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 — who first came to national attention for hiking the price of a life-saving drug — 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:


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.


Darrick Banda for DA

It isn’t often that I cross political lines and endorse a Republican. I’m a pretty liberal person, and while Democrats often don’t match up with my views as well as I would like, it’s definitely the candidates with the “D” next to their names that most closely reflect my politics. However, this election is a little different. For 2012, I have an overwhelming reason to endorse Darrick Banda for DA: His opponent is Maeghan Maloney.

As many readers know, Maeghan Maloney attempted to sue me on behalf of her quack husband, Christopher Maloney. They believed I had made libelous statements by calling “Dr.” Maloney a quack. (He practices the scientifically bogus discipline of naturopathy.) However, they soon backed away from their pursuit of that claim when I brought on an excellent defense team – a defense team made up of three lawyers who were working pro-Bono because they all value the protection of basic free speech rights. Here is what one of them, Ken, had to say about Mrs. Maloney:

5. Dr. and Ms. Maloney’s demand for injunctive relief, to me, perfectly represents how unprincipled, contemptible, un-American, and freakishly censorious their entire threat scheme was. The complaint they served on Mr. Hawkins was incomplete — it cut off at the seventh page, so you can’t tell what’s in the prayer for relief — but here’s what they demand in the text of the injunctive relief cause of action:

35. . . . . Injunctive action is necessary to prevent further expansion of Defendant Hawkins’ comments. A temporary restraining order, a preliminary injunction or a permanent injunction is necessary, as Defendant has refused to limit or remove postings.

36. Such injunctive action would need to apply all [sic] blogging and social media, as Defendant Hawkins has threatened he will repost all his material. It would also need to apply to all allied bloggers reposting Defendant Hawkins’ materials since several have explicitly offered to host him and maintain a copy of his blog. [Emphasis added]

That’s right — a Maine state legislator just suggested that a Maine court should issue an injunction prohibiting unnamed, unserved people — potentially including you — from re-posting what Mr. Hawkins had to say about Dr. Maloney.

And that was some of the nicer stuff he had to say.

Of course, Maloney isn’t the only reason I’m endorsing Banda. As it happens, I think Banda is more qualified for the job given his background. He has been involved with the DA’s office far more than Maloney and I believe he is a far more respected figure than she is. Moreover, this position is not one that is political in the same way a legislative job is. I think Banda recognizes that, whereas I’m not so sure Maloney does. (After all, she can’t seem to even recognize basic First Amendment rights.)

Vote Darrick Banda.

Advice to bad lawyers and people who become Internet famous

Shortly after Matthew Inman of The Oatmeal mocked some shitty website for threatening to sue him for some silly reason, the lawyer for said site of shit, Charles Carreon, went on a rampage. He started saying all sorts of stupid stuff, like that he was going to sue a couple of charities because Inman was raising money for them out of spite for Carreon. This has naturally only given the Internet more reason to hate assholes. Now push has come to shove and a suit has actually been filed against Inman. He sums everything up in his opening statement:

Dear Charles Carreon,

You’re making things worse.

As someone who has had experience with attempts at intimidation via legal shenanigans, I am quite familiar with this line of thinking. I used to often write that my legal opponents, Christopher Maloney and his terrible lawyer Maeghan Maloney, could never make things better. The best they could ever do was not make things worse. By continuing to chirp, they would (and did) only make life all the shittier for themselves. I was entirely right. I think Charles Carreon would do well to understand that.

Christopher Maloney and the lawsuit that almost was

Christopher Maloney, Q.E. - Quack Extraordinaire. via

We all know Christopher Maloney by now. He is the quack who, in conjunction with Andreas Moritz, worked to get my site shut down in February 2010. They were both upset that I had called them quacks, among a variety of other derogatory names, so they put forth their best efforts and succeeded in quieting FTSOS for 6 days. Of course, the Internet came to the rescue, worsening their lives while making the world a safer place. Once FTSOS came back online, things should have died down given a little bit of time. But of course, that didn’t happen. And it was their fault.

Moritz had little chirps here and there, but he eventually slunk away. Maloney, on the other hand, went on a crusade. He created a series of pages on his site well after the fact, responded to every critical post he could find in the world, and even started stirring the pot in threads on PZ’s site that had nothing to do with him. Then, eight months after the fact, he sent PZ a cease and desist notice. Of course, that just made things worse for him. A few months later, I got a similar notice. Following PZ’s lead, I uploaded the notice, called Maloney a quack, and went on with my day.

What did I mean then, and what do I mean now, by saying Christopher Maloney is a quack? Simply this: I mean that Christopher Maloney openly and aggressively promotes naturopathy, a bogus and unscientific ‘discipline’. Regrettably, it’s a bogus and unscientific discipline that the State of Maine sees fit to license. That’s as embarrassing as if Maine licensed astrologers. I’ve repeatedly written about why naturopathy is bunk, and why Christopher Maloney’s advocacy of it is quackery. As I’ve specifically said before, I’m sure Christopher Maloney is qualified in the eyes of the State of Maine to practice naturopathy – it’s just appalling that the state endorses such things, and appalling that Maloney promotes such bunk.

Move forward several more months and I get a second letter delivered to me. This one is actually threatening a lawsuit. (In fact, its vague wording led me to believe that it had actually been filed, but that was not the case. See a pdf of the lawsuit here.) I needed a lawyer.

Enter Ken White of Brown, White, & Newhouse, LLP and the law blog Popehat.

Like the call for Batman but with fewer gadgets and more resultant paperwork. Neat, though.

I contacted Ken because, while I could amply respond to the logical mistakes and factual errors that were strewn throughout the lawsuit for the sake of a blog post, I am not a lawyer. I don’t know the actual legal procedures involved, nor would it be prudent for me to defend myself alone anyway. Originally I was only seeking Ken’s help to put me in touch with people who could help me at reduced rates – I’m responsible with my money, but that doesn’t mean I have it laying around for lawyer fees – but to my delight, he offered his services pro bono.

Ken also recruited prominent First Amendment lawyer Marc Randazza. (I dare say, the man has more than a little kick and a little zest to his words. I love it.) I also sought out local counsel in case push came to shove and Maloney actually filed suit; Ken and Marc are both located out of state, so a Maine-based lawyer was necessary. I found and secured the help of Jed Davis, a Princeton and Yale man, of Mitchell & Davis. Needless to say, I had a heck of a team.

So let’s get the heart of the matter. Maloney and his lawyer/wife/state representative Maeghan Maloney sent me a lawsuit, ready to be filed with the courts, claiming I had committed libel and defamed Christopher. When I saw this, I thought the heart of the matter would be that either 1) I have called him a quack or 2) I have said he is not a doctor by scientific standards, but that there have been times when I haven’t explicitly spelled every bit of that out (i.e., I just left it at saying he isn’t a doctor). Number one is obviously a false premise for a libel suit. As Ken wrote in a post about Maloney’s threat to PZ, the term “quack” is protected opinion under the First Amendment in the way I used it. Number two, which I suppose would have been their strongest route, would have been dismissible on grounds that it ignores the context of FTSOS and the fact that I have acknowledged that Maloney is a “doctor” by Maine state standards in plenty of places.

No Habla Español

So which was it? Well, the first one. Sort of. See, the Maloneys were confused. While Maeghan did display a tremendously awful understanding of the law, arguing that the term “quack” is not protected because it implies her husband is unqualified to be a naturopath (it doesn’t, and I’m sure he is qualified to be a naturopath; it doesn’t take much to be a quack, after all), she and her husband also argued that I had been harassing the guy for 2 years. Two straight years. How is that, you ask? Well, first we need to get a fundamental misunderstanding of the Internet under our belts.

They were under the impression that the Tag Cloud widget I had on the side of FTSOS was something I maintained and tended to every day. They believed it was something I was actively messing with in order to manipulate Google searches for “Christopher Maloney Maine” under 24 hour searches. (It took forever to get them to specify that they were talking about 24 hour searches, not regular searches.) Of course, this is silly. A Tag Cloud is an automated feature common to virtually all blogs, including Maloney’s. (I checked his theme and it is an option for him.) Moreover, with or without the widget, a regular Google search showed a whole host of sites, some with and some without it, before mine.

It seems serendipitous that this happens to be a duck.

As it turns out, the widget was probably affecting 24 hour searches. But not in the way the Maloneys thought. If I made a post and someone searched “Christopher Maloney Maine” with the quotations, my blog with that new post would show up. But of course, that post had nothing to do with Maloney. In fact, a search of his name will show that I have only written about him three times this entire year before today. It was delusional of them to believe I was obsessing over the quack every day for two years straight. They simply did not understand the technology at hand. And despite this, it was the primary premise for their lawsuit (making their case more about harassment than defamation, but whatever – they were wrong either way).

But let’s get down to the actual law aspects. As I said, they were claiming that by calling Maloney a quack, I was implying that he was unfit to practice naturopathy under his licensure. Since the state of Maine says otherwise, and since I don’t have any basis for disagreeing, that would be a false statement on my part. If the law worked in weird and inconsistent ways like this, they might have a case. But as a simple Google search would have shown them, they didn’t know what they were talking about. From Ken’s post:

I wonder whether, before sending her feckless and thuggish missive, Meaghan Maloney researched how courts have treated the word “quack” in defamation cases. I did. It took me about five minutes to learn that multiple courts in multiple states in multiple decades have found that calling someone a “quack” is protected opinion and not subject to a defamation suit, particularly when the context shows that it is hyperbole. Yiamouyiannis v. Thompson, 764 S.W.2d 338 (TX 1989) (calling an opponent of flouridation and vaccines a “quack” was pure opinion protected by the First Amendment); Dowling v. Livingstone, 108 Mich. 321 (1896) (it was opinion, not defamation, to refer to an anti-immigration scheme as a “quack remedy”); Gonzalez v Gray, 69 F.Supp.2d 561 (S.D.N.Y. 1999) (husband’s claim that his wife had been having “sex with a quack” was opinion, not defamation against the doctor); Spelson v. CBS, INC., 581 F.Supp. 1195 (N.D. IL 1984) (statement that “nutritionist” treating cancer patients with “vitamins, minerals, and extracts of raw animal organs” was a “cancer quack” was protected opinion). In the rare cases where courts have not protected terms like “quack,” they were used in a context specifically suggesting untrue facts. See, e.g., Nasr v. Connecticut General Life Insurance Company, 632 F.Supp.1024 (E.D. IL 1986) (though calling a doctor a “quack” has been found to be protected opinion, when used in manner suggesting false underlying facts, it was actionable). Courts have made similar findings regarding other epithets, including “charlatan.” Ernst v. Basset, 521 So.2d 414 (La. 1988) (“charlatan” was non-actionable statement of opinion).

In other words, there is at least 125 years worth of case law on not merely libel/defamation cases, but on libel/defamation cases specifically dealing with the word “quack”.

I gather some might consider it bad form to quote any of the communications had amongst the lawyers involved, so I will only paraphrase the wonderfulness of our response. Essentially, it was 10 pages of this: “No, fuck you, and if you sue, we’ll file an Anti-SLAPP motion, seeking attorney fees, and maybe sue you and your lawyer for malicious prosecution.” And while the lawyers were at it, I was ready to make this a public spectacle all over again. I had already secured a promise of help from Simon Singh. It would only have been a matter of hours before the Internet was once again buzzing with “Christopher Maloney is a quack”.

So the result? Well, Maloney wanted a settlement which stipulated that I would remove all tags of him from FTSOS, that I wouldn’t speak of him again in practically any writing, that I would delete all my past writings about him, and that I would pay his attorney fees incurred to this point. There was never any chance of me signing away my rights like that. In fact, there was a deadline placed on the attached agreement which I fully ignored before I was even able to obtain legal assistance. I may not know all the procedures involved, but I know I like my First Amendment rights. (I admit, though, it was tempting to find out just what it was Maloney’s wife had charged him for fees.) But once I did obtain assistance, I realized the value of throwing out a minor gesture of good will to avoid the nuisance of litigation. I know, I know. It’s so unlike me. Actually, I did try to just completely say no to the idea. A man who threatens me with a frivolous lawsuit deserves nothing.

But as I said, I am not a lawyer.

The best course of action, I came to understand, would be to avoid litigation all together. While all the case law and common sense is on my side, and while we would almost certainly prevail in both fighting the lawsuit and our subsequent malicious prosecution suit, the law is an uncertain thing. A judge unimpressed by a young-looking 20-something who has a couple of high-priced out of state lawyers may decide a (lawless) lesson needs to be taught. It’s unlikely, but certainly possible. Moreover, while these lawyers are generally high priced (at least in my world), they were doing the work pro-bono. They were there to assist me whatever my decision, but if a gesture of good will would get all of this put behind me while I still retained all my rights, then it would save everyone a lot of trouble.

I find it entertaining that this image even exists.

So the gesture of good will. Well, as I said, the Maloneys believed the Tag Cloud was something I was messing around with every day for the sake of tormenting some guy I’d never met (despite his invitation and subsequent refusal to actually meet in person). It wasn’t, but if that’s what they believed, then I decided to just offer to take it down. But nothing more. The thing really meant nothing to me, frankly, so it was no loss, and it was actually a reasonable offer. I clean up my site a bit and retain every single one of my rights. If that’s all it was going to take to make this nuisance go away, then great.

Of course, it wasn’t quite that straight forward.

At our offering of the removal, Maloney and Maloney came back with settlements that included ridiculous things like the effective silencing I mentioned (removing all tags, never writing of him again, etc). At one point they wanted to create a system where a third party arbitrator would be used to settle any future disagreements – and the costs of all that would be split. We refused each time. Eventually things came to a clear impasse. This was all being done under a tolling agreement in the first place, and that was about to expire. The Maloneys wanted to extend the agreement and continue negotiations, but there was no point. I would do no more than remove an inconsequential widget from my blog. If that wasn’t good enough, they were more than welcomed to sue. It would have been a delight to watch the Internet light up over an alt-med ‘doctor’ and his elected wife suing a college student over what amounted to a little name calling. My attorneys made it plain that we were locked and loaded and ready to fight.

So the Maloneys caved.

I agreed to take down the widget, but every single post about Christopher Maloney, every single tag of Christopher Maloney, and every single opinion I have ever expressed about Christopher Maloney remains. And none of it is going anywhere.

Ultimately, this is a good outcome. Sure, the ideal would be a big middle finger and nothing more, but this has all taken a bigger toll on me and my time than I thought it would. I work overnights and go to school full-time. My sleep schedule is just awful and my courses are not simple. The spring is shaping up to be even more difficult. My instincts tell me to be as pugnacious as always, but my preference for doing well in organic chemistry is stronger. I’m happy with the result, and I can’t thank Ken, Marc, and Jed enough.

P.s., Christopher Maloney is a quack.