Lawsuit against lawyers who allegedly filed improper lawsuits aimed at getting Internet criticism deindexed by Google

Several days ago, noted Internet lawyer Marc Randazza and his colleagues filed a lawsuit alleging that various defendants were misusing the court system to try to get online criticism deindexed by Google and other search engines. This isn’t the scheme that Paul Alan Levy and I wrote about, though it allegedly has a similar aim: It involves lawsuits filed by real lawyers against real defendants, but the question is whether the defendants are at all related to the posts that they allegedly wrote and that the plaintiffs (or the people behind the plaintiffs) want to see hidden online. (The people at Pissed Consumer first alleged it earlier this year.)

Here are some excerpts from the complaint (or see the full complaint with the appendices, though it’s over 10 megabytes):

INTRODUCTION

1. This case involves a creative solution to a common frustration for many businesses, who do not like negative reviews that are published about them on the Internet. However, removing consumer reviews from the Internet is a difficult process given that they are protected by the First Amendment.

2. Nevada Corporate Headquarters, has gone to great lengths to attempt to suppress consumer reviews in the past. It has filed at least one SLAPP suit in Nevada seeking injunctive relief to censor those negative reviews. In that case, Nevada Corporate Headquarters suffered a resounding loss when they were hit with an anti-SLAPP order… . They also lost at summary judgment in a SLAPP-back suit. That action resulted in a significant judgment for attorney fees and costs… .

3. Undaunted by these set-backs, Nevada Corporate Headquarters has now conspired with other companies and individuals to create a scam whereby they suppress negative reviews from the Internet, while evading any First Amendment or due process considerations. This scam also allows them to avoid the risk of another anti-SLAPP attorney fee award.

4. Several other businesses and professionals who have been the subject of negative reviews online have also employed the same fraudulent machinery as Nevada Corporate Headquarters, as a means of removing this content while evading detection and liability.

5. The scam is not all that complicated. Google will remove search engine results from its well-known search engine if it is provided with a court order determining that the information is indeed defamatory.

6. However, when Nevada Corporate Headquarters sued consumer review websites in the past, it was severely disappointed. (See Exhibits 1 & 2.) Therefore, they needed to concoct a new censorship scam. So they used a stooge plaintiff, ZCS Inc. (“ZCS”), to sue a stooge defendant, Collins Mattos (“Mattos”).

7. Defendant Doe Corporations, so called “reputation management companies,” conceived and organized the scam as an alternative way to remove negative posts in lieu of undergoing an adversarial proceeding. Several other businesses and professionals have contacted these “reputation management companies,” which have used similar schemes to remove negative consumer reviews about them.

8. The other conspirators engaged attorneys Mark W. Lapham (“Lapham”) and Owen T. Mascott (“Mascott”) to file sham lawsuits either by the subjects of the negative reviews or by corporations that had no interest in the allegedly defamatory statements, against a defendant who most certainly was not the party that published the allegedly defamatory statements, and the parties immediately stipulated to a judgment of injunctive relief, so the conspirators could provide the order to Google and other search engines, thus achieving the goal of deindexing all pages containing negative reviews.

9. At first blush, Defendants’ scam appears rather brilliant but incredibly unethical. Now that Plaintiff has uncovered and exposed Defendants’ unlawful deeds, Consumer Opinion LLC respectfully requests that this Court discipline them for those misdeeds… .

11. There are four categories of Defendants in this scheme:

(1) the entities that file and/or benefit from the suit (the “Filing Defendants”); (2) the attorneys who knowingly and unethically file and prosecute these fraudulent lawsuits (the “Attorney Defendants”); (3) the “defendants” in these fake lawsuits who falsely claim to be the authors of allegedly defamatory statements (the “Stooge Defendants”); and (4) the “reputation management companies” that devised and carried out these schemes (the “RMC Defendants”)… .

FACTS SUPPORTING CLAIMS

35. Consumer Opinion LLC operates a website residing at the uniform resource locator (“URL”) <pissedconsumer.com> .

36. <pissedconsumer.com> is a consumer review website where individuals can share information about their experiences with businesses providing goods and services, thereby allowing consumers to make better choices between competing products and giving consumers an empowering and unbiased view of companies and products.

37. The First Amendment and various state anti-SLAPP statutes protect the right to publish opinions and true statements of fact. Therefore, aside from improving their business standards, there is little a company can do to prevent individuals from publishing negative opinions or true facts about them.

38. Moreover, under 47 U.S.C. § 230, providers of interactive computer services like <pissedconsumer.com> cannot be held liable for defamatory statements individuals post by and through their interactive services.

39. Understanding the difficulties of removing reviews consisting of negative opinions or statements of true fact, Defendants conspired to misuse California’s legal system to hide the unflattering statements from the consuming public by having popular search engines such as Google to deindex the webpages containing the comments.

40. RMC Defendants are “reputation management companies” that offer services to help individuals rehabilitate their on-line image. The Filing Defendants engaged RMC Defendants to achieve their goal of minimizing the impact of negative reviews on pissedconsumer.com.

41. RMC Defendants first identified individuals or entities willing to stand in the place of the professionals or businesses that were the actual subject of negative reviews on <pissedconsumer.com>. At this time Plaintiffs do not know if the nominal plaintiffs in the fake lawsuits had pre-existing relationships with the benefited parties of these lawsuits, or if they were simply engaged for the limited purpose of serving as the sham plaintiffs in the fake lawsuits. The conspirators likely understood that if the benefited parties brought the action in their own name, the scam was more likely to be discovered.

42. Next, RMC Defendants and Filing Defendants sought out someone willing to take responsibility for posting one or more of the allegedly defamatory comments. They found these individuals in the Stooge Defendants.

43. It is unclear whether Stooge Defendants were actually responsible for posting any of the allegedly defamatory statements at issue in any given fake lawsuit. However, it is clear that they were not responsible for posting all of the reviews on <pissedconsumer.com> and comments posted in response to the reviews. Nonetheless, in each case the conspirators successfully used the scheme to obtain an injunction ordering all of those reviews deindexed, which was precisely their goal.

44. It is also not clear what RMC Defendants and Filing Defendants offered the Stooge Defendants to secure their cooperation in their scheme to remove First Amendment protected reviews from pissedconsumer.com.

45. Of course, the conspirators required a cooperating attorney willing to file a bogus lawsuit on their behalf. Accordingly, they invited attorneys Mark W. Lapham, Esq. and Owen T. Mascott, Esq. to join the conspiracy. They accepted.

46. Like most review websites, the profitability of pissedconsumer.com is directly tied to the amount of traffic the website receives. Also, like most websites, individuals usually locate the website through the use of search engines such as Google, Yahoo!, and Bing.

47. Many consumers considering the purchase of goods or services will search for information about a company prior to purchasing good or services by entering the name of the provider into a search engine. By causing the pages to be deindex, Defendants deprived consumers of information posted about the businesses and professionals benefited by these fake lawsuits, and thereby undermined the value of the <pissedconsumer.com> website to the consuming public.

48. Defendants’ actions caused further long term damage to pissedconsumer.com by limiting the usefulness of the website to obtain information about individuals and companies providing goods and services to the consuming public.

The Mattos Case

49. ZCS, Inc. filed a bogus complaint against Collins Mattos in California Superior Court for Contra Costa County, claiming that Mattos had posted defamatory statements about ZCS, Inc./Nevada Corporate Headquarters on a consumer gripe website operated by Plaintiff Consumer Opinion LLC. (See Complaint in ZCS, Inc. v. Mattos, Case No. C16-00425 (hereinafter referred to as the “Mattos Case”), attached hereto as Exhibit 3.)

50. In reality, the statements at issue concerned only Nevada Corporate Headquarters.

51. Based on Nevada Corporate Headquarters’ unsuccessful attempts to remove reviews from Plaintiff’s website in the past, Defendants understood that Plaintiff would resist requests to have the statements removed, especially statements that had not been adjudicated to be defamatory. Therefore, instead of seeking removal of the statements, Nevada Corporate Headquarters conspired with ZCS and Collins Mattos to file a sham lawsuit for the sole purpose of entering a stipulated judgment and permanent injunction. According to the scheme, the conspirators then delivered a copy of the stipulated judgment to Google and other search engines demanding that they deindex all negative reviews about Nevada Corporate Headquarters.

52. Plaintiff is informed and believes and based thereon alleges that Defendant Doe Corporation, operating as a reputation management company, conceived of the plan and organized the cooperation of ZCS, Collins Mattos, and Mark W. Lapham to bring the plan to fruition.

53. Defendant ZCS, Inc. is an inactive California Corporation. Plaintiffs are aware of no business operations of the company, other than standing in the place of Nevada Corporate Headquarters in the underlying litigation. Nevada Corporate Headquarters provides consulting services to businesses, including providing information and offering assistance with incorporating businesses.

54. Since September 2010, four individuals have posted complaints about Nevada Corporate Headquarters on pissedconsumer.com. Additionally, twenty-nine comments have been posted in response to those four complaints. The vast majority of the comments have been negative.

55. Plaintiff is informed and believes and based thereon alleges that at the bequest of Defendant Doe Corporation and with the full cooperation of Defendant Mattos, Mr. Lapham filed a complaint on behalf of ZCS, Inc. against Collins Mattos for defamation. (See Exhibit 3.)

56. In the underlying action the conspirators sought only injunctive relief. Specifically, the complaint requested an injunction that Collins be “prohibited from creating statements about Plaintiff or its officers, managers, employees, business partners, agents, servants, attorneys, representatives, products, goods or services, which defame, disparage, or contain libelous statements about Plaintiff,” and that Mr. Collins be “ordered to take all action, including but not limited to, requesting removal from the internet search engines including Google, Yahoo!, and Bing, of all defamatory, disparaging, libelous, and false statements about Plaintiff that Defendant has posted on the Internet.”

57. Curiously, the prayer for relief did not request an order directing Mr. Collins, to take all action to remove or request removal of the statements from <pissedconsumer.com>. The conspirators did not want to bring the scheme to the attention of anyone who would shine light on their unlawful actions.

58. Mr. Lapham filed the Complaint on March 2, 2016.

59. The next day, March 3, 2016, Mr. Lapham filed a Stipulation for Final Judgment and Permanent Injunction with the Superior Court. A true and complete copy of that Stipulation is attached hereto as Exhibit 4.

60. Having obtained a stipulated injunction from the Court, the conspirators then approached various search engines including, on information and belief, Google, Yahoo!, and Bing and requested that those search engines deindex the pages of <pissedconsumer.com>. Instead of limiting the deindexing to the pages that contained statements Mr. Collins claimed to have posted, the request to deindex included all web pages with entries about Nevada Corporate Headquarters.

61. By engaging in this scheme, Defendant Conspirators obtained a court order under false pretenses and used the court order to persuade popular search engines to deindex every statement about Nevada Corporate Headquarters, including the First Amendment protected statements of opinion and true fact posted by other individuals who were not a party to the underlying action… .

[Details of the other cases omitted for space reasons — see the Complaint for more. -EV]

FIRST CLAIM FOR RELIEF

Unlawful, Unfair, and Fraudulent Business Practice under California Business and Professions Code § 17200 (Against All Defendants)

… 118. The acts and conduct of Defendants, and each of them as alleged above in this Complaint constitute unlawful, unfair, and/or fraudulent business acts or practices as defined by California Business and Professions Code § 17200 et seq… .

SECOND CLAIM FOR RELIEF

Abuse of Process (Against All Defendants)

… 124. Defendants did not file the above described actions for the purpose of determining the liability of the Stooge Defendnats or assessing an amount of damages. Rather, the Defendants filed the complaints for the purpose of obtaining a court order to serve on third party search engines such as Google in order to persuade those search engines to deindex portions of Plaintiff’s website. Defendants filed the actions to avoid the adversarial process ordinarily involved in litigation.

125. As a result of Defendants’ unlawful acts, Plaintiff Consumer Opinion LLC was damaged. Specifically, for a time when individuals searched for information about the beneficiaries of the fake lawsuits, search engines no longer produced any results indicating that consumers had posted information about the beneficiaries on the pissedconsumer.com website. Those consumers did not proceed to pissedconsumer.com and did not learn of the negative reviews… .

THIRD CLAIM FOR RELIEF

CIVIL CONSPIRACY (Against All Defendants)

… 128. Defendants, and each of them, conspired, confederated, and colluded with the other defendants to engage in the above described scheme which constitutes a fraudulent and unfair business practice and an abuse of legal process to Defendants’ economic benefit and Plaintiff’s economic harm… .

134. Accordingly, all Defendants are jointly and severally liable for the actions of their co-conspirators.

The initial complaint also included a case brought by a plaintiff called ADN, on behalf of Dan Newlin. But Newlin was then dropped from the complaint a few days after it was filed, because it turns out that he was the one who first alerted Pissed Consumer to what was going on. Newlin stated to me that the firm had “hired a reputation management company to monitor and help the firm’s online presence, which included search engine results,” but was then surprised to learn that a case had been filed — without the firm’s approval — to get the Pissed Consumer page deindexed. He then promptly told Pissed Consumer about this (Pissed Consumer confirms this) and also alerted Google as well. It is certainly possible that some of the other defendants likewise were unaware that the “reputation management” people whom they hired were filing such lawsuits on their behalf.

Originally Found On: http://www.washingtonpost.com/news/volokh-conspiracy/wp/2016/10/31/lawsuit-against-lawyers-who-allegedly-filed-improper-lawsuits-aimed-at-getting-internet-criticism-deindexed-by-google/

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Short Circuit: A roundup of recent federal court decisions

(Here is the latest edition of the Institute for Justice’s weekly Short Circuit newsletter, written by John Ross.)

Would shrinking the Supreme Court to six members reduce “judicial activism”? The Center for Judicial Engagement’s Evan Bernick critiques a provocative proposal by Professor Michael Stokes Paulsen. Read it here.

Last week on the podcast: IJ Senior Attorney Robert McNamara joined the panel and talked a trio of Posner opinions.

  • Harvard law student submits article with plagiarized commentary to student publication. She is allowed to graduate, but the incident is noted on her transcript. Then-law student: Which is defamatory and a breach of contract. First Circuit: It’s neither.
  • Allegation: Gov’t contractor vocally opposes reelection of Moosic, Penn. ,official. The official presses other officials not to renew the contractor’s contract. (They renew it.) Third Circuit: If the official had threatened or coerced the other officials in some way, the contractor’s retaliation claim could proceed. But such conduct has not been alleged.
  • In 1995, South Carolina teenager pleads guilty to murder. Then-teenager: I only took the plea deal because I was facing the death penalty, which has since been held unconstitutional for juvenile offenders. May I withdraw my plea? Fourth Circuit: No.
  • Nonprofit: Deserving refugees are not getting asylum because of their suspected involvement with unnamed terrorist groups, including those who machinate exclusively against enemies of the U.S. Many groups are likely misclassified; the gov’t must declassify what groups it considers to be terrorists. Seventh Circuit: Mustn’t. Concurrence: Congress ought to look into this though, if it’s indeed the reason so few Syrian Christians are getting asylum.
  • In Facebook posts, Brainerd, Minn., nursing student disparages classmates, opines on his anger-management issues. He’s expelled. Former student: The school doesn’t have the authority to police off-campus speech unrelated to an academic assignment, and the program’s code of ethics is rather vague on what conduct amounts to unacceptable unprofessionalism. Moreover, I was entitled to notice, a hearing, due process. Eighth Circuit (over a dissent): There’s no First Amendment violation, and a single meeting with administrators was all the process that he was due.
  • The Pacific bearded seal is not endangered, but it will be by 2095, say the feds. Can the seal go on the endangered species list now (which will hinder offshore drilling)? Go for it, says the Ninth Circuit. The feds’ judgment that the seal will not adapt to the warming predicted by climate models is entitled to Skidmore deference.
  • California corrections official: When I put inmate who filed (now-substantiated) complaint of excessive force in administrative segregation for three months, I wasn’t retaliating. I was looking after his safety, as required by state rule. Ninth Circuit (over a dissent): Doubtful. A jury may well think otherwise.
  • Tenth Circuit: The federal law governing when and how the Bureau of Land Management is to remove wild horses from public and private lands is unworkable for a particular stretch of southwestern Wyoming. Nonetheless, the agency’s attempt to reinterpret the law into something workable is not entitled to Chevron deference because the law is not ambiguous; the removal of 1,263 horses from the area exceeded the agency’s authority.
  • Change to sentencing guidelines makes drug convict eligible for shortened sentence. Prosecutors: The gentleman made a rap video identifying and threatening witnesses against him. Tenth Circuit: So a sentence reduction is not in the cards.
  • In June, an Eleventh Circuit panel ordered the Board of Immigration Appeals to reconsider its ruling that a particularly winsome green-card holder is deportable. Last week: “The panel is now advised that the BIA does not deem this court’s … opinion sufficient to accept [the] case on remand.” Which will not fly.

In May 2016, Navajo County, Ariz., police seized Terry and Ria Platt’s car, which they had lent to their son. Prosecutors moved to forfeit the car despite the fact that their son’s alleged misdeeds — possessing cash and a small amount of marijuana — do not give rise to forfeiture in Arizona. After the prosecutors told the court that the Platts had never filed a claim seeking the return of the vehicle (they had), the Platts filed a constitutional challenge to Arizona’s forfeiture regime. And this week, prosecutors agreed to return the car. Huzzah! Nevertheless, the prosecutors have a seven-year window to refile the forfeiture action, and they maintain that their actions were completely legal. Thus, the Platts’ suit must go on to protect themselves and so that other innocent property owners do not suffer the same abuses. Read more here.

Originally Found On: http://www.washingtonpost.com/news/volokh-conspiracy/wp/2016/10/31/short-circuit-a-roundup-of-recent-federal-court-decisions-27/

Sex discrimination and the transgender bathroom case

Bathroom

Recently, the Supreme Court decided to hear Gloucester County School Board v. GG, the case of a biologically female high school student who identifies as a transgender boy, and seeks access to the boy’s bathroom at the school. GG argues that the school’s policy qualifies as sex discrimination and therefore violates Title IX, the 1972 federal law mandating that “[n]o person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving Federal financial assistance.” The exclusion of transgender students from the bathrooms of their choice is indeed sex discrimination. The problem, however, is that exactly the same is true of all sex segregation in bathroom facilities. That complication is a serious problem for GG’s case.

I. Why Transgender Discrimination in Bathroom Assignments is Sex Discrimination.

In an insightful recent blog post, Cornell law professor Michael Dorf defends GG’s position:

At first blush, the argument for G.G. that there is a prima facie violation of Title IX looks like a slam dunk. After all, Title IX forbids sex discrimination and the school tells him he can’t use a particular restroom because of (what it deems to be) his sex. (Biologically born) boys can use the boys’ restroom; G.G. can’t because the school regards him as a girl. That’s sex discrimination, plain and simple….

Suppose two high school boys: G.G., a trans boy, and F.F., a cisgender male. Under the school district policy, F.F. but not G.G. is entitled to use the restroom that corresponds with his gender identity. What’s the difference between F.F. and G.G.? Why, biological sex at birth. Thus, the policy literally draws distinctions on the basis of sex in violation of Title IX. QED.

Everything that Dorf says above is absolutely true. GG is treated differently from FF solely because of his biological sex. And differential treatment based on gender is indeed the essence of sex discrimination, just as differential treatment based on race qualifies as race discrimination. Dorf correctly analogizes the situation to the argument that laws banning same-sex marriage discriminate on the basis of sex. Under that regime, invalidated by the Supreme Court last year in Obergefell v. Hodges, Anne had a legal right to marry Bob, but Charles did not. The only difference between Anne and Charles is their gender. As the coauthor of an amicus brief urging the Court to strike down laws banning same-sex marriage because they qualify as sex discrimination, I completely agree that sex discrimination is sex discrimination even if it is in some sense symmetrical. The fact that both men and women were equally forbidden to marry members of the same sex does not change the fact that their legal rights were restricted on the basis of gender. In the same way, the fact that both blacks and whites were once equally forbidden to marry members of the other race does not change the reality that their legal rights were restricted on the basis of race.

Following the same reasoning, the fact that both men and women are required to use sex-segregated bathrooms does not undermine the fact that there is sex discrimination going on. Indeed, such an arrangement is the very essence of sex discrimination. Similarly, a system where there are separate bathrooms for blacks and whites qualifies as race discrimination – even if the regulation applies equally to both races, and the two sets of bathrooms are of equal quality.

II. Why it Still (Probably) Does Not Violate Title IX.

So far so good for GG. The problem, however, is that the above argument could just as easily be made by “BB,” a biologically female student who is not transgender, but simply wishes to use the boys bathroom for some other reason (perhaps because she finds its location more convenient). Like GG, BB “can’t use a particular restroom because of (what [the school] deems to be) h[er] sex.” If it is illeegal sex discrimination to exclude GG from the boys room, the same is true of the exclusion of BB. The logical result would be to make sex-segregated bathrooms illegal in all educational facilities receiving federal funds covered by Title IX.

Supporters of same-sex marriage are more than willing to bite the analogous bullet when it comes to marriage. When courts strike down laws banning same-sex marriage, that eliminates all gender-based restrictions on who you can marry. It does not matter whether you are conventionally male or female, or transgender. Similarly, striking down racial segregation in bathrooms eliminates all laws and regulations assigning bathroom facilities by race, just as Brown v. Board of Education undercut all laws assigning students to public schools on the basis of race.

The Gloucester County case, however, is not like Brown or Obergefell. Transgender rights advocates are not seeking to abolish all sex discrimination in bathroom facilities. Title IX has long been understood to permit sex-segregated bathrooms, locker rooms, and sports teams, and transgender advocates don’t challenge that view.

They want to maintain the system of sex segregation, but have transgender students assigned to bathrooms on the basis of their sense of identity rather than biology. A possible historical analogy is Gong Lum v. Rice, the 1927 Supreme Court case where Chinese-American parents argued that the state of Mississippi should classify their daughter as white rather than “colored,” for purposes of assignment in the state’s system of segregated schools. The Lums were not attacking the state’s system of racial segregation, but merely claiming that their child’s race was misclassified. Similarly, GG’s lawyers maintain that the school district incorrectly classified his sex, by grouping him with girls (based on biology) rather than boys (based on gender identity).

If GG is not challenging the system of sex discrimination, but merely his classification within that system, then the mistake in classification does not itself qualify as sex discrimination. Title IX forbids discrimination on the basis of sex, not misclassification of sex. If this is just a case of misclassification, GG is likely to lose, just like the Lum family ultimately lost their case. Perhaps misclassification violates some other state or federal law. But it does not seem to violate Title IX.

Alternatively, perhaps sex-segregation in bathroom facilities does not qualify as sex discrimination at all, or at least not the kind addressed by Title IX. In that event, GG would lose even if he can prove that he was indeed the victim of sex discrimination, rather than mere misclassification. Such sex discrimination in bathroom assignments would be legal.

The Supreme Court could escape this conundrum by ruling that Title IX does in fact ban sex discrimination in bathroom assignments, regardless of how the law has been interpreted previously. After all, the wording of the law bans all sex discrimination in federally funded education programs, with no exception for bathrooms.

But that solution is highly unlikely. The Court is traditionally reluctant to set aside longstanding interpretations of statutes, even if they were initially mistaken. Unlike in the case of mistaken interpretations of the Constitution, Congress can always change a misinterpreted federal statute simply by passing a new one. Moreover, neither the justices nor American society generally are likely to accept mandated unisex bathrooms in all schools and universities receiving federal funds, which include virtually all public schools and colleges, and the vast majority of private universities.

The justices could also avoid this issue by deferring to the Department of Education’s interpretation of the statute, which holds that exclusion of transgender students from the bathrooms of their choice is indeed discrimination. Many legal scholars believe this is the most likely path to victory for GG. They may well be right. A decision based on deference would allow the Court to protect transgender students, while sidestepping the thorny sex discrimination issue. But, as Dorf explains, the case for deference here is actually quite weak. Among other things, he effectively demonstrates that the point at issue is the agency’s interpretation of Title IX itself, not merely its interpretation of its own previous regulation permitting sex-segregation in school bathrooms. Jonathan Adler notes some additional flaws in the deference theory here.

To avoid misunderstanding, I should emphasize that I sympathize with the painful situation faced by students like GG, and I have no objection to letting them use the bathroom of their choice, though I’m not sure it’s a good idea to have a nationwide federal regulation on the subject. I don’t even necessarily object to unisex bathrooms. In college, I spent three years living in a dorm with unisex bathroom facilities, and it was not a problem (the school was not making an ideological statement; because Amherst College had been all-male until the mid-1970s, many buildings still had only one set of bathrooms).

But, setting the issue of deference aside, I am skeptical that GG’s sex discrimination argument can succeed unless we interpret Title IX to ban sex-segregated bathrooms generally. And I highly doubt that the Supreme Court is prepared to go that far.

Originally Found On: http://www.washingtonpost.com/news/volokh-conspiracy/wp/2016/10/31/sex-discrimination-and-the-transgender-bathroom-case/

Audio edition of “Democracy and Political Ignorance”

dpi-amazon-image-2

The audio version of my book Democracy and Political Ignorance: Why Smaller Government is Smarter is now available just in time for the end game of a presidential election in which public ignorance has played an even bigger role than in most others.

I would like to thank Stanford University Press for arranging the audio book version and Peter Lerman for his excellent narration.

Originally Found On: http://www.washingtonpost.com/news/volokh-conspiracy/wp/2016/10/31/audio-edition-of-democracy-and-political-ignorance/

A setback for First Amendment protection for anonymous speech

Continuing the one-step-forward, one-step-backward pattern that has characterized the cases examining the constitutionality of state sex offender registry statutes, the Illinois Supreme Court has upheld the provisions of the Illinois sex offender statute compelling disclosure of all “Internet identifiers” just a few weeks after the district court in Florida struck down, on First Amendment grounds, a virtually identical provision in the Florida statute.

Here’s the background: Mark Minnis was convicted of “criminal sexual abuse,” a misdemeanor, in 2010; he was 16 years old at the time, and his conviction was based on his having had sexual relations with a 14-year-old girl. He was sentenced to 12 months probation, which he completed without incident.

His conviction, however, had much more serious and lasting consequences — consequences that may follow him for the remainder of his life — because it placed him on the Illinois sex offender registry. Individuals on the Illinois registry, like registrants in most of the 50 states, have to disclose the following information to state law enforcement officials:

all e-mail addresses, instant messaging identities, chat room identities, and other Internet communications identities that the sex offender uses or plans to use;

all Uniform Resource Locators (URLs) registered or used by the sex offender; [and]

all blogs and other Internet sites … to which the sex offender has uploaded any content or posted any messages or information ….”

This information is then made available to the public:

“Law enforcement officials must disclose [the identifier information] to the following county entities: institutions of higher education, public school boards, child care facilities, libraries, public housing agencies, the Illinois Department of Children and Family Services, social service agencies providing services to minors, and volunteer organizations providing services to minors. For all other members of the public, this information must be made available upon request and may be placed ‘on the Internet or in other media.’ Further, the Illinois State Police must maintain an Internet website that makes sex offenders’ registration information available to the public.”

Minnis registered two email identifiers, along with his Facebook username, in 2011; in his 2014 registration, however, he omitted the Facebook identifier. Police officers, having “viewed [his] publicly accessible Facebook profile online [and] observed that he changed his Facebook cover photo only one month prior to his registration,” charged him with violating the Internet identifier disclosure provision of the statute (a felony, punishable by 1 year in prison).

Minnis challenged the statute on the grounds that it unconstitutionally abridged his right, protected under the First Amendment, to speak anonymously. The state appellate court court agreed, holding that the Internet disclosure provision was unconstitutional both on its face and as applied to defendant, but the Illinois Supreme Court overturned that decision and upheld the statute.*

* This case is a close cousin of the case (North Carolina v. Packingham) that, as Eugene recently noted, will be heard this term by the Supreme Court. Both cases involve a First Amendment challenge to a state sex offender registry statute. But the two challenges have different legal foundations; while both statutes compel the disclosure of Internet identifiers, the North Carolina statute additionally prohibits registrants from accessing any social media websites that allow persons under the age of 18 to open accounts or post messages, and the North Carolina case turns on that provision, rather than the compelled disclosure provision at issue in the Illinois case.

The court paid the usual deep-toned lip service to the importance of protecting anonymous speech — “The first amendment right to freedom of speech includes the right to publish and distribute writings while remaining anonymous … Anonymity is a shield from the tyranny of the majority [and] thus exemplifies the purpose behind the Bill of Rights, and of the First Amendment in particular: to protect unpopular individuals from retaliation — and their ideas from suppression — at the hand of an intolerant society” — while simultaneously demonstrating just how weak a reed that protection really is.

The court applied the decidedly weak tea of “intermediate scrutiny” to the Internet disclosure provision — reversible error No. 1** — under which the government need only demonstrate that the disclosure provisions (a) “serve or advance a substantial governmental interest unrelated to the suppression of free speech,” and that they (b) “do not burden substantially more speech than necessary to further that interest.” No need, importantly, for the government to show, as it must under more robust “strict scrutiny” — that the statute is the “least restrictive or intrusive means of advancing the government’s interest”; rather, the constitution is satisfied so long as the law advances that governmental interest “more effectively” than it would be advanced without the law in question.

** In my opinion (see here) courts must apply the highest level of First Amendment scrutiny — “strict scrutiny” — to statutory schemes that, like the Illinois statute here, completely destroy the ability of a class of persons to communicate anonymously online.

Part (a) was (and always is) easy enough: The governmental interest (“preventing sex offenses against children and protecting the public”) is (obviously and uncontroversially) substantial, and the disclosure provisions serve that interest by “provid[ing] crucial information to law enforcement agencies monitoring the movement of sex offenders, and disseminating the information to the public.”

You might pause for a moment and consider just how government-friendly this part of the test is. A statute requiring all high school teachers, or all auto mechanics, or all librarians, etc. to disclose all of their Internet identifiers to the police would also, surely, serve a substantial government law-enforcement interest, because after all, many high school teachers, auto mechanics, and librarians commit crimes of various kinds, and it would surely help to prevent some of those crimes if law enforcement had more complete information about what all of those people are doing online.

To the extent “intermediate scrutiny” has teeth — and I’m generally skeptical of this point — it comes in part (b): Has the government demonstrated that these disclosure provisions do not “burden substantially more speech than necessary” to advance that interest?

Here’s how — reversible error No. 2 — the court disposed of that question:

We conclude that the Internet disclosure provision advances the substantial governmental interest of preventing sex offenses against children and protecting the public from the danger of recidivist sex offenders. The disclosure provision identifies the locations on the Internet to which the sex offender has transferred expressive material from his computer or has otherwise engaged in communication. These disclosures empower the public, if it wishes, to make the informed decision to avoid such interactions. The information required for the public to protect itself is broad because any communication by a sex offender with the public is related to the statutory purpose.

There – that was easy! Any communication by a sex offender with the public is related to the statutory purpose (including, one must suppose, Mr. Minnis’s declaration that he “likes” Lady Gaga’s new album, or that his soccer club is meeting on Wednesday night, or that he’s really pissed off about the pace of construction on I-80 outside of Rockford, Ill., … anything, in other words, that might appear on his Facebook page or that he might post on the Facebook pages of others), so burdening all of Minnis’s speech — eliminating the right to speak anonymously for all of his online communications — is necessary to serve that purpose.

If that’s all it takes to satisfy the Constitution, anonymous online communication is, for all intents and purposes, a dead duck. Remember: first they came for the Socialists

Originally Found On: http://www.washingtonpost.com/news/volokh-conspiracy/wp/2016/10/31/a-setback-for-first-amendment-protection-for-anonymous-speech/

Was it legal for the FBI to expand the Weiner email search to target Hillary Clinton’s emails?

Hillary Clinton adviser Huma Abedin, right, at the third presidential debate on Oct. 19. (Drew Angerer/Getty Images)

FBI Director James B. Comey recently announced that the FBI had discovered new emails that might be relevant to the investigation of Hillary Clinton’s email server. The emails were discovered in an unrelated case, and the FBI now plans to search through the emails as part of the Clinton server investigation.

Comey’s announcement raises an important legal question: Does expanding the FBI’s investigation from the unrelated case to the Clinton case violate the Fourth Amendment?

We don’t know all the facts yet, so it’s somewhat hard to say. But here’s why the expansion of the investigation might be constitutionally problematic. Consider this a tentative analysis unless and until more facts emerge.

From what I can patch together, the FBI was investigating former congressman Anthony Weiner for potential crimes involving sexting with an underage girl. As part of the investigation, the FBI seized Weiner’s laptop to search it for evidence of the sexting crimes. I would guess, although I haven’t yet been able to confirm, that the FBI obtained a warrant to search Weiner’s computer. The Fourth Amendment would generally require a warrant to search a suspect’s personal computer unless there are special circumstances such as consent that haven’t been mentioned in press reports.

The case connects to Clinton because the laptop happens to have been shared by Weiner and his now-estranged wife, Huma Abedin, who is an an important adviser to Hillary Clinton. In the course of searching Weiner’s laptop, the FBI came across emails in Abedin’s email account that appeared to the agents to be relevant to the Clinton email server case. According to news reports, the FBI now is planning to get a warrant to search the laptop for emails related to the Clinton server case. They haven’t obtained that warrant yet, however, so the Weiner computer has not yet been subject to a comprehensive search.

If these facts so far are accurate, the FBI may have violated the Fourth Amendment in expanding the investigation from Weiner to Clinton. Here’s the problem. If the FBI was searching Weiner’s computer, it presumably had a warrant authorizing the search of the computer only for Weiner’s communications with underage girls. If that is correct, going from that narrow search to a broader search of Clinton’s emails raises two potential problems for the FBI.

The first issue is whether the FBI was permitted to search through Abedin’s email account for records of Weiner’s illegal messages with underage girls. In People v. Herrera, 357 P.3d 1227 (Colo. 2015), the Colorado Supreme Court provided some reason to think that the answer may be “no.” In Herrera, the government had a warrant authorizing the search of a cellphone for messages between the defendant and an undercover officer who had posed as a underage girl. When the police executed the warrant, the officers also searched a folder that contained messages between the defendant and a different (real) underage girl. The court held that searching the folder violated the Fourth Amendment because the only evidence authorized to be seized in the warrant — the messages between the defendant and the undercover officer — weren’t likely to be in the folder containing messages between the defendant and the other girl. I have criticized that reasoning, but it raises questions about whether the FBI could look through Abedin’s account for Weiner’s illegal emails.

There might be similar problems because the alleged Weiner texting crimes apparently occurred in 2016. I gather that the Clinton emails were from her time as secretary of state, which was several years earlier from 2009 to 2013. If I’m right that there was a several-year gap between the warrant crime and the second investigation, it’s not clear the government could search through older emails for evidence of such a recent crime. See Wheeler v. State, 135 A.3d 282 (Del. 2016) (holding that the Fourth Amendment was violated when a warrant to search computers for witness tampering that occurred in 2013 did not include a date restriction on how far back the search could extend; evidence of crime from a computer not used since 2012 suppressed as a result).

A second issue is whether the FBI was permitted to seize the Abedin emails, which were outside the scope of the warrant, and to use them to reopen the investigation into Clinton’s email server. I think this is the bigger legal issue for the FBI. Most courts have treated this as a matter of the “plain view” exception. If the government is searching a computer, and it comes across files that are outside its warrant but are clear evidence of second unrelated crime, the usual government practice is to take those files and use them to get a second warrant to search the computer for the second crime. That’s what the FBI appears to be doing here. They are getting a second warrant after discovering Abedin’s emails because what was likely a first warrant for Weiner’s emails wouldn’t justify the second and broader search. See, e.g., United States v. Carey, 172 F.3d 1268 (10th Cir. 1999).

But if that’s true, there’s a problem: The plain view exception does not allow evidence to be seized outside a warrant unless it is “immediately apparent” upon viewing it that it is evidence of another crime. Just looking quickly at the new evidence, there needs to be probable cause that it is evidence of a second crime to justify its seizure, which would presumably be necessary to apply for the second warrant. See Arizona v. Hicks, 480 U.S. 321 (1987); United States v. Williams, 592 F. 3d 511, 522 (4th Cir. 2010).

But it’s not clear how that would be the case here. Comey’s letter to Congress is really tentative. It says that the FBI has discovered emails that “appear to be pertinent” to the Clinton investigation. Comey then says that the FBI should take “appropriate investigative steps designed to allow investigators to review these emails to determine whether they contain classified information, as well as to assess their importance to our investigation.” One report says that the FBI has “no idea” about the content of the emails.

The Fourth Amendment plain view standard doesn’t allow a seizure of emails based on a mere we-hope-to-later-determine standard. The government can’t seize the emails just because the Clinton investigation is extra important and any possible evidence is worth considering. Rather, the Fourth Amendment requires the initial look at the emails to generate “immediate” probable cause that they are evidence of a crime first, before their seizure is permitted and used to get a second warrant.

Was the plain view discovery sufficiently clear and illuminating that it gave the FBI that probable cause? We don’t yet know.

I should add that the scope of the plain view doctrine for computer searches is very much in flux, which adds some uncertainty to this issue. For example, the FBI might argue that using the discovery of the Clinton emails to apply for a second warrant was permitted by the first warrant and is not an additional “seizure” and therefore does not need to be justified. By that reasoning, the FBI is free to scour Weiner’s laptop for evidence of any other crimes for as long as it wants, and to take its time to see if there is enough evidence to justify a second warrant.

I think that’s a somewhat hard argument to make in light of the plain view cases such as Carey and Williams, but it’s at least possible. I should also add that some courts and scholars, myself included, have suggested that the plain view doctrine should be narrowed or even eliminated in computer search cases. Under that reasoning, expanding the search becomes more clearly problematic. See this recent article for more on my views.

I should also flag the question of whose rights are at issue, which determined who would have standing to enforce their rights. The computer was used by Weiner and Abedin, which means that it’s only their Fourth Amendment rights, not Clinton’s or other staffers’, that are potentially at stake. Hypothetically, if the FBI violated the Fourth Amendment in the course of getting to the Clinton emails, and the emails end up revealing crimes involving Clinton staffers and Clinton, the only Clinton person who could move to suppress the evidence would be Abedin.

As I noted at the beginning, this a tentative analysis unless and until more facts emerge. My apologies if I missed some relevant facts that have already been disclosed. I looked around, but in my haste to get out a post I very well might have missed something. I’ll probably be pretty busy Sunday, but I’ll try to update the post if necessary if I missed something big — thanks in advance for your patience.

Originally Found On: http://www.washingtonpost.com/news/volokh-conspiracy/wp/2016/10/30/was-it-legal-for-the-fbi-to-expand-the-weiner-email-search-to-target-hillary-clintons-emails/