To censor or not to censor

Posted on July 13, 2012 by Michael

There are two major arenas where censorship happens: publicly and privately. When it occurs publicly, it is generally illegal (in fact, by “publicly”, I only mean in instances where the question is a legal one). That is, a person who is prevented from engaging in public speech is a person who has had his First Amendment rights trampled. Of course there are all the caveats – threatening speech and gag orders and yelling fire in a crowded theater and things like that – but I’m not talking about those and they aren’t important for this post. What’s important here is when censorship occurs privately. Specifically, I want to talk about online censorship as wrought by people in administration positions, whether it be on a message board or a Facebook page or, especially, a blog.

Ken of Popehat (and that other little thing) recently wrote about his displeasure at the fact that one of his fellow bloggers had to close a thread due to the lack of civility in the comments. In response, a reader wrote to that other blogger, Patrick, and asked him how he felt about an individual’s role in moderating privately run forums and the like. Here is part of Patrick’s response:

I view Popehat as property: my property, held in common with three friends. For me, the inquiry stops there.

I choose to invest my time into Popehat for one reason, and one reason alone. I enjoy what results from it. I believe that Popehat is a great website, and I gain personal satisfaction from knowing that I have done my part to make it so…

But if I were forced, by compulsion or out of assumed moral obligation, to allow others to use Popehat for purposes I find repellent, the joy that I gain from this site would turn to ashes in my mouth. I would no longer be the master of this house: I would become a slave, working for no reward…

I wouldn’t work on a website that makes me angry, unless I am being paid obscene amounts of money. Since that will never happen, I will not allow Popehat to make me angry.

If it’s a choice between you and me, you will go. So that I can stay.

I’ve pasted his response together in pieces, but I think I’ve captured the gist of it.

I feel entirely different about censorship of this nature. Sure, if someone wants to censor what others write in a privately run space, I’m going to deem it stupid if the censored individual runs to a judge and jury, but I have no issue with the criticism that the censorious individual gets. In fact, I would like to join in: I generally view censorship as cowardly regardless of any legal questions that may exist.

I also find people who are willing to censor to be very untrustworthy. When I visit a new blog and leave a comment, I often have my first comment kept in moderation. That’s fine if the person is looking to filter out all the spam possible (or just too lazy to fix his settings), but if I leave a second comment and that is also kept in moderation, I am unlikely to continue with my posting. I do not spam and I do not troll, thus there is no reason to prevent my (or most other people’s) comments from immediately posting – except for the purpose of making a censor-based decision.

I want to mention another blogger for whom I lost nearly all respect when he not only proved himself inept at his profession, in my opinion, but also a FOX News-like liar regarding a particular issue. After we had a falling out – we aren’t even Facebook pals anymore :( – I continued to comment on a few of his posts, despite the reasonable risk that he might censor my comments. I don’t mean that as a personal jab but rather an acknowledgement of the fact that we are two individuals who do not like each other and I wasn’t allowing his comment sections to go as swimmingly as he might like. As it turns out, though, he has not censored me in the least. He hasn’t even threatened to do so. That I respect. That is how a blog administrator should behave. That is how I run my site.

Shifty gears slightly, one common theme to issues like this is for people to compare their blog or forum to their living room. “Why,” they say, “I would never allow someone to speak rudely to me or my other guests from my couch, so why should I allow it here?” I think that analogy fails. It only works insofar as one’s living room and one’s blog are both private. But my front yard is private property, just as my bedroom is. Does that mean it would be okay to walk about naked whenever I pleased? Of course not. Having one characteristic in common does not make two things equal (Nate‘s mother and bovine specimens excepted). The difference in this cases lies in the fact that a blog is essentially an open-invite to the public. Whenever I make a post, including this one, I am asking anyone and everyone to come into ‘my living room’ and tell me what they think. I would never do that with my real living room.

I want to be sure, though, that I’m not polarizing this issue. Like with most things, it isn’t all black and white. I have banned one non-bot person from FTSOS. He was spamming and trolling and had no interest in any sort of discussion. He was clogging up my Recent Comments widget to the point where he killed at least two discussions that were happening elsewhere. (People had no idea their comments had received a response and the posts only existed several pages deep, so the ability to see recent comments – the only lifeline for the comment sections – was severed.) His comments were also stupid, but that isn’t why I banned him. I banned him because he made my website logistically incoherent.

And there are other instances where I can understand someone censoring a post. If someone posts a link to lemonparty.org (consider context to be your warning), I would probably edit it. Not always, but probably. Or, let’s say, a blogger loses his spouse to cancer. If a person starts talking about the deceased as some evil person and other personalized vulgarities, I don’t think I would consider the blogger a coward for utilizing his “Move to Trash” feature.

All that said, I am against censorship on private forums – forums that are inherently designed as open-invites to the public. That means I have no respect for the closing of threads or banning of commenters at places like FTSOS or Popehat or any blog in 99% of the non-bot instances. “I don’t like what you’re saying” and “I don’t like how you’re saying that” are the two things administrators are telling everyone when they close things and ban people. That impresses me less than Brad Pitt impressed Shania Twain in 1998*. It’s a way to insulate one’s self from the so-called marketplace of ideas. Obviously no one wants to run a shitty market, but allowing others to meet a bad apple at one or two of your corners is a good thing. That’s reality. And if those bad corners turn into bad streets and then bad areas and then a bad market, that probably isn’t a reflection of a lax censor policy. In that case, there is likely something wrong with the sort of posts being made or the sort of people making the posts. Anything on the Internet can attract awful people, but awful things will attract them in clusters. (That is in no way a comment on Patrick or Popehat. I think Popehat is a fantastic site, and I would think that even if Ken had never helped me so much with a tough problem.)

Now, feel free to say whatever you want in my comment section.

*I’m on a 90’s reference kick lately.

Filed under: Administrative | Tagged: , , , , | 14 Comments »

Anti-SLAPP suit against Andrew Wakefield

Posted on March 11, 2012 by Michael

Andrew Wakefield is a disgraced doctor who made up data that questioned the safety of vaccines. As a result, many parents refused to vaccinate their kids, especially in the U.K. Arguably, children died as a result. Andrew Wakefield is clearly a dangerous man and I’m glad that the scientific community has firmly rejected his nonsense. In fact, certain scientific journals and people even outside the scientific community have been quite critical. These include the British Medical Journal and journalistic Brian Deer. In response, Wakefield sued them for defamation. Now they are countering with an anti-SLAPP motion:

The anti-SLAPP statute protects journalists and publishers from baseless libel claims like Dr. Wakefield’s by providing for a special “motion to dismiss” to be filed at the outset of the case. To avoid dismissal, the plaintiff must submit “clear and specific evidence” to support each essential element of his claims. Where, as here, the plaintiff cannot satisfy that burden, the Court must dismiss the case and award the defendants their reasonable fees and costs, along with any additional sanctions appropriate to deter the plaintiff from filing similar actions.

This is what would have happened to Christopher Maloney had he been foolish enough to continue. Now the onus is on Wakefield to prove that he has actually been defamed. And, of course, he is unlikely to succeed. I hope this costs him a lot of money – and, more so, supporters.

via Popehat.

Filed under: News | Tagged: , , , , , , | 4 Comments »

Needed: Maryland practitioner for SLAPP suit

Posted on December 23, 2011 by Michael

I don’t suspect that too many lawyers read my blog, but empathetic decency compels me to repeat a post from Ken at Popehat:

The issue is whether a plaintiff in a SLAPP suit against another party in Montgomery County, Maryland can convince a court to force Google to reveal the blogger’s identity. The blogger will write the papers; he’s just looking for someone to review them, advise on compliance with Maryland civil procedure and strategy, and make an appearance at the hearing (if there is one) in Montgomery County to argue the motion. The blogger can cover costs, but can’t afford fees.

The cause, in my opinion, is just; the issue presented is blogger anonymity, and the underlying suit against the third party is a contemptible SLAPP. Moreover, the plaintiff has a rather remarkable history of evil.

If you can help — or know someone who can — please let me know. Time is rather of the essence.

Thank you.

And, no, I do not have any inside info on any of this.

Filed under: Misc | Tagged: , , | 2 Comments »

Christopher Maloney and the lawsuit that almost was

Posted on December 19, 2011 by Michael

Christopher Maloney, Q.E. - Quack Extraordinaire. via http://www.maloneymedical.com

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.

Filed under: Pure bullshit | Tagged: , , , , , , , , , , , , , | 22 Comments »

Law blog awards

Posted on December 8, 2011 by Michael

The ABA Journal gives out law blog – or as the hip kids are saying, “blawg” – awards each year. One of the categories features Popehat.com, a site I have had in the blogroll for some months now. It’s a damn fine site and I’m happy to see it up for nomination in the Opinion category; it deserves some recognition. So your task, my dear readers, is to go and recognize it. Go on. Do it.

(I realize there is an annoying sign-up process before voting, but it’s a matter of filling in a few boxes. It doesn’t even make you confirm your account via email. So go vote.)

Filed under: Misc | Tagged: , , | 1 Comment »

Don’t trust the police

Posted on June 26, 2011 by Michael

I tell people time and time again, don’t talk to the cops. If an officer has pulled you over, or has terry stopped you, or otherwise has you detained, you two are not friends. That cop is not there to help you. Giving him more information than what is legally required of you – usually just your name and address – will only help his record look a little better when his annual review comes around.

But people don’t want to believe me. When online I can just point them to my post advising them not to talk to the cops, but I don’t have that luxury in person. It’s frustrating. Everyone believes they can talk their way out of any situation. “B-but if I just get a chance to tell my side of the story, I’ll be fine!” No, you won’t. Remember when ex-politician and current beautiful hair model Rod Blagojevich had close to two dozen charges against him? He was showboating and proclaiming about his day in court. Boy was he going to show the government what was what! And then the government put on a terrible case, failing to prove Blagojevich guilty of almost everything. Needless to say, the man didn’t take the stand – it doesn’t pay to say more than what must be said. But he was found guilty of one count: lying to the FBI. He had made the mistake of talking to agents before his lawyers could get him to shut the hell up.

Which brings me to an excellent article from the law blog Popehat:

Is there ever a situation where, by being friendly and cooperative and answering questions, you can deflect government suspicion or satisfy their concerns without charges? Yes. Very rarely, there is. And when the government comes knocking, they count on you grasping at the hope that this is one of those times. Don’t be a fool. If there’s a chance that cooperation will satisfy the authorities today, there will still be a chance in a day or a week or a month after you’ve consulted a lawyer who understands the situation. When you answer law enforcements’ questions — especially when you do it in a stressful situation like a search — you take grave risks of substantially worsening your situation.

Read the entire post and it’s obvious the given scenario is one most of us will never experience. But that isn’t the point. The most law-abiding among us is plenty likely to encounter a cop that wants to ask us questions. And most of us would probably answer everything plenty blindly. But don’t. That cop is not your friend, he doesn’t want to help you, and it will not benefit you to talk to him.

But maybe you’re worried about looking guilty. If you don’t talk, that will only raise suspicions, right? Maybe. But how many prosecutors have given the closing statement, “And so the defendant was silent when questioned. I think you know what that means. I rest my case.”?

Keep your mouth shut.

Filed under: Politics and Social | Tagged: , , , | 61 Comments »