Free Speech

Woman Banned from "Making Any … Public Allegations Against" Ex, a Police Sergeant, "on Social Media"

We've filed a friend-of-the-court brief asking the Tennessee Supreme Court to review the case.

|The Volokh Conspiracy |

Monday, our invaluable local counsel Prof. David Hudson (Belmont University College of Law) filed an amicus brief written on behalf of the Electronic Frontier Foundation by UCLA Amicus Brief Clinic students Megan McDowell, Emily Rehm, and Brenna Scully and me. I thought our readers would find the issue interesting (I had blogged about the case several months ago), so I'm passing it along here—we are asking the Tennessee Supreme Court to review the case. (There's also an important dispute here about mootness, but the petitioner's lawyer, Daniel A. Horwitz, is handling that.)

Introduction and Summary of Argument

Pamela Stark was held in contempt for violating a broad and unconstitutional prior restraint that prohibited her from "making any … public allegations against … Joe Stark, on social media (on any platform)." R. at 80, ¶ 3. Based on this injunction, the court ordered Pamela Stark to delete her Facebook post that criticized the Memphis Police Department for its alleged mishandling of the investigation into Joe Stark, a police sergeant (and thus a public official) who had allegedly committed a crime against Pamela Stark.

This prior restraint violated Pamela Stark's First Amendment rights. Some courts have held that an injunction against speech may become permissible after a final judgment that the enjoined speech is unprotected by the First Amendment (for instance, is a libel or a true threat of violence). But no such determination was made about Pamela Stark's Facebook post.

Nor can the injunction be justified under Tenn. Code Ann. § 36-4-106(d)(3), even if this Court were to view that statute as constitutional. Under the statute, Pamela Stark may not make any statements that "harass[], threaten[], assault[] or abus[e]" Joe Stark, and she may not "mak[e] disparaging remarks about" him to his employer. But the trial court's injunction prohibits Pamela Stark from making any allegations about Joe Stark to anyone—including the media, her friends, and the public generally—and not just to his employer. It also prohibits speech that is not harassment: speech that does not constitute "communicat[ions] with" Joe Stark "with the intent [to] annoy[], offend[], alarm[], or frighten[]" him, as defined by Tennessee's harassment statute. Tenn. Code Ann. § 39-17-308(a)(2). This injunction, then, is an impermissible application of § 36-4-106(d)(3).

Divorces are regrettably common, and § 36-4-106(d)(3) automatically mandates an injunction in every divorce case. Other litigants are likely to seek similarly broad injunctions to silence their spouses, especially if the decision below is left in place and becomes well known among the family-law bar. And as this case illustrates, lower courts may be tempted to agree with such petitioners and restrict even more speech than the statute describes. This Court should thus grant review to provide guidance on when divorcing spouses' otherwise constitutionally protected speech can be restricted, and when it remains protected.

Argument

[I.] The injunction is an unconstitutional prior restraint on Pamela Stark's protected speech.

[A.] Prior restraints may not enjoin speech that is protected by the First Amendment.

"Temporary restraining orders and permanent injunctions—i.e., court orders that actually forbid speech activities—are classic examples of prior restraints." Alexander v. United States, 509 U.S. 544, 550 (1993). "The special vice of a prior restraint is that communication will be suppressed … before an adequate determination that it is unprotected by the First Amendment." Pittsburgh Press Co. v. Pittsburgh Comm. on Human Relations, 413 U.S. 376, 390 (1973). For that reason, injunctions against speech have been held unconstitutional when they restrict speech that the court has not found to be unprotected. See Vance v. Universal Amusement Co., 445 U.S. 308, 316-17 (1980); Org. for Better Austin v. Keefe, 402 U.S. 415, 417-19 (1971); cf. Pittsburgh Press, 413 U.S. at 390. And of course the First Amendment fully protects speech on social media. See, e.g., Packingham v. N.C., 137 S. Ct. 1730, 1735 (2017).

Thus, even the courts that allow narrowly crafted permanent injunctions against libel allow them only against speech that has been deemed libelous in a decision on the merits. Thus, such injunctions cover only defamatory "speech that has been determined to be false by a fact-finder," Loden v. Schmidt, No. M2014-01284-COA-R3-CV, 2015 WL 1881240 at *8 (Tenn. Ct. App. 2015), enjoined only "after a determination that the speech is, in fact, false." In re Conservatorship of Turner, No. M2013-01665-COA-R3-CV, 2014 WL 1901115 at *20 (Tenn. Ct. App. 2014). "[A] narrow and limited injunction" might in some situations restrict speech "which ha[s] been found … to be false and libelous." Lothschuetz v. Carpenter, 898 F.2d 1200, 1208, 1209 (6th Cir. 1990) (Wellford, J., concurring in part and dissenting in part); see id. at 1209 (Hull, J., concurring in part and dissenting in part) (concurring with Judge Wellford "[o]n the issue of the injunction").

Indeed, in Hill v. Petrotech Resources Corp., the Kentucky Supreme Court expressly reversed a pretrial injunction against libel as an unconstitutional prior restraint, 325 S.W.3d 302, 306 (Ky. 2010), holding that "defamatory speech may be enjoined only after the trial court's final determination … that the speech at issue is, in fact, false"—only then "could the speech be ascertained to be constitutionally unprotected, and therefore subject to injunction against future repetition." Id. at 309, 311. In so holding, the court acknowledged that "the rule may temporarily delay relief for those ultimately found to be innocent victims of slander and libel." Id. at 311. But because the rule "prevents the unwarranted suppression of speech of those who are ultimately shown to have committed no defamation," the rule is essential to "protect[] important constitutional values." Id.

Other state appellate courts take the same view. Thus, in Hartman v. PIP-Group, the Georgia Court of Appeals dissolved an order that "forb[ade the speaker] from making future statements" and "requir[ed the speaker] to remove his past speech from certain websites"; the order was "an impermissible prior restraint" because "a factfinder has not decided whether [the] statements are false or defamatory." 825 S.E.2d 601, 606 (Ga. Ct. App. 2019). "We have found no Georgia case upholding an interlocutory injunction prohibiting speech. Our Supreme Court has noted that although 'it has never been held that all injunctions against publication are impermissible,' such an injunction has been upheld only when it 'was entered subsequent to a verdict in which a jury found that statements made by [the defendant] were false and defamatory.'" Id. (citing High Country Fashions v. Marlenna Fashions, 357 S.E.2d 576, 577 (Ga. 1987)). And in O'Brien v. University Community Tenants Union, the Ohio Supreme Court held that an injunction against libel was constitutional only "[o]nce speech has judicially been found libelous": "The judicial determination that specific speech is defamatory must be made prior to any restraint." 327 N.E.2d 753, 755 (Ohio 1975).

And these cases actually mark the less speech-protective approach to the issue of injunctions as relief in defamation cases. For example, the Texas Supreme Court has held that even a full and final determination that a statement was defamatory cannot justify an injunction against future publication, though it may justify an order requiring the removal of that specific statement from a website on which it had already been posted. Kinney v. Barnes, 443 S.W.3d 87, 98 (Tex. 2014).

Here, the lower court did not even meet the lower threshold set forth by the Court of Appeals cases and the Kentucky, Georgia, and Ohio cases. The lower court did not determine that Pamela Stark's Facebook post was false and defamatory and therefore constitutionally unprotected.

Indeed, there is no reason to think that it was. Disparaging speech is constitutionally protected, unless it is found to be defamatory. And that standard may be even higher for injunctive relief than for damages. In Organization for a Better Austin v. Keefe, 402 U.S. 415 (1971), the U.S. Supreme Court dissolved an injunction against distributing leaflets that criticized a local small businessman. Id. at 417-19. The Keefe Court rejected the argument that a private citizen was entitled to "be free from public criticism of his business practices." Id. at 419. And the Court reasoned that the distribution of leaflets could not be enjoined even if it were viewed as "an invasion of privacy," because the speech was made to the public rather than being specifically sent to the businessman "into his own household." Id. at 419-20. (Whether or not the speech might lead to a damages award for invasion of privacy would be a different question.) Like the businessman in Keefe, Joe Stark may not get an injunction suppressing criticism simply on the grounds that the criticism may harm his professional reputation.

Nor was Pamela Stark's post constitutionally unprotected on the theory that it was "harass[ing]." "'[T]here is no categorical "harassment exception" to the First Amendment's free speech clause.'" State v. Burkert, 174 A.3d 987, 1000 (N.J. 2017) (quoting Saxe v. State Coll. Area Sch. Dist., 240 F.3d 200, 204 (3d Cir. 2001) (Alito, J.)); Rodriguez v. Maricopa Cty. Cmty. Coll. Dist., 605 F.3d 703, 708 (9th Cir. 2010) (likewise).

But beyond that, Pamela Stark's speech was not found to be harassment, and indeed would not be harassment under Tennessee law, which is limited to situations where the speaker "communicate[s] with another person … with the intent to annoy[], offend[], alarm[], or frighten[] the recipient," and the communication in fact accomplishes these intentions. Tenn. Code Ann. § 39-17-308(a)(2). Like the speakers in Keefe, Pamela did not "communicate with" Joe: she did not send her post to him, tag him in the post, or otherwise direct him to read it. Instead, she spoke to the public using her social media account.

The Georgia Supreme Court's decision in Chan v. Ellis, 770 S.E.2d 851 (Ga. 2015), is instructive on this point. In Chan, as in this case, a trial court issued a broad injunction restricting Chan from speaking about Ellis, based on a statute that barred people from "contact[ing] another person … for the purpose of harassing and intimidating the other person," with "contact[ing]" defined as "communicat[ing] with another person." Id. at 853. But such a harassment ban, the Georgia Supreme Court held, only extended to speech "directed to that person" and did not purport to forbid speech "about a particular person." Id. at 854 (emphasis in original). Likewise, here Pamela Stark's public speech about Joe Stark (said in the course of speaking about the police department) did not constitute "communicat[ing] with" him.

[B.] Pamela Stark's speech, which criticizes the government, is protected speech.

"Criticism of government is at the very center of the constitutionally protected area of free discussion. Criticism of those responsible for government operations must be free, lest criticism of government itself be penalized." Rosenblatt v. Baer, 383 U.S. 75, 85 (1966). Criticism of the government often involves criticism of a person, and it is protected even when it "include[s] vehement, caustic, and sometimes unpleasantly sharp attacks on government and public officials." New York Times Co. v. Sullivan, 376 U.S. 254, 270 (1964). Even speech about private figures is still constitutionally protected, of course, and liability for false and defamatory statements about them is nevertheless subject to considerable First Amendment restraints, see, e.g., Gertz v. Robert Welch, Inc., 418 U.S. 323, 347-50 (1974); but the matter is especially clear for speech about public figures on matters of public concern.

Joe Stark is a "public official" because, as a police officer, he holds "a position of employment that carries with it duties and responsibilities affecting the lives, liberty, money or property of a citizen or that may enhance or disrupt his enjoyment of life, his peace and tranquility, or that of his family." Press, Inc. v. Verran, 569 S.W.2d 435, 437, 441, 443 (Tenn. 1978) (so holding as to "a junior social worker," who "had sufficient power to remove or cause their children to be taken from [parents'] custody and placed in a foster home"); see also Murray v. Lineberry, 69 S.W.3d 560, 563 (Tenn. Ct. App. 2001) (concluding that "any law enforcement officer" is "a public official"). And "[t]he commission of crime … [is] without question [an] event[] of legitimate concern to the public," Cox Broad. Corp. v. Cohn, 420 U.S. 469, 492 (1975), as is the subsequent police investigation of the crime, see Connick v. Myers, 461 U.S. 138, 148 (1983).

Pamela Stark's Facebook post was quintessentially protected speech. She explained that she was "a recent victim of domestic violence at the hands of a Memphis Police Officer." R. at 41. She criticized the Memphis Police Department for "investigat[ing] a case where there is potential wrong doing and/or legal consequences for one of their own"—Joe Stark. Id. And she questioned the Memphis Police Department's integrity: "Who do you turn to when those [s]worn to serve and protect and enforce the law, don't." Id. Contrary to the trial court's view, her "references to [her] husband, about [her] husband, about [her] situation" did not render her speech unprotected or "off limits." TE at 27.

Pamela Stark has a constitutional right to criticize the government, and to criticize her husband, especially since he was a government employee with important duties and powers. She does not lose that right merely because the government is also her husband's employer.

[C.] Unjustified speech restrictions violate the First Amendment rights of Pamela Stark's potential readers as well as of Pamela Stark herself.

An overbroad injunction against speech can "harm nonparties to the litigation because enjoining speech harms listeners as well as speakers." McCarthy v. Fuller, 810 F.3d 456, 461 (7th Cir. 2015). "This right to receive information and ideas is a 'corollary' of the right to speak that triggers the First Amendment interests of not only speakers, but also audiences."  David L. Hudson, Jr., First Amendment Right to Receive Information and Ideas Justifies Citizens' Videotaping of Police, 10 U. St. Thomas J.L. & Pub. Pol'y 89, 89 (2016) (citation omitted). The First Amendment "embraces the right to distribute literature, and necessarily protects the right to receive it." Martin v. City of Struthers, 319 U.S. 141, 143 (1943).

Domestic violence is a serious problem. So is police underenforcement of the laws against domestic violence. The public has a right to hear whether a police officer—someone sworn to uphold the law—has been accused of such violence, and whether his department has been accused of covering it up. Ordering the removal of such speech, without any prior finding on the merits that they are libelous, violates prospective readers' rights as well as the speaker's rights.

[II.] Even if this Court believes that § 36-4-106(d)(3) is constitutional, the injunction in this case prohibits more speech than is authorized by the statute.

This Court need not decide in this case whether § 36-4-106(d)(3) is constitutional, because the injunction goes beyond even that statute. Section 36-4-106(d)(3) calls for "[a]n injunction restraining both parties [in a divorce] from harassing, threatening, assaulting or abusing the other and from making disparaging remarks about the other to … either party's employer." Tenn. Code Ann. § 36-4-106(d)(3) (emphasis added). Much speech about an ex-spouse could indirectly damage the ex-spouse's employment prospects (especially if the speech consists of accurate allegations of misconduct); but the statute deliberately did not purport to ban speech to friends or the media or the public at large. The injunction in this case, on the other hand, does impose the very sort of broad ban that the statute declines to: it forbids Pamela Stark from communicating to anyone on social media "any … public allegations against … Joe Stark … which may affect [Mr. Stark's] reputation or employment," R. at 80, ¶ 3.

In New Rivieria Arts Theatre v. State ex rel. Davis, this Court dissolved an injunction issued under a statute because it was "an unconstitutional application of the statute." 412 S.W.2d 890, 894 (Tenn. 1967). An adult movie theater had been enjoined from showing "films and 'Coming Attractions' or 'Trailers' of the sort, kind or type which may be classified by the court as 'obscene material.'" Id. at 892. But the relevant statute allowed the state courts only "to enjoin the sale or distribution of obscene material." Id. at 893. Because the injunction applied to material that no court had yet found to be obscene, and thus was not included in the category of speech to be enjoined under the statute, the injunction was an incorrect "construction of the statute." Id. at 895. Similarly here, the injunction forbids speech that no court has found to be covered by the statute, including speech that does not fall within any First Amendment exception.

[III.] This Court should grant review to provide guidance for future divorce cases, in which similar injunctions will likely be issued.

Injunctions issued under Tennessee Code Annotated § 36-4-16(d) "shall be in effect against both parties" "[u]pon the filing of a petition for divorce or legal separation." More than twenty thousand couples filed for divorce in Tennessee in 2018, and all of them were supposed to be subjected to the statute's injunction on speech. The statute already predisposes judges and litigants to turn to injunctive remedies in divorce disputes. If thousands of divorcing litigants can rely on the precedent set in this case—enjoining public allegations that a police sergeant committed a crime and that the police department failed to investigate it properly—those litigants may likewise seek to enjoin other types of protected speech.

Some such injunctions would similarly suppress speech about police officers and police departments. Others might apply even to speech about higher-placed government officials. And still more will cover less political, but still fully protected speech, such as a divorcing wife explaining to her friends on social media why she left her husband or that she is depressed because her husband mistreated her. People should be free to tell the story of their lives to their friends, even during family-law disputes. But if the decision below remains in place, such constitutionally protected speech will also likely end up being enjoined.

Because lower courts may issue a variety of injunctions that restrict speech protected by the First Amendment, this Court should grant review to "secure uniformity of decision," "secure settlement of important questions of law," and "secure settlement of questions of public interest." Tenn. R. App. P. 11(a).

Conclusion

This Court should review this case because the injunction is an unconstitutional prior restraint. It enjoins speech that has not been determined to be unprotected by the First Amendment, and it goes far beyond the statute by prohibiting any public allegation made on social media. Without this Court's guidance on the proper extent of such injunctions, lower courts will continue to issue them, even when they violate divorcing Tennesseans' First Amendment rights.

 

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  1. Once again—because this happens again and again—it is worth noting that Professor Volokh’s post refers repeatedly to, “speech,” when what he is talking about is publication. However customary and harmless it previously had become to conflate those two quite different modes of expression, the internet has changed that kind of conflation into a source of confusion and trouble.

    Prior to the internet, Pamela Stark’s remarks—whether well founded or not in this case I do not judge—would have had little or no chance of finding an outlet for publication, let alone worldwide publication at no cost. Private editing would have judged any such would-be publication uninteresting, expensive to edit, expensive to print or broadcast, and potentially legally risky.

    Because of those largely practical barriers, neither custom nor the law ever took up the question of whether pure animus between two private parties was worthy of publication. The issue of the public status and acceptability of such publications rarely came up because private editing almost always prevented such publications. Now, under changed circumstances, Professor Volokh advocates for them, but how thoughtful is his advocacy?

    Because of the internet, such cases have become newly commonplace, and continue to increase. For all his legal acumen, Professor Volokh seems haphazard in his approach, apparently accepting that this novel kind of publication should be governed uncritically by the laws of publication as they existed before the internet, when such publications almost never occurred.

    I would like to hear from Professor Volokh any comments he might have on these general questions: Does it serve society’s interest, and especially the interest of maintaining the public’s support and respect for speech freedom, if publication of private animus between non-public figures is broadly customary, and available without practical constraint? If the answer to that question is, yes, then please answer how far a maliciously motivated (with “malicious” in its common sense), judgment-proof, would-be publisher should be permitted to go in using the internet to damage the life and reputation of a non-public target? Are fraudulent claims, fake exhibits, malicious lies, false allegations of criminal conduct, all okay? If not, what can prevent them before they do their damage? If they cannot be stopped, what are the implications for speech freedom, and the public’s critically necessary support for it?

    1. Pure animus between private parties? She says she was the victim of a crime and that the police didn’t investigate it because her ex was a cop.

      1. Why doesn’t the principle of _NY Times v Sullivan_ apply here?

      2. Right, TwelveInch, and if two things were true, her complaint would not be pure animus—she must have been the victim of a crime in fact, and the police must not have investigated because her ex was a cop—both of which I am not in a position to evaluate. Which is why I said, “whether well founded or not in this case I do not judge.”

        Do you have anything to say about the questions I asked of Professor Volokh?

    2. I can only assume that this commenter either did not read or did not understand the post.

      Defamation and libel are and remain offenses. Volokh here stands up against prior restraints on speech, not the idea of allowing lies to be spread maliciously without any recourse as protected speech.

      But you have to prove in a court of law that someone is lying before you can stop them from doing so. You can’t just gag anyone you allege of lying. Your doing so would be evil, and a government that assisted in doing so would be tyrannical.

      1. You can’t just gag anyone you allege of lying. Your doing so would be evil, and a government that assisted in doing so would be tyrannical.

        If I’m not mistaken, in the early days of our Republic, there were serious concern about giving our courts equity powers for this very reason.

      2. Defamation and libel are and remain offenses.

        Prester John, sure, on the recently-modified books. As a practical matter, on the internet, the law of defamation has been gutted.

        Leaving criminal libel aside, the only thing which ever made libel law efficacious was the ability to sue publishers along with their contributors. Many publishers are not judgment-proof—especially not the influential publishers, which are the ones in a position to do the most damage.

        That fact was important for two reasons. First, because the civil law of libel gave them skin in the game, legacy publishers customarily guarded the truth of their potentially defamatory publications with private editing. I already covered that, but you may not have understood what I was getting at. Second, because it was very difficult for an impecunious liar to commit libel without the assistance of a better-heeled publisher, legal practice of joint liability tended to assure a practical possibility of legal recovery for damages. So before the internet, the protection was two-fold: far less chance of libel in the first place, and far better chance of recovery if libel occurred.

        What I left unsaid, because I thought a legally-interested audience would not need it mentioned, is that something called Section 230 of the Communications Decency Act overturned that long-used protection for truth in publishing. Instead, Section 230 absolved internet publishers from liability for their contributors’ defamations. Because of that, no one any longer enjoys useful, practical protection against being defamed worldwide. When a libel lawyer judges the author be an unlikely financial target, or if the author—hiding behind pseudonyms and technical anonymizers—cannot be found, there will be no legal remedy. That changed the ballgame on defamation law, effectively gutting it on the internet, while leaving it in full force to be used against ink-on-paper publishers.

        If you did not know that, now you do. If you did know it, then you are pretending behind a mask of empty formalism.

        Also, you have not addressed at all the point of my comment. Do you actually suppose that stopping the publication of a ruinous lie by the practice of private editing is more evil than letting it be published without reading it, and letting the damage be done before there is any chance to intervene? Letting the lies go unread to a worldwide audience is the new status quo. It was not a feature of legacy publishing. It seems to me that a transition that consequential at least deserves discussion. Nobody who has responded wants that discussion, apparently. So, what do you say to the questions I put to Professor Volokh?

        1. The “publisher” here is the ex-wife. She can be sued for damages by the cop. After a full trial, he can even get a properly drafted injunction consistent with 1A principles.

          Section 230 is the judgment of Congress that info spread via the internet is worth any cost caused by libels in comments/socisl media.

          1. I will defend Stephen to this extent- Section 230 wasn’t exactly a considered judgment of Congress (they were more concerned with other parts of that statute) and there’s a legitimate argument that perhaps a DMCA like regime where publishers can be required to take down obviously tortious content might be an improvement.

            1. “DMCA like regime where publishers can be required to take down obviously tortious content might be an improvement.”

              Sure, provided “obviously tortious content” is limited to only content that has been judged tortious on the merits in a competent court of law.

        2. What I left unsaid, because I thought a legally-interested audience would not need it mentioned, is that something called Section 230 of the Communications Decency Act overturned that long-used protection for truth in publishing. Instead, Section 230 absolved internet publishers from liability for their contributors’ defamations.

          You have been told repeatedly that this is not true.

    3. Once again—because this happens again and again—it is worth noting that Professor Volokh’s post refers repeatedly to, “speech,” when what he is talking about is publication.

      Stephen, you are a dissenter from American constitutional law. You aren’t the only one. Heck, you aren’t even the only one in these comments threads.

      In these threads we have people who think that settled precedents from 80 years ago should be overturned and that anyone who relies on such precedents is an unprincipled hack who doesn’t care about what the Constitution really “means”.

      But nonetheless, what ticks me off about dissenters is not that they exist, but that they don’t recognize they are dissenters.

      This is a legal blog. It is a conversation among a bunch of people within the legal system- lawyers and law professors- about what the law is. Yes, it also discusses, to some extent, what people think the law should be. But when people are being honest, they separate them.

      And it’s important to separate them. You see, what the law is, is really important. A person who makes your arguments, based on your beliefs, in a court of law, Stephen, can be disbarred or subjected to Rule 11 sanctions and forced to pay hundreds of thousands of dollars of legal fees for wasting the time of the Court and your adversaries. Even if that doesn’t happen, the Court has every right to simply ignore every word you type.

      That’s what it means to say something “isn’t the law”. The fact that you think the Constitution actually means that is irrelevant. If you can’t go into court and advocate it, it isn’t law, no matter what you think. Because our law is decided by our court system, which is empowered by Article III to decide cases and controversies. Stephen Lathrop, like Brett Bellmore, is not.

      So it really doesn’t matter in any real sense that you think there’s a difference between speech and publication. It only matters what Article III judges say. And they say you are full of shit.

      1. Very well said. Thank you.

      2. What if we repeal section 230 of the Communications Decency Act though?

        1. There are legitimate arguments about narrowing it.

          But I don’t see what relevance that has to Prof. Volokh’s legal brief.

          1. Perhaps you should ask Stephen Lathrop, since he seems to turn every discussion about free speech (including this one) towards this particular hobbyhorse of his.

      3. This is a legal blog. It is a conversation among a bunch of people within the legal system- lawyers and law professors- about what the law is. Yes, it also discusses, to some extent, what people think the law should be. But when people are being honest, they separate them.

        Well, now. I have to say this feels a touch sanctimonius coming from someone who just yesterday was repeatedly called out for making up — and steadfastly refused to acknowledge they were making up — their own Alice in Wonderland definition of “content-neutral.”

        1. You didn’t demonstrate that. You just claimed it.

          Claiming something is wrong without an argument isn’t “calling someone out”.

          1. Claiming something is wrong without an argument

            Nice try. In the real world, that burden would first fall to the person making the facially preposterous statement (e.g., that the sun rises in the west, or that a regulation that explicitly discriminates based on the substance of speech is somehow “content neutral”).

            Seeing you’re a 25+ year, mainly P-side lawyer in this field, my guess would be you’ve dreamed up some sort of too-clever argument to try to wiggle around something you know good and well is a bedrock principle of 1A law. So if you want to share your theory and how you think you can get there, have at it. But I’m not going to play fetch-me-a-case on black-letter law in the meantime.

      4. Dilan, legal positivism aside, what the hell did I say to give you a foundation for accusing me of ignorant legal interpretation? Didn’t I say, or at least clearly imply, that the facts have changed, which maybe means we ought to be thinking about changing the law?

        So it really doesn’t matter in any real sense that you think there is a difference between speech and publication. It only matters what Article III judges say. And they say you are full of shit.

        I don’t think there are all that many lawyers with a specialty in defamation law. Perhaps you do not know any. When I was a small newspaper publisher, I consulted from time-to-time with a lawyer who did practice that specialty, and who had burnished that credential with a victory in a defamation case before SCOTUS.

        It was from him that I learned that whatever the laws may say, there is a notable practical difference between speech and publishing, with a consequent difference in the way Article III judges treat cases of both types in court.

        That was a long time ago, but I still remember enough to outline those differences for you, but you would not credit what I would say. Why don’t you go find yourself a libel expert and ask for yourself?

        Putting the law aside, if you suppose there is no moral difference necessary to recognize when choosing a standard of care for publishing, vs. a standard of care for speech, then I would not take your advice on much of anything.

        1. I’ve probably filed 100 defamation suits and have also defended several, Stephen.

          There is no First Amendment distinction between speech and publishing. Publishers are speaking.

          1. And to answer your last question, a takedown procedure might be a plausible amendment to Section 230. But a lot of what 230 protects, has to be protected. It’s just impossible for publishers of user generated content to take on the burdens you are suggesting.

      5. I didn’t think I would be defending Stephen Lathrop, but then I saw this:

        “If you can’t go into court and advocate it, it isn’t law, no matter what you think.”

        This is pure Holmesian atheistic legal positivism.

        For a long time after 1896, you couldn’t go into court and advocate the proposition that the constitution is color-blind. Even today the judge might roll her eyes at you.

        If that’s the position you want to defend, by all means do so, but bear in mind that before Holmes – and before that proto-Holmes, John Austin – there were people (such as the Founders) with a different view of the law, and there are people to day who still think like the Founders.

        The view of people like the Founders was that the law existed independently of what the judges felt about it – indeed, these naive Founders believed that the role of judges was to declare the law, not pull it out of their fundaments.

        Dismissing the Founders as ignorant hicks requires some evidence.

        1. Eddy:

          Thurgood Marshall didn’t get the law of equal protection changed by falsely claiming Plessy wasn’t the law. Rather, he undermined Plessy step by step by finding cases that could carve out exceptions and qualifications until little was left standing.

          In other words, he acted precisely as a positivist should.

          And he did that because for lawyers, positivism is reality. We have to win cases for and advise clients, so the actual law is kind of important.

          1. Why, then, did Austin and Holmes, in their day, have to push so hard against the current to get their idiot positivist ideas accepted?

            Then as now, lawyers had to win cases, and they had to call judges “Your Honor,” and flatter and stroke the judges, just like today.

            Why are Austin and Holmes recognized as supposed great thinkers who introduced bold new ideas into the world, if those ideas were already pre-existing and self evident?

          2. “Thurgood Marshall didn’t get the law of equal protection changed by falsely claiming Plessy wasn’t the law. Rather, he undermined Plessy step by step” etc.

            He persuaded the Supreme Court* that Plessy was wrong. It took some time to get the Court to admit it was wrong. But admit it they did.

            In other words, the Court admitted it had been wrong the first time, and what they previously said was law…wasn’t the law.

            The fact that Marshall proceeded in stages, didn’t raise his voice, referred to the judges as “Your Honor,” and ackowledged Plessy *existed* doesn’t mean he was admitting Plessy was the law.

            One law which hasn’t been repealed is the law of non-contradiction. If the Supreme Court says it was wrong in the past, that means the Court was wrong at least once – either when it made its initial decision or when it overruled the initial decision.

            *In practice he did. It wasn’t as neat and quick as it should have been.

            1. It didn’t take time for the court to admit error. It took time to bring cases that imposed a series of limitations to Plessy’s holding.

              1. I’m not sure how this advances the case for legal positivism.

                1. Positivism doesn’t mean the law never changes. Indeed, a robust form of iterative common law reasoning through caselaw is both a feature of positivism and mandated by the positivist charter of our government, the US Constitution.

                  The key point is that what “the law” is, is the state of the law as determined by our decisionmakers at any particular time.

                  A nice way of putting it is that the law is Catholic, not Protestant. A Catholic, to determine what God’s law is, looks to the authoritative pronouncements of Popes, the Vatican, and various authority figures within the institution, whose decisions are based on text, history, tradition, context, precedent, and policy. A Protestant reads the Bible and decides what it means with no context whatsoever.

                  Lawyers practice within that positivist system. Doesn’t mean that we can’t ever argue for a change in the law. But we have to do the work and lay the groundwork and set up the argument. We can’t simply read the Constituion and say “I think it means X”.

                  1. “Positivism doesn’t mean the law never changes.”

                    Goodness, that would be the last thing I’d attribute to positivism. We were just discussing how, from the positivist standpoint, the 14th amendment went from permitting racial segregation (so long as it was “equal”) to forbidding it. And positivists must describe Plessy v. Ferguson as “the law” until the Supreme Court sees fit to overrule it.

                    “We can’t simply read the Constitu[t]ion and say “I think it means X”.”

                    Again, the Founders – including in their ranks plenty of lawyers – were aware of the difference between everyday legal practice – where you call the judges “Your Honor” and pay homage to their prior pronouncements – and statesmanship, where you get to argue first principles to the people, including (see below) saying where the courts are wrong.

                    “the law is Catholic, not Protestant”

                    I know this is a metaphor, but *most* of the American revolutionaries were not just Protestants, they were what Burke (I think) called the Protestants of Protestantism – they thought England’s Protestant mainstream was too Catholic.

                    The doctrine of the Supreme Court as a kind of magisterium doesn’t have a very good origin story. First the Federalists, rejecting the Kentucky and Virginia resolutions, preached the idea that the meaning of the Constitution was for the courts to expound for the benefit of the plebs – and that the courts’ rulings meant the Sedition Act was constitutional. The Federalists lost, and Jefferson pardoned the victims of the Sedition Act, which he deemed unconstitutional despite what the courts said.

                    Then it was the turn of Jefferson’s party to preach judicial supremacy, after the Dred Scott decision. This was so they could portray the Republicans as lawless for daring to suggest that the Dred Scott decision wasn’t law. The Democrats lost that one, and the victorious Republicans didn’t wait for the Thirteenth and Fourteenth Amendments to piss all over Dred Scott – they proceeded to ignore it wherever they could. Even before the Late Unpleasantness, Republican judges in Wisconsin defied the U. S. Supreme Court over the Fugitive Slave Act.

      6. It’s a cold day in hell, but Dilan and I agree.

    4. “Prior to the internet, Pamela Stark’s remarks—whether well founded or not in this case I do not judge—would have had little or no chance of finding an outlet for publication, let alone worldwide publication at no cost. Private editing would have judged any such would-be publication uninteresting, expensive to edit, expensive to print or broadcast, and potentially legally risky. “

      You clearly don’t know what could have been done in the ’80’s with a mimeograph machine, or in the ’90’s with a photocopier. Throw in a staple gun and an hour or two at night, and you’d be surprised. Telephone poles are a grey area and you need to use card stock, but imagine every pole for a mile reading “Memphis Police Abuse Women” — in a font big enough to be read by passing motorists. And you’d be amazed at what can be done with 4″ x 6″ address labels….

      Even without going that far, there are always handbills — the NAACP used them, they were used in Colonial times — and while there was a cost involved, the expense and labor was beyond the resources of one so inclined to publish in this manner.

      While the Web makes it easier and cheaper (the internet has been around since 1969), someone whom I know used the other means quite effectively in an earlier age….

      1. Was NOT beyond the resources…. Grrrr….

      2. Dr. Ed, your examples amount to inefficient publishing, which may have been your point.

        One of my points is that if someone is going to libel me, I it as almost trivial if it is done on telephone poles, but potentially damaging nationwide if done in the NYT. I care little about the former, and quite a bit about the latter.

        Had your friend published his (what? libel?) in the NYT, I could surely find it today. Do you suppose that applies alike to whatever your friend actually did?

        The big internet publishers in fact command far larger audiences than any legacy publisher, including the NYT. What they publish will likewise prove historically durable, and geographically ubiquitous.

        Now, compare the damage inflicted even by your mimeograph publisher, or your telephone pole publisher, to the damage inflicted by actual speech, in whatever setting. Don’t you agree that by and large the former means—trivial though they are, compared to the NYT or the internet—are more potentially damaging than speech?

        If you doubt that, consider the potential size of the audience for each means, and also the likelihood that each kind of communication might leave a durable record, or extend to a broader geographic scope. Consider also which of those kinds of communications might persist during your entire life, and even after you die.

        When it comes to the potential for inflicting defamatory damage—or, for that matter, advancing public goods—speech and publishing are in different categories. No court would be doing its job if it failed to recognize that difference. Mostly, when they decide how to handle specific cases, courts have recognized that difference.

        1. Can you offer some illustrative cases that make the distinction you’re claiming?

          1. Noscitur a sociis, almost all of them.

            Compare the biggest libel judgments you can find (and the frequency of libel judgments), to the size of the biggest slander judgements, and their frequency. Or take the averages.

            Or compare the numbers of cases, libel vs. slander. Or compare the number of lawyers who will consider a libel case, vs, the number who would take a slander case.

            Or note how often court cases adjudicating libel are cited, vs. cases adjudicating slander. Or compare how often news reports reference libel cases, vs. how often they reference slander cases.

            Or compare the geographic reach implied by news references. How often do you read local news in San Francisco about a slander case which took place across the continent, more than 50 years ago? How often do you read in San Francisco about NYT v. Sullivan?

            Or, more recently, how often do you read, anywhere in the nation, about the Michael Mann libel suit? Ever see a slander case get that kind of attention? Do you suppose the difference is because Michael Mann has never been slandered?

            1. So what I’m finally learning, after reading SL’s constant repetition of this refrain, is that he either doesn’t understand, or understands and intentionally is trying to elide, the difference between damages and the substantive law.

              SL, doesn’t the fact that when a broader audience is reached, and therefore more damage from the falsehood is done, the monetary award being commensurately larger mean that the system is working as is?

              1. SL, doesn’t the fact that when a broader audience is reached, and therefore more damage from the falsehood is done, the monetary award being commensurately larger mean that the system is working as is?

                tkamenick, it might well mean that, if that were happening. In the days of legacy publishing, that is what generally did happen. One result was that almost everyone thought America’s implementation of press freedom was a national boon, and an ornament to civilization. Nobody thinks that now.

                Now, with internet publishing, your question I quoted above suggests facts which no longer exist.

                Read my comments on this thread, with an eye to noting the various issues I raised, and the questions I posed. Then read the replies I got, asking yourself which of the commenters have even attempted to address my specific points and challenges. You will see that all anyone wants to do is evade the questions—or attack me for asking questions they are disinclined even to address, let alone answer.

                I raised points and asked questions. I want a discussion on those points and questions. Nobody commenting here seems comfortable answering substantively. They prefer subject changes and personal attacks. Ask yourself why.

                1. One result was that almost everyone thought America’s implementation of press freedom was a national boon, and an ornament to civilization. Nobody thinks that now.

                  I’m sorry, but this is complete and utter bullshit. I think that our freedom of the press is “a national boon, and an ornament to civilization.” I am confident Prof. Volokh agreed with me. In fact, I strongly suspect that every other commenter on this post agrees with me.

                  I know you’re deeply unhappy with the fact that Americans enjoy the freedom to write things on the internet even if it makes some other people unhappy. But don’t delude yourself into thinking that you speak for anyone else in this country but a thankfully tiny and easily marginalized fringe.

            2. Since you’re the one who claimed that there are specific cases that support your point, I’m going to decline the invitation implicit in your first five paragraphs to try to find those cases myself.

              I have followed the Mann litigation moderately closely and have read most, if not all, of the order issued by the trial and appellate courts, though not particularly recently. I do not recall any of them finding the fact that the statements were written instead of spoken to be material. Perhaps you could point me more precisely to the point at which the distinction ended up mattering?

            3. “How often do you read in San Francisco about NYT v. Sullivan?

              _NY Times v. Sullivan_ involved a national issue, and pressure being places on Federal authorities to intervene. But if were Sgt Sullivan accused of beating up his ex-wife, I doubt that he’d much care if folks in far-away New York read about it. No — it’s his neighbors, the Mayor, and local voters he’s worried about reading it.

              Twenty years ago we were measuring internet traffic in “Libraries of Congress” — the entire text of the entire Library of Congress and multiples thereof. There is no way that any human being could ever read even a small fraction of the stuff on the Web. Personally, I think that the issue is that the LOCALS read what she wrote, or that there is fear they might.

              You and I don’t know who this cop is, and really don’t care. But the people in his community do….

        2. Why would

    5. Your distinction is completely unpersuasive. Especially as applied to criticism of a government official, but really, as applied to anyone.

      Deliberative democracy cannot work without the free exchange of ideas. Even before the First Amendment, the idea that “We the People” are the source of legitimate government authority implies that we must be able to speak freely, since our representatives and all government officials are our servants, not our masters.

      1. Thanks for the civics lesson David. But what distinction do you find unpersuasive?

        1. Your claim that a post published on the internet does not constitute speech.

          I am glad that you appreciated my civics lesson. I would have thought you would have understood such a basic point already, but apparently not. I hope this remedial civics lesson helps you understand why squelching speech undermines democracy.

          1. David, you mis-characterize my point, perhaps because I did not go enough into detail. My point is that published speech can and should be distinguished from speech which is not published. Thus, unpublished speech, in that context, defaults to vocal communication. Compared to published speech, vocal communication reaches only limited audiences, and delivers short-lived effects. With regard to defamation, the capacity for damage inherent in publishing is many times greater, much longer-lasting, and geographically far more extensive, than the capacity of vocal communication is.

            Noting the distinction in these debates is useful because most of the commenters here—despite the fact that they are publishing when they comment—tend to comment as if they thought otherwise. These commenters are published, mostly without gaining the experience of becoming a publisher. So many of them continue to think and write as if their published speech were ordinary vocal communication. Of course, that kind of heedlessness is typical across the internet generally.

            1. “So many of them continue to think and write as if their published speech were ordinary vocal communication. Of course, that kind of heedlessness is typical across the internet generally.”

              As explained at length by Dilan, a distinction that in most cases is rather irrelevant to the courts.

              1. As explained at length by Dilan, a distinction that in most cases is rather irrelevant to the courts.

                3ducerist, to the extent you are correct—the profusion of cases EV cites as mistaken suggests you are not all that correct—you are simply pointing to the focus of my concern.

                Publishing-without-editing is a revolutionary innovation. It has disrupted if not the legal canon on press freedom, at least the nation’s willingness to tolerate new kinds of fare that innovation has delivered. At the grass roots, people are responding unhappily.

                To redress that unhappiness, people turn first to the less-sophisticated legal minds who live closest to them. To try to correct the balance in accord with grass-roots demands, those local politicians (including elected judges) deliver, time and again, legally crude ordinances, policies, and decisions, which EV then crusades against using legally sophisticated objections, time and again.

                Make no mistake, cases of the type I refer to are not mere customary censoriousness, as I think EV and his supporters believe. These cases are a new thing, arising in response to a new perceived reality implicating the notion of publishing freedom.

                Prior to the internet, legal cases seeking to silence published animus between private parties were almost non-existent. Now, public unease which delivers such cases in profusion, threatens also to turn national opinion against press freedom itself. And EV, and Dilan, and maybe you, seem not to notice—apparently because you are all invested in legalistic notions akin to suggesting you can change what time it is by wrenching a sundial off its axis. Do you, like Dilan, mistakenly suppose the legal system to be the sun?

                In a sort-of democracy like the one Americans now operate, people generally, eventually, get the customs and laws they prefer. The laws of speech and press freedom, no less than any others, will bend to that rule. Is it really wise for custodians of the law to adopt as a principal defense that they can simply tell the people that what they want is against the law? Might it be more practical long-term to discover what people want, and then work to optimize pro-freedom idealism in that context—perhaps even by applying more-sophisticated legal insight to adjust the real problem at its source, instead of using that sophistication repeatedly to knock down manifestations of abiding unease?

                1. The point of protecting oral speech isn’t because it doesn’t matter much because it might soon be forgotten, in contrast to written speech. The point of protecting speech is precisely because it is so powerful that it can and has literally toppled governments.

                  People’s ability to speak freely on the Internet is critical to democracy. Especially about a government official.

                  One side effect that people worry about is speech sitting around, coming back to haunt people later. But, in reality, this only reveals something we already know. People are imperfect. Every person is guilty of saying something stupid.

    6. If wearing an armband is speech (and it is), then words, no matter what their venue, are definitely speech. Just because it is published does not mean it stops being speech.

      And plenty of angry publications involving public figures has been ‘published’ historically, especially yellow journalism. Editing didn’t stop any of that from seeing print.

      You seem to have a myopic view of publishing that only looks at what has can get published today. On the other hand, you seem to believe there continues to be excellent editing as occurred historically in papers with good reputations, and ignore the lack of editing that actually occurs today, nor the quality of editing in lesser publications historically.

    7. “Are fraudulent claims, fake exhibits, malicious lies, false allegations of criminal conduct, all okay? If not, what can prevent them before they do their damage?”

      Prior restraint on speech is what you’re asking here. I know there’s more legal/technical terms for it but without some serious reason or purpose it’s also generally not going to pass muster.

      It’s essentially making a claim that someone is lying about you, and on only ones’ affirmation that they’re lying (lacking proof, a trial, or even a hearing where the accused gets any rebuttal) the judge issues a restraint on the speech.

      It’s not how our system works. Nor should it.

      1. Prior restraint on speech is what you’re asking here . . . . It’s essentially making a claim that someone is lying about you, and on only ones’ affirmation that they’re lying (lacking proof, a trial, or even a hearing where the accused gets any rebuttal) the judge issues a restraint on the speech.

        3ducerist, no. That would be outrageous. And dangerous. I never mentioned a judge, or government legal process. You made that up, and wrote it down, after presuming it.

        You know what no one ever thought was outrageous, or dangerous, while it was the general rule? Private editing, in the context of a diverse press.

        You know what is outrageous and dangerous about the present publishing context? Private editing by publishing monopolists, who are heavily under pressure by government.

        The present system is an urgent national emergency, right now threatening to destabilize democracy. If that troubles legal positivists at all, I see no indication of it.

        1. 3ducerist, no. That would be outrageous. And dangerous. I never mentioned a judge, or government legal process. You made that up, and wrote it down, after presuming it.

          You are lying. You mentioned it repeatedly, above and in other discussions of the topic. For example, in the first post you made above, you said:

          Private editing would have judged any such would-be publication uninteresting, expensive to edit, expensive to print or broadcast, and potentially legally risky.

          apparently accepting that this novel kind of publication should be governed uncritically by the laws of publication as they existed before the internet, when such publications almost never occurred.

          If the answer to that question is, yes, then please answer how far a maliciously motivated (with “malicious” in its common sense), judgment-proof, would-be publisher should be permitted to go in using the internet to damage the life and reputation of a non-public target?

          In your next post, you repeated it:

          That fact was important for two reasons. First, because the civil law of libel gave them skin in the game, legacy publishers customarily guarded the truth of their potentially defamatory publications with private editing. I already covered that, but you may not have understood what I was getting at. Second, because it was very difficult for an impecunious liar to commit libel without the assistance of a better-heeled publisher, legal practice of joint liability tended to assure a practical possibility of legal recovery for damages. So before the internet, the protection was two-fold: far less chance of libel in the first place, and far better chance of recovery if libel occurred.

          Every single word of that is about judges and government legal process.

  2. Prof. Volokh presents himself as quite the champion of free expression — when he is not engaging in viewpoint-controlled censorship at his blog.

    1. Do you hold these petty sorts of grudges in your private capacity? It reflects poorly on your maturity.

      1. It’s not a grudge. I dislike partisan cherry-picking and hypocrisy. I also oppose the Conspiracy’s stated aim of making movement conservative thinking and positions more popular and attractive with a broader audience.

        Hall of Fame baseball announcers provide the score every couple of minutes, regardless of whether the score changes. I mention the issue solely when someone tries to score a point by raising the issue.

        Do you similarly fault the Conspirators’ grudge against the American liberal-libertarian mainstream?

        1. There’s a difference between government silencing speech and a private party limiting speech in a venue it owns.

          Also, that Prof Volokh actively engages in notable ‘censorship’ (it’s not actually censorship unless a government does it) would seem to require proof, as it is very much not in evidence in the comment section.

          1. Prof Volokh won’t allow some of The Rev’s choicest name-calling. It makes the world a better place.

        2. So you troll CNN, MSNBC, and Fox News as well?

          1. Meh, that was aimed at Rev, not Squirrel.

    2. What are you referring to?

      1. Some years ago ALK set up a sock puppet account and was asked to limit himself to one account.

        In addition, some of the bloggers here exercise a little discretion in deleting abusive posts. EV listed some examples recently.

        1. Thanks for that link, Absaroka, I hadn’t seen it the first time around.

        2. Thanks also. ALK is a disgrace to the Democratic party, and all it represents.

        3. EV: They seemed to me to be the sorts of substance-free personal insults that merited deletion.

          Well, that link was pretty revelatory, but maybe not in the way EV might have hoped. If the standard from the quote above is really being applied alike to everyone, I am baffled. Has anyone ever seen any post from Sevo that did not include substance-free personal insults?

          I think it must be that EV does not much attend to what the commenters say, but maybe, like most folks, is a bit more sensitive to remarks from opponents.

          1. If EV is trying to censor ALK, he is doing a very poor job of it, wouldn’t you say?

            Do you feel that any of the comments deleted – the ones by ALK, or the responses to ALK that were also were deleted – in any way contributed to a reasoned discussion of the issues?

          2. I have to say, there’s a few folks here who contribute mostly substance free personal insults. Rev is one of them who more often than not attacks the poster. There’s a few on the other side of the ‘aisle’ if you will as well.

            I tend to skim past their nonsense because it adds no fruit to the tree.

    3. “Prof. Volokh presents himself as quite the champion of free expression — when he is not engaging in viewpoint-controlled censorship at his blog.”

      There is a big difference between that and the state incarcerating you. A very big difference.

      Now I am a bit concerned about Big Tech censoring divergent views about the Wuhan Virus, that’s poor public policy and one of the places where what’s legal and what’s right diverge, but the initial post is about the state muzzling the criticism of a public official authorized to employ deadly force at his discretion.

      Remember that he *could* turn his badge in and become a private citizen — but hasn’t. Preventing her from criticizing him is a far cry from whatever dispute you may have with Prof. Volokh — who can’t legally shoot you….

    4. Well, it is a good thing that he isn’t the government then, isn’t it?

      And, by the way, here you are. Commenting year after year.

      So, I guess you must believe that the positives of this blog outweigh the private censorship you disagree with.

  3. The courts are impartial conduits of justice and in no way are “on the side” of the police or prosecutors.

    Riiiiiiiight.

  4. Robert S. Weiss, a rather slovenly Jackson, TN judge. He ought to be defrocked.

    https://dailymemphian.com/article/4239/Judge-Robert-Weiss-gets-slapped-with-public-reprimand

    He’s the guy in the black frock who has persecuted Pamela Stark and cuddled her husband.

  5. It is unfortunate that this sort of advocacy is even necessary. Although, since it is, I am glad that EV is doing it.

    It is as if some judges were not even familiar with the basics of the First Amendment. I really don’t understand why we still hear about cases like this.

    This is not a hard case.

    1. No it isn’t.

      And one reason why Prof. Volokh’s work here is important is demonstrated by some of the predictable idiocy upthread. Prof. Volokh actually cares about what the law is.

  6. Just don’t be a woman who gets sexually assaulted by a prominent Democrat. Even the #metoo people won’t help you.

    I think Pelosi just explained the double standard pretty well in a press conference:

    “There is also due process. And the fact that Joe Biden is Joe Biden.”

    Translation: Joe Biden is a Democrat. We use sexual assault as a political card which is only to be played against conservatives and republicans. Back off.

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