Florida Legislator wants to Pass a Law to Make Bloggers Register

Some chucklehead needs to read the Constitution. A Florida State Senator, Jason Brodeur, wants bloggers who write about Florida officials, and he includes himself and the legislature under this umbrella, to register with the state or potentially face fines. This is patently unconstitutional.

The First Amendment prohibits any law that would abridge the freedom of speech, or of the press. This law is so offensive to the freedoms granted, I can’t believe the idea made it far enough for the bill to be filed. The registration requirements, and potential penalties, create what’s called a “chilling effect” that would run afoul of our right to free expression.

This country was founded on the principle of being permitted to critique the government. I do have a personal interest as a blogger, albeit occasionally, who sometimes writes about the government. But this bill is offensive to the First Amendment regardless of which side you are on. If we had a “woke” government that he disagreed with, would we not be allowed to criticize it? Of course we would, and it’s preposterous to try to restrict comment on the government.

The Florida Constitution also provides that no law shall be passed that restrains or abridges the liberty of speech or of the press. So this law would violate the U.S. Constitution and the Florida Constitution. It’s a double-unconstitutional law — Jason Brodeur would restrict our rights under both Constitutions. I hope the citizens of Lake Mary found out what he is trying to do and find someone to primary him.

This is supposed to be the Free State of Florida. If this pinhead Jason Brodeur doesn’t respect the Constitutional rights of Floridians, he does not deserve to to represent us in the legislature. It will obviously get laughed out of court when it gets challenged, but it should never get passed into law. Brodeur should talk to a lawyer, a law student, even, and withdraw this clearly unconstitutional bill. It’s appalling that a lawmaker would try to impede our Constitutional rights.

I Found a Good Explainer on the Depp / Heard Verdict (Updated)

*Update*- There are indications on the internet that the article I cited as a good explainer was plagiarized from an earlier Tweet-thread by Natalie Whittingham Burrell: @natlawyerchic on Twitter. Ms. Whittingham Burrell’s thread predates the ATL article – she posted on June 2, per Twitter. ATL indicates in an Ed note that they received the draft article on June 3. So, while the language is different, the issues raised, the discrepancies cited and even case law references are the same. I’m going to leave my post which references the Warshow article on ATL, but I’m going to add links to the Whittingham-Burrell thread, which, even if it was not plagiarized, had the scoop on ATL. Also, Ms. Whittingham-Burrell included some photographs in her thread that are very useful for context.

I was only able to watch small fractions of the trial, and edited posts on social media often don’t shed much light on the subject, so I’m happy to share a more thorough analysis. Out-of-context clips can give one a lopsided view of a trial, when it needs to be seen in totality to truly understand the verdict. I found an excellent explainer from Diana Warshow on Above the Law that really digs into the allegations and the evidence presented to the jury. This is about the most comprehensive one I’ve seen, and it addresses many of the questions I’ve heard about why the jury found in favor of Depp, despite Heard claiming evidence of injuries.

One issue this article doesn’t get into is the likability of witnesses, which goes heavily to their credibility. Johnny Depp is a huge movie star whose testimony was generally well-received by outside observers, judging by the social media reaction. Amber Heard, while being a move star in her own right, is not as well known or successful as Depp has been, and her testimony was not apparently as well-received by the general public as indicated on social media. In light of the verdict, one suspects that the perception of the testimony, both from a likability standpoint, and in light of contradictions pointed out in the ATL article, the jury certainly found Mr. Depp’s testimony more credible.

I’m not taking sides on Team Depp or Team Heard, but the jury who listened to weeks of testimony had a clear winner in awarding millions more to Mr. Depp.

Again, Twitter commentator Natalie Whittingham-Burrell had an excellent tweet-thread with some reasons why Depp won.

Florida Supreme Court to Hear Marsy’s Law Challenge

Florida Supreme Court

The Florida Supreme Court has accepted a case that deals with Florida’s ‘Marsy’s Law’- a legal provision that – among other things – prohibits the release of personal information for victims of crime. Since it was passed as an amendment to the Florida Constitution, it has been the subject of much litigation for First Amendment as well as its criminal ramifications. The case now before the Florida Supreme Court deals with First Amendment implications, specifically the release to media of law enforcement names when the officers are also implicated as the victims. The irony in this case is that one of the officers shot a man named Tony McDade, but claims that McDade’s actions made the officer a victim. Officers have sued to try to prevent their agency from releasing their names to the press, while the city hoped to release the names in the interest of police accountability.

The media has countered that allowing officers to be covered by the law would undercut the state’s open records laws. Florida has very broad laws allowing for publishing public records, often referred to as Sunshine Laws. However, though the name suggests Marsy’s Law is a law, it’s actually a Constitutional provision, which may end up trumping the open record laws. And while the First Amendment protects the right of media to publish information, it does not compel agencies to release information. The appellate court previously sided with the officers, ruling that they were entitled to the protection. Whether or not the policy is a good one is not before the court.

Alan Dershowitz Scores a win in Defamation Suit Against CNN

Famed attorney Alan Dershowitz sued CNN for defamation related to its coverage of his argument in the first Trump impeachment trial. He alleges that CNN misleadingly edited a clip of his statements to give a false impression about his argument… and then propagated that misperception by replaying the clip and repeating it through pundits who based their arguments on the inaccurate summary of his statement. CNN filed a motion to dismiss, arguing that his claim does not rise to the high level needed to show defamation against a public figure, among other things. The judge ruled that the claim does meet that burden, allowing the case to go forward, and scoring a huge win for Dershowitz.

One of the arguments made by CNN is that their coverage of Dershowitz’s arguments should be protected by the fair report privilege. The court agreed that verbatim statements in a public proceeding like an impeachment trial are generally protected when they are repeated verbatim, or are an “accurate or a fair abridgement.” But here, Dershowitz’s claim was that there was a deliberate scheme to defraud by playing the truncated clip, and then playing the pundits’ statements to present the comments in a defamatory matter. He will still have to prove it at trial, but Dershowitz’s allegations are sufficient to defeat the motion to dismiss. The court agreed with Dershowitz that “CNN presented an official proceeding in a misleading manner and the fair report privilege does not apply.”

This is bad for CNN. The court went on to explain that the abridgement of Dershowitz’s statement was inaccurate, in that it omitted a crucial qualification. The court said CNN could argue to a jury that Dershowitz’s statement was ambiguous and that CNN was reasonable in its belief about what Dershowitz argued. That’s a tough sell in light of the qualifying statements that CNN chose to redact from the clip. A failure to defeat a motion to dismiss is usually when media companies see the writing on the wall and look to settle. But beyond the liability for damages here, it’s bad for CNN because the judge essentially made a finding that CNN was presenting false reporting. The court said, “For the fair report privilege to apply, a defendant must have ‘presented a fair and accurate report of the source documents.’ The CNN broadcasts do not meet that standard.” [citation omitted].

Ouch. The “Most Trusted Name in News” just had a federal judge make a finding that it failed to present fair and accurate information.

This could also be bad for other media outlets, particularly those of the cable talk-show type. While it may feel good for them to dance a little over CNN’s misfortune, many other stations have used the format where they play a clip, and then have pundits attack the speaker. This ruling suggests than if they A: play a clip that is edited or redacted so as to be misleading, and B: then repeat it through pundits, even if those commentators couch their punditry as criticism. That’s been a common practice on many media outlets, and CNN has now shown that they can be called on that practice. This is an important ruling for defamation law.

Judge Throws man in Jail for Writing Critical Letter After His Case

A judge in Palm Beach County filed contempt charges against Derrick Jenkins, who was sentenced to 30 days in jail, for a harshly worded letter critical of the judge after Jenkins’ case was dismissed. In addition to being critical, Jenkin’s letter was profane, stating ““f—— hypocrit” and he “cant wait til the voters wake up and get rid of these f—— clowns you call judges.” [sic] Judge Howard Coates did not take kindly and initiated contempt proceedings. Another judge was assigned, and found Jenkins’ words a danger to the orderly administration of justice, found Jenkins guilty or contempt of court, and sentenced him to 30 days in jail with 6 months of probation.

If that sounds a problematic, you’re right. The First Amendment guarantees the right to free speech, and its protections are strongest for speech that is critical of the government. There are limits, for instance it wouldn’t be prudent to shout insults and expletives at a judge in open court. However, there was no disruption of any proceedings in this case. In fact, Mr. Jenkins’ underlying case was closed, the court had dismissed his claim against the Sheriff’s Office, so there was no pending matter. The letter would lose its protection if it contained true threats, but claiming an investigation or to have a judge voted out is not a true threat- that’s the Constitutionally preferred way to deal with those officials we disagree with. Judge Warner said, “That’s what you do when you’re unhappy with the judge. You say, ‘we’re going to vote him out of office'” according to the Palm Beach Post.

Appellate arguments were Tuesday, and the statements and questions raised by the judicial panel hearing the appeal don’t appear to take kindly to the arguments in favor of the conviction. The case does not seem to meet any of the exceptions to the protections provided by the first amendment, in spite of the fact the allegations may have been “scandalous and noxious,” in the words of the offended judge. It will likely be several weeks or even a few months until the appellate court rules.

What exactly is Sedition?

As the first indictments are coming down from the riot that occurred at the Capitol last week, the allegation of sedition has been referenced several times. Since it’s not a statute that is prosecuted very frequently, I thought it worth considering the legal definition. Federal Law defines “Seditious Conspiracy” under 18 U.S. Code § 2384 as “…two or more persons in any State or Territory, or in any place subject to the jurisdiction of the United States, conspire to overthrow, put down, or to destroy by force the Government of the United States, or to levy war against them, or to oppose by force the authority thereof, or by force to prevent, hinder, or delay the execution of any law of the United States, or by force to seize, take, or possess any property of the United States contrary to the authority thereof…” It’s a felony that carries a fine or a prison sentence up to 20 years. It certainly seems that those rioters who occupied the Capitol building would be subject to prosecution under this statute.

First, it requires that two or more people be conspiring, and there were hundreds working together to breech the Capitol building, so that element is satisfied. While it mentions putting down the government, which is arguable, it also includes other ways to break the law including levying war, oppose the authority of, hinder the execution of law or most notably, “by force to seize, take, or possess any property of the United States”. That certainly seems to be an apt description of the mass of people who breeched the Capitol building and occupied it. The Federal government certainly could make a case that the activity was seditious, especially if more information were to come out about conspiratorial actions in the lead up to the riot.

Some have suggested the President could also be criminally liable for the inflammatory language he used preceding the riot. It would be difficult for him to face criminal liability, though he not need be present to have conspired to commit a crime. Conspiracy charges, such as Seditious Conspiracy, punish not only the direct actors, but those that conspire with them. However, since the President did not directly call for invading the building, it would be difficult to make a case without something more. If things come to light over time that suggests there were actions or conversations with the President and those intending violence at the Capitol, he could face criminal liability, but his bigger concern is probably being held civilly liable.

The first indictments related to the riot have been issued, and sedition charges have not been filed against those individuals, including one who did enter the building. Mark Leffingwell does face a felony charge under the Federal Anti-Riot act for allegedly interfering with an officer during a civil disorder. He faces several other charges, including assault on law enforcement. The other individual is Lonnie Coffman, who was caught later in the day with weapons and a bunch of Molotov cocktails in his vehicle: he also faces felony charges. Dozens more have been arrested, and at least one law enforcement officer died, so many more charges are slated to come down, including homicide for anyone responsible for the officers death.

*UPDATE The FBI indicated this afternoon they are considering an array of charges, including possible sedition charges.

Challenges growing to use of Cell Phone location- “Geofencing” Warrants by Law Enforcement

Law enforcement is increasing its use of reverse-location warrants with companies like Google, known as “geofence” warrants. Instead of asking Google, or Verizon, or AT&T for the specific history of a person, these warrants ask for the identifying information of all the people in a certain area. For instance, a bank is robbed, and the authorities file a warrant on Google demanding that all of the Google Maps users with a certain radius of that bank be turned over to authorities. While the perpetrator may be included in that group, it could also potentially include the private data of dozens or even hundreds of innocent people. That’s where the biggest privacy concern arises.

The use of geofence warrants is growing, Google indicated that they were receiving 180 requests per week at the end of last year, and the numbers have been steadily increasing. The cases challenging these searches, generally most will target the lack of specificity and the invasion of privacy, have not yet resulted in many appellate decisions detailing when such warrants may be appropriate. One judge wrote in denying a warrant application, “The potential to use Google’s capabilities to identify a wrongdoer by identifying everyone (or nearly everyone) at the time and place of a crime may be tempting, but if the government can identify that wrongdoer only by sifting through the identities of unknown innocent persons … a federal court in the United States of America should not permit the intrusion.”

There is likely a path to make such reverse-location warrants valid, but it will likely encounter strict scrutiny to ensure limiting the request as narrowly as possible by size, time, and other factors to target the likely offenders, and not invade the privacy of law-abiding citizens. The concerns about unconstitutional intrusions were brought to light when NYC sought geofence data for people protesting and counter-protesting last year in the hunt for data about criminal rioters. The concern here is not only the invasion of privacy, but also the chilling effect on the 1st Amendment rights of lawful protestors. There are a lot of complex issues here, and it will likely be some time for the courts to develop guidance as to when geofence warrants are permissible, and when they are not.

Michael Cohen Recommitted to Federal Custody

Michael Cohen has been returned to prison today. According to reports, he went to sign paperwork converting his furlough to home confinement. According to statements attributed to his lawyer, the paperwork included a prohibition on several first amendment protected activities, such as speaking to media, engagement on social media, and publishing things like books. Cohen had been working on a book about his history with Donald Trump, which dates back years before Trump ran for president.

This is troubling for a couple reasons. First, it appears the prison is arbitrarily adding conditions to his sentence that were not ordered by the court. Second, those conditions seem pointedly targeted to silence him from speaking out, which is normally protected by the first amendment. While he gives up some freedom when convicted and confined or supervised, his first amendment rights do not generally go away. There may be exceptions, such as when his crime directly relates to his speech (such as if someone who had sent a threat might be restrained while on supervision,) but such conditions would not be expected in this case. The unique conditions, sprung on him without notice, suggest ulterior motives.

Warrant Issued for Church Pastor that Held Services in Violation of Stay-at-Home Order

A mega-church in Tampa defied a “safer-at-home” order in effect in Hillsborough County, Florida, and held a crowded service Sunday morning. Today, the pastor is facing charges for holding the service in violation of the order. The Sheriff and State Attorney held a press conference this afternoon to announce the charges, saying they had reached out to the church a couple of times, and the church refused to cancel the service. Pastor Rodney Howard-Browne will reportedly turn himself in on charges of unlawful assembly and violation of a public health emergency order.

Rodney Howard-Browne via Facebook

The church, and pastor Howard-Browne, will argue that the stay-at-home order violated their first amendment rights, but the equation is not that simple. The order was content neutral, meaning it did not target religious services, but all gatherings. For instance, a city cannot bad one party from putting up signs before an election, but they can ban all signs more than a month before the election: the state has more leeway on such content neutral rules. Usually, those are applied to free speech element of the First Amendment, but these rules also differ in that they deal with the free exercise of religion and the right of peaceable assembly. There’s not much precedent to use, as the last time we had such a public health emergency in this country was 100 years ago during the Spanish Flu epidemic. I think the State will be more interested in stopping the services going forward than they will be in prosecuting a pastor, but the legal question will be interesting to watch.

This twitter post links footage from the service Sunday:

No words for this depravity.

Right-wing pastor Rodney Howard-Browne is literally encouraging his congregants to shake hands.

pic.twitter.com/QEHGbM5yYa

— Read Let This Radicalize You (@JoshuaPHilll) March 16, 2020

UPDATE: The pastor did turn himself in on the charges. Seems like under the circumstance, it would have made more sense to give him a notice to appear. That is, if you’re so worried about social distancing, there is an alternative to processing him through a jail with hundreds of inmates. But, they had a point to make, and wanted to give him a mug shot.

Upcoming Case to Challenge Florida’s Mass Shooting Threat Law

Is it a crime to post a joke about a mass threat? Florida’s law makes it a crime to publish such a threat, including posts on social media, and does not require that there be an actual harmful intent. In a few weeks, a Florida appellate court will determine if the law will stand.

David Puy, and 18-year old in West Boca Raton, made a post on Snapchat that said, “On my way, school shooter!” He says he was actually on his way to meet friends for dinner, and meant it as a joke. There’s no indication he had nefarious plans, or even owned any guns, but posting the language that sounds like a threat made it a crime. The fact that he claims to be joking does not make a difference under Florida’s latest version of the threat law, updated after the shooting a Marjory Stoneman Douglas High School in Parkland, Florida.

Puy challenged the law unsuccessfully at the trial level, and the case is now on appeal. It’s’ believed to be the first to challenge the Constitutional validity of the new version of Florida law. The issue is whether or not his words, which do not meet the historical definition of a true threat, are protected by the First Amendment. The appellate court is scheduled to hear oral arguments March 10, though it will likely be several months before the ruling is released.