Texas court throws out Prestigious Pets’ ‘nondisparagement’ lawsuit

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From Paul Alan Levy (Public Citizen), who represented the customer and her husband; here’s an excerpt (some paragraph breaks added):

A state District Court in Dallas (Judge Jim Jordan of the 160th District) has struck down a lawsuit over a non-disparagement clause in a form consumer agreement, holding that it could not be enforced against a consumer who expressed dissatisfaction about the service provided by a local business. Although we have won default judgments in Utah against Kleargear and in New York against Accessory Outlet, this case represents the first time a company defended its non-disparagement clause with a brief, and thus the first time we have had a judge’s ruling refusing to enforce such a clause….

The order arose because Michelle Duchouquette, a consumer in Plano, Texas, expressed her dissatisfaction on Yelp about some of the policies of Prestigious Pets. While she and her husband were away on vacation, she noticed from security cameras in their home that the bowl containing their pet fish had become cloudy, a sign of overfeeding. She felt that, had Prestigious Pets provided a way for her to get directly in touch with the assigned pet sitter, such problems might be avoided.

Prestigious Pets then brought suit in a small claims court, seeking a few thousand dollars in damages as well as an injunction. The company claimed both defamation and breach of the non-disparagement clause which, unbeknownst to Michelle Duchouquette and her husband Robert, had been inserted into the fine print of the pet-sitting contract. The Duchouquettes retained counsel and filed a motion to dismiss under the Texas anti-SLAPP statute.

After Cristin Severance, the consumer reporter for the Dallas CBS affiliate, ran a story on the case, the story went viral, because the fact that a pet-sitting company would not only have a non-disparagement clause but would go so far as to sue its customers for mild criticism touched a nerve. Criticism rained down on the company for its lawsuit, and, according to the company’s affidavits, its new business fell off sharply.

But rather than simply defending its right to enforce a non-disparagement clause, or cutting its losses and accepting the judgment of the market that suing a customer is not a good way to get new business, Prestigious Pets doubled down and hired Dallas lawyer Bill Richmond who, in turn, filed a lawsuit seeking up to a million dollars in damages on the ground that the loss of business occasioned by the news reports about its lawsuit was the Duchouquettes’ fault.

The new lawsuit only made matters worse. The huge price tag, no doubt intended to intimidate the Duchouquettes, brought even more negative coverage, more lost business, and, now, exposure to a six-figure claim for a attorney fees as well as sanctions which Texas’s anti-SLAPP statute requires to deter similar litigation. I expect that we will argue that the level of damages that Prestigious Pets sought to achieve a chilling effect against the Duchouquettes provides a fair measure of the sanctions that are needed to deter further such lawsuits by the company….

Because the court did not issue an opinion detailing its reasoning, we cannot be sure whether the court found that Robert Duchouquette did not waive his First Amendment rights because Prestigious Pets had not provided enough information about the clause, or specified in the clause itself the rights being surrendered (as Texas law requires before procedural rights under the Uniform Commercial Code are deemed waived), or because this clause was so extremely one-sided as to be invalid under Texas’ common law principles of unconscionability.

What the decision does make clear is that non-disparagement clauses in form consumer contracts are susceptible to attack in court and that businesses in states with anti-SLAPP statutes should act with care before suing to enforce them. Companies should also consider the Streisand effect on their own business prospects. At the same time, the case stands as a reminder to consumers to read the whole contract before signing it.

At the same time, the ruling does not establish that non-disparagement clauses in form consumer contracts can never be valid….

Check out Levy’s post for more, including on Prestigious Pets’ libel claim, which was also rejected.

Originally Found On: http://www.washingtonpost.com/news/volokh-conspiracy/wp/2016/08/31/texas-court-throws-out-prestigious-pets-nondisparagement-lawsuit-against-customer/

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No problem in judge’s questioning of witness about sharia law (at least when witness had brought up the subject)

Defendant was convicted of assault with intent to do great bodily harm, based on his attack on his landlord following an argument; the court affirmed the conviction, and in the process dealt with this issue (some paragraph breaks added):

[Defendant] argues that the trial court pierced the veil of judicial impartiality by questioning defendant’s father, a defense witness, in a manner suggesting that it was partial to the prosecution…. Defendant did not object to the trial court’s questioning of defendant’s father. Accordingly, this issue is unpreserved and our review is for plain error affecting defendant’s substantial rights.

During questioning by defense counsel, defendant’s father testified that defendant was raised according to Sharia law. Defendant’s father explained that defendant married his current wife before defendant’s son was born because, under Sharia law, defendant was not allowed to have a child without being married.

The trial court thereafter asked additional questions about Sharia law. The court asked whether Sharia law permits a person to have tattoos, to carry a gun, or to use drugs or alcohol. Defendant’s father testified (1) that tattoos are disliked, but not forbidden; (2) that guns are not normally permitted, but are allowed if there is danger; and (3) that drugs or alcohol are never allowed. Defendant argues that the court’s questioning went beyond merely attempting to clarify testimony and instead pierced the veil of judicial impartiality.

MRE 614(b) expressly permits a court to “interrogate witnesses, whether called by itself or a party.” But a court must be careful not to pierce the veil of judicial impartiality. “A judge’s conduct pierces [the veil of judicial impartiality] and violates the constitutional guarantee of a fair trial when, considering the totality of the circumstances, it is reasonably likely that the judge’s conduct improperly influenced the jury by creating the appearance of advocacy or partiality against a party.” This is a “fact-specific analysis[,]” and the pivotal inquiry is whether “the judge’s conduct was sufficiently severe and clear so as to create the appearance of bias against the aggrieved party.”

In evaluating the totality of the circumstances, the reviewing court should inquire into a variety of factors, including the nature of the judicial conduct, the tone and demeanor of the trial judge, the scope of the judicial conduct in the context of the length and complexity of the trial and issues therein, the extent to which the judge’s conduct was directed at one side more than the other, and the presence of any curative instructions.

We conclude that the trial court’s questioning of defendant’s father did not arise to a level of plain error affecting defendant’s substantial rights….

[T]he central object of judicial questioning should be to clarify. Therefore, it is appropriate for a judge to question witnesses to produce fuller and more exact testimony or elicit additional relevant information. Judicial questioning, nevertheless, has boundaries. The Michigan Code of Judicial Conduct states:

A judge may properly intervene in a trial of a case to promote expedition, and prevent unnecessary waste of time, or to clear up some obscurity, but the judge should bear in mind that undue interference, impatience, or participation in the examination of witnesses, or a severe attitude on the judge’s part toward witnesses … may tend to prevent the proper presentation of the cause, or the ascertainment of truth in respect thereto … In addressing counsel, litigants, or witnesses, the judge should avoid a controversial manner or tone. A judge should avoid interruptions of counsel in their arguments except to clarify their positions, and should not be tempted to the unnecessary display of learning or a premature judgment.

It is inappropriate for a judge to exhibit disbelief of a witness, intentionally or unintentionally. It is essential that the judge “not permit his own views on disputed issues of fact to become apparent to the jury.”

The questions in this case appear to have been intended to clarify the testimony of defendant’s father regarding how religion may have impacted defendant’s upbringing and practices. By bringing up Sharia law, the defense left the jury with the impression that defendant endeavored to conduct himself in accordance with the tenants of Sharia law. It was not inappropriate for the trial court to seek clarification regarding how other conduct in which defendant was known to have engaged was viewed under Sharia law.

To the extent that the court’s questioning and tone could be viewed as inappropriately argumentative or hostile, the totality of the circumstances do not reveal that the court improperly pierced the veil of judicial impartiality.

First, the objectionable questioning was brief and isolated. It involved three questions to a single witness over the course of a three-day trial. There was no pattern of conduct in which the court signaled any partiality in favor of the prosecution or against defendant.

Second, the subject of Sharia Law simply was not a significant factor in the case. To the extent that the questions could be viewed as attacking the credibility of defendant’s father, he really had little to offer in the way of a defense. The court’s questions did not impact any information critical to the issues before the jury.

Third, in its final instructions, the trial court explained to the jury that when it made a comment during trial, it was “not trying to influence your vote or express a personal opinion about the case,” and that “[i]f you believe that I have an opinion about how you should decide this case, you must pay no attention to that opinion.” These instructions reinforced to the jury that any perceived partiality reflected in the court’s questioning of defendant’s father was not intentional and should be disregarded. Considering the totality of the circumstances, it is not reasonably likely that the court’s brief questioning of defendant’s father improperly influenced the jury by creating the appearance of advocacy or partiality against defendant.

Originally Found On: http://www.washingtonpost.com/news/volokh-conspiracy/wp/2016/08/31/no-problem-in-judges-questioning-of-witness-about-sharia-law-at-least-when-witness-had-brought-up-the-subject/

Alabama ACLU sues government, claiming pro-Muslim discrimination

From the complaint in Allen v. English:

Plaintiff Yvonne Allen is a devout Christian woman who covers her hair with a headscarf as part of her religious practice. In December 2015, Ms. Allen sought to renew her driver license at the Lee County driver license office, where officials demanded that she remove her head covering to be photographed. When Ms. Allen explained her religious beliefs, the County officials responded with a remarkable claim: They admitted that there was a religious accommodation available for head coverings, but contended that it applied only to Muslims.

The ACLU press release adds:

Lee County’s refusal to grant Allen a religious accommodation contradicts state rules and violates her rights under the First Amendment to the U.S. Constitution and the Alabama Constitution, according to the lawsuit.

“The county’s interpretation of state rules blatantly violates the First Amendment,” said Susan Watson, executive director of the ACLU of Alabama. “The government cannot discriminate between faiths in granting religious accommodations.”

Heather L. Weaver, senior staff attorney for the ACLU’s Program on Freedom of Religion and Belief, agreed. “The county’s policy is puzzling. There is absolutely no reason to restrict accommodations for religious headgear to certain religions. The Constitution protects both Christians and Muslims and, indeed, people of all faiths.”

Sounds right to me. The First Amendment doesn’t generally require government to give religious exemptions from generally applicable laws (such as requirements that people have driver’s licenses that show them bareheaded) — but when the government does grant religious exemptions, it generally can’t grant the exemption to members of one religion and then deny the same exemption to members of other religions. The Alabama Constitution also presumptively requires religious exemptions (Alabama has a state constitutional amendment that tracks the language of many Religious Freedom Restoration Acts), and while exemptions can be denied when necessary to serve a compelling government interest, it’s hard for the state to credibly make the argument that Christians must be denied this exemption when the state thinks that granting the exemption to Muslims poses no problem.

For more on some Christians’ beliefs about head covering for women, see here and here.

Thanks to Prof. Howard Friedman (Religion Clause) for the pointer; see also this Post article by Julie Zauzmer from earlier this morning.

Originally Found On: http://www.washingtonpost.com/news/volokh-conspiracy/wp/2016/08/31/alabama-aclu-sues-government-claiming-pro-muslim-discrimination/

Muslim convert to Christianity may file civil suit with a pseudonym, for fear of himself or his Saudi family being persecuted for his apostasy

From Monday’s decision in Doe v. Dordoni, 2016 WL 4522672 (W.D. Ky.), the factual allegations (some paragraph breaks added):

[John] Doe (a pseudonym) was born in Saudi Arabia and is a citizen of Pakistan. He attended Western Kentucky University (“W.K.U.”) under an F-1 student visa through the end of the fall 2014 semester.

Although raised in the religion of Islam, Doe initially became interested in Christianity prior to coming to the United States. Later, while attending W.K.U., he began attending Christian church services and contemplated converting from Islam to Christianity. He confided this to some of his Muslim friends, who warned him of possible repercussions under Islamic law. He also confided this to his uncle, which apparently led to Doe’s father withdrawing his financial support, leaving Doe unable to enroll in classes for the spring 2015 semester.

In January, 2015 Doe contacted Defendant, George Dordoni …, an International Student & Scholar Advisor in W.K.U.’s International Student Office, seeking advice about maintaining his student visa status until he was able to re-enroll in classes. Doe alleges that Dordoni counseled him on the process for submitting his Form I-20 in order to obtain a Certificate of Eligibility for Non-Immigration (F-1) Student status. Doe also alleges that Dordoni assured him he could depart the United States to visit family abroad and the he would be granted re-entry to complete his studies at W.K.U.

Doe contends that, in reliance upon Dordoni’s advice, he departed the United States on February 14, 2015, for a one-month visit with his family. He traveled to Saudi Arabia, and Doe recounts that he was forcibly detained by his family for the purpose of re-indoctrinating him into the teachings of Islam, including physical punishment if he failed to follow religious doctrine. This continued for four months, until he feigned resignation of his interest in Christianity and his father consented to his return to the United States. Thereafter, he contends he again contacted Dordoni to confirm his immigration status and was assured that his F-1 Visa would not expire until 2017.

Upon his arrival in the United States, however, he was detained by immigration officials and advised that records in the Student Exchange and Visitor Information System (“SEVIS”) indicated he no longer had a valid student visa as a result of failing to enroll as a full time student during the spring 2015 semester and that he had failed a psychological evaluation. He contends he was held in detention from May 17, 2015 to June 17, 2015, when he was paroled on application for asylum status. Doe contends that Dordoni was negligent in providing him with immigration advice and in submitting inaccurate information to SEVIS, which resulted in his detention.

Doe wants to litigate this negligence lawsuit using a pseudonym — something that is generally frowned on in American law but is allowed in some situations, including when the litigant reasonably fears violence. And in this case, the magistrate judge concluded, a pseudonym should be allowed:

Doe’s motion requests leave to continue his prosecution of the case anonymously under the pseudonym, as he fears disclosure of his name could subject him or his family to religious persecution due to the public revelation of his conversion from Islam to Christianity. During the hearing he testified that he is considered an apostate of Islam and has been shunned by his Muslim former friend who warned him that he could be subject to a fatwa. A fatwa is an Islamic religious edict or proclamation…. “A fatwa issued by a cleric ‘is the equivalent of a ruling on a particular issue regarding Islam or Muslims, and it is incumbent upon anyone who follows the person issuing the fatwa to follow the advice given.’” …

Doe testified that conversion to Christianity is considered an offense for which he could be denounced as wajib-ul-qatal, or deserving of death, and a fatwa calling for his death could issue. He notes that he has recently been granted asylum status based on religious persecution. Doe admitted, however, that he has only been told that a fatwa could be issued, and no one has told him that one has actually been issued, nor has he been directly threatened at this point….

Rule 10(a) of the Federal Rules of Civil Procedure requires that a complaint state the names of all parties. A plaintiff may be granted exemption from this requirement under certain circumstances in which the Court determines a plaintiff’s privacy interest substantially outweighs the presumption of open judicial proceedings. A plaintiff may be entitled to anonymity where (1) plaintiff sues to challenge governmental activity; (2) prosecution of the suit will require the plaintiff to disclose information “of the utmost intimacy”; (3) the litigation compels the plaintiff to disclose an intention to violate the law, thereby risking criminal prosecution; or (4) the plaintiff is a child. With regard the second category, the Sixth Circuit has observed that:

Religion is perhaps the quintessentially private matter. Although they do not confess either illegal acts or purposes, the [plaintiffs] have, by filing suit, made revelations about their personal beliefs and practices that are shown to have invited an opprobrium analogous to the infamy associated with criminal behavior.

Here, the issue of Doe’s religious conversion qualifies under the “utmost intimacy” category as a basis upon which anonymity may be appropriate. However, the analysis does not end here.

The burden is on the Plaintiff to demonstrate that the need for anonymity substantially outweighs both the presumption that a party’s identity is public information and the risk of unfairness to the opposing party. In order to satisfy this burden in the context of fear of retaliation, the risk must not merely be hypothetical but based on real evidence. “A plaintiff can support his fear by demonstrating the need for anonymity to prevent retaliation, the reasonableness of the plaintiff’s fear, the severity of the threatened harm, and the plaintiff’s vulnerability.” Balanced against this is whether the defendant is forced to proceed with insufficient information to present their arguments against the plaintiff’s case.

Here, Dordoni has not contested Doe’s contention that his conversion from Islam to Christianity could place him at risk for possible retaliation, or that his family might also be at risk as a consequence. Dordoni has questioned the extent to which this is more than a remote possibility, as Doe cannot point to specific evidence that a fatwa has been issued which calls for him to be harmed and no one has thus far directly threatened him. However, as the District Court for the District of Columbia observed, “Fatwas are not publicly distributed; hence, the fact that one has been issued against a specific person must be gleaned indirectly.” As Doe testified during the hearing, it is unlikely that someone intending to do him harm would advise him of their intention in advance.

This is not an instance in which a party fears embarrassment, ostracism or ridicule resulting from disclosure of personal information in the course of a lawsuit. This is an instance in which the plaintiff has articulated a rational fear of serious personal injury or death based upon religious doctrine.

Moreover, Doe’s true identity is known to Dordoni and he faces no prejudice in his ability to gather evidence and defend against the case. As to Dordoni’s contention that Doe created his own dilemma by including information in the complaint about religion, the undersigned does see a rational basis for including this information as part of the facts necessary to understand why Doe was unable to return to the United States as promptly as he had initially planned and arguably had to rely on Dordoni’s expert advice. On the whole, prudence dictates erring on the side of caution and granting Doe’s request to pursue the case under the pseudonym.

Originally Found On: http://www.washingtonpost.com/news/volokh-conspiracy/wp/2016/08/31/muslim-convert-to-christianity-may-file-civil-suit-with-a-pseudonym-for-fear-of-himself-or-his-saudi-family-being-persecuted-for-his-apostasy/

Libertarianism and political ignorance

Ballot Box With Hand Voting

Most libertarians tend to believe that individuals make good decisions, if able to make free choices unimpeded by government coercion. But they also believe that voters routinely make systematically terrible decisions at the ballot box. If voters generally make good decisions, the libertarian critique of big government would be significantly weakened, and the relative unpopularity of libertarian ideology would be an important strike against it. But how can libertarians believe that the same people have good judgment in the market, yet terrible judgment at the ballot box? Many critics of libertarianism see this as a serious contradiction.

Political philosopher Jason Brennan, a leading academic expert on political ignorance and democratic theory, has a thoughtful recent post summarizing this argument against libertarianism, and offering a good response. Here is the critique:

Roughly 35% of my published work responds to problems of voter ignorance and irrationality. I sometimes get pushback from both libertarians and non-libertarians that goes roughly as follows: “Wait, so you think average people aren’t competent to rule? How can you, a self-described bleeding heart libertarian, say that? Aren’t you libertarians committed to the view that people are smart and can run their own lives? That they don’t need government to run their lives for them? How can you say that they’re smart in the market but dumb at politics? Isn’t that a contradictory view of human nature?”

Frankly, these are softball questions….

[A]s to the question of voters in democracy vs actors in the market: The incentives are radically different.

When I make a market decision, I decide unilaterally. If I order a candy bar, I get a candy bar. If I order an apple, I get an apple. Further, in general, I bear the consequences of my decisions. If I make a bad choice for me, I get punished. If I make a good choice, I get rewarded.

Of course, sometimes the consequences take a long time or are hard to trace…. Still, there’s a feedback mechanism. However dumb people might be naturally, markets incentivize them to be smarter.

In politics, my decision counts for basically nothing. If I stay home, vote for X, or vote for not-X, the same thing ends up happening. We all bear the consequences of the majority’s decision, but no one bears the consequences of her individual decision. If I make a bad choice at the polls, I don’t get punished. If I make a good choice, I don’t get rewarded.

The feedback mechanism sucks. However dumb people might naturally be, politics incentivizes them to stay that way, or get dumber.

The key difference between market decisions and voting decisions is not that people are “smart” in one situation, but “dumb” in another, but that people have much stronger incentives to seek out information when the decision they are making is likely to make a real difference. In an election, the chance that your vote will make a difference to the outcome is almost always infinitesmally small. As a result, most voters are “rationally ignorant”. Large numbers of voters are routinely unaware of even very basic facts about political issues, candidates, and the structure of government. In addition to having very little incentive to seek out relevant knowledge, voters also have poor incentives to do a good job of analyzing the information they do learn. Instead of acting as truth-seekers on political issues, they often act as biased “political fans” cheering on Team Red or Team Blue, and dismissing or distorting opposing evidence. Politicians and parties are well aware of widespread voter ignorance, and have a variety of strategies for exploiting it, many of which have been particularly evident in this year’s election.

Consumers in markets are far from perfectly rational and informed. But they do usually do a better job than voters. If you are like most people, you probably spent more time and effort seeking out relevant information the last time you decided which car or TV set to buy than when you decide who to vote for in a presidential election or any other political race.

Because libertarians are highly critical of the modern state and diverge from mainstream public opinion on many issues, it is no surprise that libertarian scholars like Brennan and Bryan Caplan have written some of the most important recent works highlighting the dangers of political ignorance. However, as Brennan stresses, you don’t have to be a libertarian to recognize that widespread voter ignorance is a serious problem. One of the more compelling recent books on the subject is Democracy for Realists, written by left of center political scientists Christopher Achen and Larry Bartels. In my review of the book, I note that the authors are, in some ways, even more pessimistic about voters’ abilities than I am. Liberals, conservatives, and libertarians all have good reason to be concerned about political ignorance, even though we are likely to disagree about potential solutions.

I discuss a variety of strategies for reducing the risks of political ignorance in the just-published second edition of my book Democracy and Political Ignorance. I argue that the most promising approach is limiting and decentralizing government, thereby empowering people to make more decisions in settings where they have stronger incentives to be well-informed. But I readily admit that there a number of other strategies that deserve serious consideration as well. Te including nontraditional ideas, such as the use of “sortition” methods, and directly incentivizing voters to increase their knowledge.

Readers interested in this subject should also check out Jason Brennan’s own important new book, Against Democracy, which I plan to review soon. He recently summarized some of its key themes in this LA Times article.

Originally Found On: http://www.washingtonpost.com/news/volokh-conspiracy/wp/2016/08/30/libertarianism-and-political-ignorance/

Third Circuit to hear argument in Fifth Amendment forced decryption case

Back in June, I blogged at length about a pending Third Circuit case that considers the Fifth Amendment limits on ordering a suspect to decrypt his hard drives. The court recently announced that it will hear oral argument in the case on Sept. 7 before Judges Jordan, Vanaskie and Nygaard.

I’ll listen to the oral argument audio when it’s available on the Third Circuit’s website, and I plan to post some thoughts on the argument after I do.

Originally Found On: http://www.washingtonpost.com/news/volokh-conspiracy/wp/2016/08/30/third-circuit-to-hear-argument-in-fifth-amendment-forced-decryption-case/

Louisiana sheriff (Jerry Larpenter) illegally uses criminal libel law to unmask a critic

The Intercept (Naomi LaChance) has been reporting about Louisiana sheriff Jerry Larpenter’s trying to identify a blogger who was criticizing the sheriff and others. Sheriff Larpenter got a name — Wayne Anderson — from AT&T, and then got a search warrant for Anderson’s house. To do that, the sheriff had to allege that there was a crime committed: That crime, he said, was criminal libel of Anthony Alford, one of the people being criticized on the blog.

But Louisiana Supreme Court decisions make clear that the Louisiana criminal libel law can’t be applied to speech (even false speech) about public officials, or for that matter about private figures involved in public matters. And Alford was the president of a local board, so Friday the Louisiana Court of Appeal ruled (Terrebonne Parish Sheriff’s Office v. Anderson) that the search warrant was invalid:

The probable cause affidavit submitted in support of the application for the search warrant is premised upon a violation of Louisiana Revised Statute 14: 47. That statute has been declared unconstitutional by both the United States Supreme Court and the Louisiana Supreme Court as it applies to public expression and publication concerning public officials, public figures and private individuals engaged in public affairs. See New York Times v. Sullivan, 376 U.S. 254 (1964); Garrison v. State of Louisiana, 379 U.S.64 (1964); State v. Snyder, 277 So. 2d 660, 668 (La. 1973) (on rehearing), rev’d on other grounds, 305 So. 2d 334 (La. 1974); State v. Defley, 395 So. 2d 759, 761-62 (La. 1981). Anthony Alford, the supposed victim, is President of the Terrebonne Parish Levee and Conservation Boardof Louisiana, and a public official. Consequently, the search warrant lacks probable cause because the conduct complained of is not a criminally actionable offense. The ruling of the district court denying the motion to quash the search warrant is reversed, the motion is granted, and the search warrant is
quashed.

Of course, this is at least partly too late for Anderson, whose identity Sheriff Larpenter learned by relying on an unconstitutional application of criminal libel law. But it’s good that at least the Court of Appeal recognized the invalidity of the warrant (and thus the unconstitutionality of the search).

Originally Found On: http://www.washingtonpost.com/news/volokh-conspiracy/wp/2016/08/30/louisiana-sheriff-jerry-larpenter-illegally-uses-criminal-libel-law-to-unmask-a-critic/