCK OBAMA”. Another person wrote “BUSH” under “OBAMA”. This is all protected free speech, of course, but that didn’t stop Professor and full-time douchebag Joe E. Kirk from vandalizing the poster:

But what happened next is what’s so outrageous. An SHSU faculty member offended by the insult to President Obama reportedly used a box cutter to cut the expletive out of the wall after students refused to accede to his demand to censor that particular speech.

In response, the students called campus ‘police’ to report the vandalism. One might think that Kirk would have been ordered to leave the area, what with his unconstitutional, douchebaggery destruction of private property. But nope. This happened:

But after the students called the campus police to report the vandalism, they were threatened by a campus police officer with charges of disturbing the peace and required to remove all profanity from the wall, or else take it down! Under this pressure, the students dismantled their “free speech wall”…

What usually happens in events like this is that the wrong-headed authority figures will defend their moronic actions. This time is no different:

Later that day, as reported by SHSU student newspaper The Houstonian, University Police Department Deputy Chief James Fitch stated that because Kirk was “offended by the use of the profanity,” its use “qualified it as disorderly conduct, a misdemeanor.”

That is a blatantly wrong statement. The courts have long held that free speech is free speech, no matter how indecent it may be. The above link discusses the specific cases, but this stuff should be basic knowledge to every American. The University Police, James Fitch, and especially Joe E. Kirk are all censorious, ignorant, douchebags. Each and every one of them ought to know better.

Oh, by the way: FUCK JOE E. KIRK.

originally via Popehat

New Hampshire plays catch up

New Hampshire has caught up with most of New England by passing a bill to allow same-sex marriage.

New Hampshire became the sixth state to legalize gay marriage after the Senate and House passed key language on religious rights and Gov. John Lynch β€” who personally opposes gay marriage β€” signed the legislation Wednesday afternoon.

I’ve had discussions with people who claim Lynch is acting out of political pressure. I don’t see evidence for that. It’s certainly a possibility, but the man is hugely popular and won by landslides in his last two elections. At the very least, it seems just as likely that he was caving to political pressure when he initially said he was against same-sex marriage. In fact, why not more? He had more to gain then than he stands to lose now.

Lynch, a Democrat, had promised a veto if the law didn’t clearly spell out that churches and religious groups would not be forced to officiate at gay marriages or provide other services. Legislators made the changes.

The revised bill added a sentence specifying that all religious organizations, associations or societies have exclusive control over their religious doctrines, policies, teachings and beliefs on marriage.

I believe this is correct. Morally, it isn’t, of course. It’s bankrupt in that sense. However, in a legal sense – and this is a legal issue – religions are protected by the First Amendment in this regard. Time may very well conclude that they are not, but it would appear that they are afforded these protections right now. Of course, the KKK is afforded First Amendment protections.

It also clarified that church-related organizations that serve charitable or educational purposes are exempt from having to provide insurance and other benefits to same-sex spouses of employees.

This, however, is not constitutional. This moves from the realm of protecting religious beliefs to harming people. If a religious organization hires a married homosexual, it is not germane to their beliefs to deny insurance. We’re talking about secular legal and tax issues, not religion at this point. New Hampshire went to far here. They are allowing religion to trump individual rights.

On the up side, discrimination has been significantly lessened in New England over the past few months.