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VOLOKH CONSPIRACY

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California Prosecuting Man for Insulting Posts on Islamic Center's Facebook Page

The government's theory would equally criminalize insulting posts on a NRA page, or on a pro-Trump organization's page, or on a Communist Party page.

In September 2016, Mark Feigin posted five insulting comments on the Islamic Center of Southern California's Facebook page (before he was finally blocked by the ICSC from commenting):

  • "THE TERROR HIKE ... SOUNDS LIKE FUN" (written in response to the Center's "Sunset Hike" announcement).
  • "THE MORE MUSLIMS WE ALLOW INTO AMERICA THE MORE TERROR WE WILL SEE."
  • "PRACTICING ISLAM CAN SLOW OR EVEN REVERSE THE PROCESS OF HUMAN EVOLUTION."
  • "Islam is dangerous - fact: the more muslim savages we allow into america - the more terror we will see -this is a fact which is undeniable."
  • "Filthy muslim shit has no place in western civilization."

California is now prosecuting him for posting these comments, on the theory that they violate Cal. Penal Code § 653m(b):

Every person who, with intent to annoy or harass, makes repeated telephone calls or makes repeated contact by means of an electronic communication device ... to another person is ... guilty of a misdemeanor. Nothing in this subdivision shall apply to telephone calls or electronic contacts made in good faith or during the ordinary course and scope of business.

The posts, the California AG's office argues, were "were made with the specific intent to annoy and harass the members of the ICSC," because Feigin "was not trying to engage in any kind of political discussion but instead trying to vex members of the ICSC with his thoughts about their religion." The posts are criminal because they constitute "repeated harassment from those who wish to mock and disparage their religion," and, "[r]ather than attempt to engage in discussion or debate," are "cruel and pointedly aimed at dismissing an entire religion and those who practice it."

What could be more "intolerable" than for [the] ICSC Communications Director ... to check the ICSC's Facebook page and discover that someone has written "PRACTICING ISLAM CAN SLOW OR EVEN REVERSE THE PROCESS OF HUMAN EVOLUTION" as the Defendant in this case did .... Or how about ... "Filthy muslim shit has no place in western civilization." This is exactly the kind of repeated, annoying, and harassing electronic communication that PC 653m(b) is meant to deter. Protected speech? Political speech? Defendant's posts on the ICSC Facebook page are neither of those things.

And the government's argument makes clear that it's going after Feigin for the content -- indeed the viewpoint -- of his speech: "The mere content and nature of the posts establish that they are not made in 'good faith' as Defendant would suggest but are meant to annoy and harass." "Defendant is not seeking uriderstanding or guidance, instead he is posting in order to annoy and harass those who have beliefs with which he vehemently abhors." The Facebook's page public accessibility "does not translate into requiring ICSC or its members to sustain repeated harassment from those who wish to mock and disparage their religion." "Rather than attempt to engage in discussion or debate, Defendant's posts are cruel and pointedly aimed at dismissing an entire religion and those who practice it." Nor is the government's argument limited to vulgar epithets ("Filthy muslim shit"), though even those epithets are constitutionally protected when said outside the context of face-to-face "fighting words"; it applies just as much to the nonvulgar criticisms.

Of course, there's nothing in the government's logic that limits it to comments posted on the Islamic Center's page, or for that matter on the Catholic Church's page or the Westboro Baptist Church's page or the Church of Scientology's page. If the government is right, and the statute applies to posts on organizations' pages, then it would apply to any repeated harshly critical posts

  • on an NRA page "intended to annoy" NRA employees,
  • on a pro-Trump page "intended to annoy" its operators,
  • or on any other ideological organization's page.

The "during the ordinary course and scope of business" exception might exclude consumer complaints, but the government's theory is that this exception doesn't apply to this sort of criticism that is "cruel and pointedly aimed at dismissing an entire religion and those who practice it" -- logic that would apply equally to criticism of political as well as religious ideologies. Nor can the courts constitutionally conclude that harsh insults of the NRA are "in good faith" and similar harsh insults of Islam are not.

This can't possibly be consistent with the First Amendment; indeed, in U.S. v. Popa (D.C. Cir. 1999), the D.C. Circuit set aside a telephone harassment conviction of someone who left seven racist messages on the voicemail of then-U.S.-Attorney Eric Holder; and the court focused on the "political message" of the speech, and not on Holder's status as a government official. Given that insults targeted to a particular person, related to a political message, are thus constitutionally protected, so are more general insults aimed at an ideology and all its adherents, whether that ideology is Islam, Scientology, conservatism, gun rights, or anything else. Laws aimed at preventing unwanted repeated messages to particular private citizens shouldn't be applied to messages sent to ideological organizations (or to public officials). And this is especially so when it comes to annoying Facebook posts, which the organization can simply block.

Caleb Mason at Brown White & Osborn LLP -- which many of our readers may know as the firm at which Ken White (Popehat) is one of the partners -- has filed motions to dismiss the charges; I hope the court indeed promptly throws them out as unjustified under the statute, forbidden by the First Amendment, or both. But if the courts accept such charges, expect to see many more people, left, right, and otherwise, prosecuted for posting insulting messages on many groups' web pages.

(I should note that Feigin is also being charged with making a threatening phone call to the Islamic Center; but that is a separate count, based on separate conduct, and it's far from clear that Feigin was actually the person who made that call, as this CNN story [Scott Glover] describes. The Center employee who received the call claimed that it sounded like Feigin's voice, which he heard when making a call to test the theory that the caller was the same person who wrote the Facebook posts. But the employee also continues to claim that the call sounded like the voice of someone who had left a different message on the Center's voice-mail the day before -- and that person has been proved to be someone other than Feigin.

Nor do the police have any phone records linking the threatening call to Feigin: They waited seven months before trying to get the records, and by then Citrix, which operated the calling number as part of its GoToMeeting teleconferencing system, had purged its records. This is why this post focuses on the Facebook posts, which Feigin did make, and not on the separate threatening phone call charge.)

Editor's Note: We invite comments and request that they be civil and on-topic. We do not moderate or assume any responsibility for comments, which are owned by the readers who post them. Comments do not represent the views of Reason.com or Reason Foundation. We reserve the right to delete any comment for any reason at any time. Report abuses.

  • ReaderY||

    Professor Volokh,

    You acknowledge current law distinguishes between government officials and private citizens.

    If that's the correct distinction, why shouldn't private organizations (religious, ideological, or otherwise) be treated as private citizens rather than government officials? After all, speech to government carries the additional weight of the separate peaceable petition right, which speech to a private organization doesn't.

    And if that isn't the correct distinction, I think you'd be better off being more up-front, acknowledging the current state of the law and explaining why you think it's wrong, than simply taking its wrongness for granted.

    Why exactly should an "ideological organization" be treated differently from an individual. You never give a reason why. It just seems obvious to you. And that's a weakness.

  • NToJ||

    You can't really harass or annoy an ideological organization for the same reason you can't murder, assault, or batter them.

  • Elias Fakaname||

    Even if it's thick, sticky batter.

  • Quixote||

    Well, he certainly would have harassed them, had he published the comments under the name "Joel Osteen," or under the name of a member of the Islamic Center itself. In fact, that would have been a serious crime, even according to Eugene's own analysis of our nation's leading criminal "satire" case (see documentation at https://raphaelgolbtrial.wordpress.com/).

    Sure, maybe it would still be a mistake to prosecute him specifically under California's "harassment" statute, but if they tacked on a "criminal impersonation" statute to make it clear that the harassment was engaged in by using a form of falsity not protected by the First Amendment, then no problem at all. Heck, they could even toss out the harassment statute on appeal, and just stick with a retroactive "harm to reputation" interpretation of the "impersonation" statute.

    Note that it doesn't matter that Feigin was seeking to express opinions, to convey ideas: if he had used the name of another person to express himself, then he could prosecuted and jailed, under the (bogus, but necessary) legal pretext that he intended to damage a reputation.

  • Quixote||

    then he could be prosecuted (aargh, another typo)

  • JesseAz||

    Nothing says private organization than a public Facebook page. They opened up a public page for anyone to comment on. They can make the page private to members if they chose.

  • Rossami||

    As a legal matter, it's irrelevant because organizations have no independent privacy interest.* Individual members might have a privacy interest but they chose to organize themselves and to put themselves into the public sphere as an organizational entity.

    * Okay, technically organizations can have a privacy interest in things like secret recipes or business strategies - things that they actively own and work to keep secret. But that's not the kind of "privacy" that distinguishes a private citizen from a public official.

  • Eugene Volokh||

    Just to be clear: If you heard that Oklahoma was prosecuting someone for posting insulting comments on a local NRA chapter's Facebook page (assuming Oklahoma enacted a similar statute), you'd think that would be perfectly constitutional? I was assuming that people would quickly agree that this is unconstitutional, and was then arguing by analogy from that. But if you think such prosecutions are permissible, I'd love to hear your thinking on why that's so.

  • Rich Vail||

    I'm not a lawyer, but isn't this guys comments covered under the 1st Amendment?

  • Careless||

    That's EV's claim, yes

  • lakawak||

    Ummm..you mus have TERRIBLE reading comprehension if that is what you got from this. NOWHERE does it even remotely imply that they think it would be OK to prosecute someone for doing this to the NRA. Because in fact, people post this sort of thing to the NRA, pro-life sites, President Trump, etc. ALL THE TIME. And California (rightfully) doesn't arrest them.

  • Untermensch den 2||

    I presume you somehow didn't realize that you were responding to the author of the piece. Because accusing him of having terrible reading comprehension about his own piece is, well, interesting…

  • Ben of Houston||

    His comment was set as a reply to the original, not a reply to a prior comment. Reasonable mistake, as I don't generally check the names of the respondents.

  • swood1000||

    Every person who, with intent to annoy or harass, makes repeated telephone calls or makes repeated contact by means of an electronic communication device ... to another person is ... guilty of a misdemeanor. Nothing in this subdivision shall apply to telephone calls or electronic contacts made in good faith or during the ordinary course and scope of business.

    It would seem that this would also criminalize a poster on this blog who makes a comment that is simply an attempt to ridicule conservative posters, without including any substantive argument. For example, "Carry on clingers."

  • swood1000||

    I wonder if California allows a private attorney general to enforce this statute.

  • jonmarcus||

    What is a private attorney general? I thought attorneys general were government officers by definition, but I might well be mistaken.

  • swood1000||

    See wikipedia.org/wiki/Private_attorney_general

  • jonmarcus||

    Interesting, thanks for the info.

  • TwelveInchPianist||

    Don't forget the repeated posts about superstition and fairy tales, which are "repeated harassment from [he] who wish[es] to mock and disparage their religion," Arthur the thought criminal, I guess.

  • swood1000||

    Don't forget the repeated posts about superstition and fairy tales, which are "repeated harassment from [he] who wish[es] to mock and disparage their religion," Arthur the thought criminal, I guess.

    And from a man of the cloth, no less!

  • Rev. Arthur L. Kirkland||

    superstition

    noun

    1. a belief or notion, not based on reason or knowledge, in or of the ominous significance of a particular thing, circumstance, occurrence, proceeding, or the like.
    2. a system or collection of such beliefs.
    3. a custom or act based on such a belief.
    4. irrational fear of what is unknown or mysterious, especially in connection with religion.
    5. any blindly accepted belief or notion

    I just completed my opening statement.

    Choose reason. Every time. Especially over sacred ignorance and dogmatic intolerance.

    Happy New Year, everyone.

  • swood1000||

    Choose reason. Every time. Especially over sacred ignorance and dogmatic intolerance.

    But Your Grace, surely you see the danger that your remarks might also be addressed by the charges of the California authorities, in that you are a person

    "not trying to engage in any kind of political discussion but instead trying to vex members of the [Volokh Conspiracy] with his thoughts about their religion." The posts are criminal because they constitute "repeated harassment from those who wish to mock and disparage their religion," and, "[r]ather than attempt to engage in discussion or debate," are "cruel and pointedly aimed at dismissing an entire religion and those who practice it."

    and that Your Grace could therefore be guilty (forgive the impertinence) of a misdemeanor.

  • Rev. Arthur L. Kirkland||

    If I'm guilty of a misdemeanor, the Volokh Conspiracy and its wingnut fans are felons.

  • Mark22||

    You're probably just guilty of ignorance and pretense. Under that rational veneer is almost certainly a fully functioning human being in all its irrational and emotional glory, much as you try to deny it.

  • Mark22||

    Science has shown that successful human decision making is based primarily on subconscious processes, emotion, and heuristics. "Choosing reason every time" is therefore not a good prescription for good decision making

    The content of religious belief is often unscientific, irrational, and contradictory, but that doesn't make following such beliefs irrational. For example, acting as if a personal god observes and judges you can be rational even if such a personal god cannot rationally be said to exist.

    Your dogmatically intolerant rejection of religion isn't rational. Religious beliefs serve important psychological and social functions, and you cannot simply remove them without replacement. Some atheist ideologies (e.g., fascism, communism) have attempted to replace religious impulses with non-religious analogs, but they obviously did a poor job when you consider the results.

    To put it differently, given the limitations of the human brain, it's irrational to behave completely rationally.

  • Rev. Arthur L. Kirkland||

    I believe people are entitled to believe as they wish.

    People are not entitled to have supernatural claims treated with respect in reasoned debate among adults. Cloaking backwardness and bigotry in religion does nothing to improve backwardness and bigotry.

    Believing that fairy tales are true is substandard thinking among those older than 12 or so.
    By then, childhood indoctrination fades as an excuse.

    Choose reason. Be an adult. Or, at least, try.

  • Sarcastr0||

    Ohh, well played.

  • Sevo is my bitch||

    Kirkland should start paying rent, he has been free-loading your mind for too long

  • jonmarcus||

    @Professor Volokh, part of your analysis seems to turn on the point that it's easy to block Facebook messages. I'm no 1A scholar, but I believe a person can be banned from making harassing contact by phone, and prosecuted for disregarding such a ban.

    Would the First Amendment apply (i.e. would you still view the State's case as invalid) if a speaker attempted to circumvent Facebook blocks? (AFAIK, that's not what happened in this case. I'm posing a hypothetical, but one that doesn't seem dramatically removed from the actual case.)

  • JesseAz||

    Was this person ever issued a no harassment order? Your argument is predicated on an initial order to no longer harass. This case has no initial order but jumped to step 2.

  • Careless||

    No, he mentioned Facebook blocks, not court orders.

  • Mike d||

    I think it would depend on **how** he circumvent the FB block. If it involved "hacking" that probably would violate some laws. But if it was just exploiting a bug, or the Islamic org didn't use their blocking option properly, probably would be in the clear. If it involved making a fake account with a fake user, that would be gray area if FB tried to argue he was "impersonating" another person.

    As far as harassment goes, I think you need some sort of government issued restraining order and then violate that. It can't just be a private company ban. Also, I wonder if the feds / state can get him for "trespassing" if FB bans him and he comes back again.

  • ||

    It seems that this particular case could easily be dismissed simply on the basis of the statute's use of the phrase "another person". That would allow the court to conveniently dodge the bigger question.

    If 1A precedent has codified "harassment" as a criminal exception to 1A, then why couldn't a statute be drafted which replaces "another person" with "another entity"? It's not clear how harassment suddenly becomes not harassment when dealing with an organization. Just because an organization has the technological tools to mute such harassment does not transform it into non-harassment.

    I agree that this would end up potentially criminalizing a lot of online trolling. But I still can't rationally separate individual from group harassment. I don't see how you can have one without the other.

  • JesseAz||

    Who decides what harassment is and what political discourse is?

  • ||

    There's nothing unique about harassment vs. any other issue that requires a bright line between legal and illegal conduct. The fine tuning of the bright line always gets dumped on the courts. So why ask? The issue at hand is if harassment can extend to a group instead of being limited to an individual, not if harassment can exist at all.

  • Tionico||

    not to mention who determines the INTENT of the action alledged.
    That he wrote the described statements seems clear. His intent? That's a pretty high bar to clear, determing what is in the mind and heart of another individual.

  • geokstr||

    Not really.

    Lack of intent to break a law was easily discernible to a recent ex-FBI director who used said lack to decline to prosecute, even though that decision was above his pay grade and said law specifically said that said lack was not a valid excuse.

  • Noscitur a sociis||

    It seems that this particular case could easily be dismissed simply on the basis of the statute's use of the phrase "another person".

    How? It seems fairly obvious that Feigin knew his communications would be read by other people.

  • ||

    People is not Person. The statute's language infers a specific individual, not a group.

  • Hank Phillips||

    Hmmm. FDR's EO demanding all gold and shutting down all banks (none were open anyway) specified fines and imprisonment for natural persons and fines only for artificial persons (like Romney's cute little banks). I have no opinion or skin in this game, but it is amusing.

  • MikeR613||

    Waiting for the inevitable comment from the Reverend on how conservative states do this and more. Or will he be honest enough to criticize his own side for once?

  • ThanksForTheFish||

    Are you new here, are you still drinking Christmas cheer? Or just a bout of unrestrained optimism in the new year?

  • Rev. Arthur L. Kirkland||

    Stale-thinking, intolerant yahoos have rights, too.

  • geokstr||

    Rev, why are you disparaging the left like that? I thought they were on your side.

  • Rev. Arthur L. Kirkland||

    Happy New Year, geokstr!

    My wish for the new year is that America's electorate continues to improve, in part by becoming less rural, less white, less religious, less backward, and less bigoted. I not only expect my wish to come true, but also figure it will happen daily.

    What is your wish for the new year?

  • Mark22||

    What you are actually saying is:

    [Kirkland:] My wish for the new year is that America's electorate continues to improve, in part by becoming more violent, more racist, more bigoted, more backward, and less tolerant, just like me.
  • Arthur I Kirkland||

    Commie Kirkland with his racism again.

    "Less white" is demonstrably racist.

    "Less rural?" Why? Are you afraid the big bad grizzly bear might get you? You do realize that rural America actually feeds you in your urban ivory tower, right?

    "Less backward" "Less bigoted" would require your help, as you are the most backward and bigoted person to post on this board.

    You project a lot, commie puke.

  • Rev. Arthur L. Kirkland||

    "Less rural?" Why?

    I believe it is good that smart, ambitious young people depart our can't-keep-up backwaters after high school graduation for strong campuses and successful, attractive communities, where they can find education, reason, opportunity, success, and modernity. I also understand why these citizens do not and should not return to the backwaters.

    I recognize that this bright flight concentrates the unattractive attributes among the depleted human residue that remains in our rural and southern communities after the young, smart, ambitious residents leave, but who can fault a young person for pursuing improvement?

    Carry on, clingers.

    So far as your lousy educations, bigoted souls, shambling communities, and gullibility can carry you, anyway.

  • lakawak||

    Rev..you DO realize that your posts only make yourself look bad, right? This is why you are all alone and always will be.

  • Rev. Arthur L. Kirkland||

    Alone? The great arc of American improvement, and the majority of Americans, are with me, lakawak. My preferences -- reason, progress, tolerance, science, inclusivity, education -- have prevailed throughout my lifetime, and they are destined to prevail over the aspirations of conservatives for so far as the human eye can see forward.

    The best you guys can do is to attempt to delay progress temporarily.

  • Azathoth!!||

    But you do not prefer reason--your insipid, idiotic and highly irrational posts demonstrate this endlessly.

    You do not value progress--in fact, the ideas you think of as progressive are decades old, disproven ideas that you cling to despite their worthlessness.

    You are the very picture of intolerance--you mistake 'acceptance' for 'tolerance' and are completely intolerant of any who do not accept the exact same worldview as you.

    You worship anything that uses the term 'science' anywhere in it's description--a practice that is completely at odds with actual science.

    As noted above you exclude anyone that does not accept the exact same worldview as you, so inclusivity is something you clearly abhor.

    And you use the word 'education' when you mean 'indoctrination'.

    The world has had to fight it's way past the blood-soaked, barbaric, primitive horror you and yours call 'progress' and has managed to continue despite your best efforts.

    And it will leave you standing alone, railing at the injustice of not being allowed to control everything.

  • PersonFromPorlock||

    The real question is why the attorneys who brought this farrago to court haven't already been sanctioned, along with the judge who didn't immediately throw it out.

  • ThanksForTheFish||

    Being a prosecutor means never having to say you're sorry.

  • rudehost||

    Did you miss the part where they said this was California? I imagine if you beheaded someone there for cultural appropriation you would be more likely to get a book deal and professorship than a criminal charge.

  • Noscitur a sociis||

    Did you miss the part where they said this was California? I imagine if you beheaded someone there for cultural appropriation you would be more likely to get a book deal and professorship than a criminal charge.

    It might be more circumspect to hold off your complaints about the biased liberal activist judges until after the pending motion to dismiss is resolved.

  • rudehost||

    Since I am making somewhat tongue in cheek comment about probabilities rather than a statement of historical fact I think I can leave my comment out there. Assuming that is OK with you of course.

  • JordanW||

    A viewpoint expressed in the facebook posts, that Islam is a terrorists religion, is a viewpoint that is routinely, and civilly, argued by bill Maher, and I agree to certain aspects. Provocative ideas must be discussed, ideally without the intention to provoke.

  • lakawak||

    And yet people harass pro-life groups, or the aforementioned NRA sites all the time. And nothing is done. They are not trying to provoke a discussion.

  • Rev. Arthur L. Kirkland||

    Quit whining.

  • JordanW||

    As an organized religion, Islam is woefully negligent in providing a, religious response to Islamic terrorism. Jewish and Christian denominations have schisms when major issues of docrine and/or tradition divide the congregation. Likewise, Islam has also branched into many diverse sects. But I see no robust theological response squarely aimed at reforming the violent roots of Islam. Instead, the anti-terror response appears to be left to Arab governments. These Muslims may be "non-denominational". However, this is no excuse to declare alligence to both the American ideal "each according to the dictates of his own conscience", while at the same time maintaining solidarity with the Muslim world, being as illiberal as it is. There are numerous liberal Muslim associations, but they all look to be loose associations with "value statements". Any mosque or Imam with a doctrine must declare any verse in the Koran which could be interpreted as justifying indicriminate killing to be a heretical interpretation. Responsible Muslims must draw a theological line in the sand, and renounce the legitimacy of any imam or mosque which does not declare alligence to that reformed theology. In effect, they must unequivocally separate themselves from the larger, undeclared, Muslim world. If instead they continue to sit back, then I suppose they deserve the grief they get by not providing an answer in proportion to the question.

  • JordanW||

    Live and let live. Not live and let die.

  • Rich Vail||

    Hate much?

  • FlameCCT||

    Projection is a serious issue my friend and if left untreated one becomes delusional. I suggest seeking professional assistance.

  • Rich Vail||

    That will never happen as the vast majority of Muslims actually support terrorism against non-Muslims...and against Muslims who are of a different sect, as well.

  • JordanW||

    US Muslims uniting behind tolerant Islam is not a heavy lift.

    What's missing is the moral courage to stand up to Pious leaders.

    A united movement for a single, enlightened, authentic Islam in no way diminishes Muslims' ability to push for international human rights. Foreign heretics still have human rights.. However, being formally associated with a doctrine that equivocates to violent tactics leaves them morally culpable, no matter what happens in the larger Muslim world.

  • Careless||

    Any mosque or Imam with a doctrine must declare any verse in the Koran which could be interpreted as justifying indicriminate killing to be a heretical interpretation

    And after the first couple who do that are beheaded/burned down...?

  • Jmaie||

    Islam is likely less organized than you think, there is no official hierarchy to issue such a response/demand. Individials can issue a fatwa which carries exactly as much weight as the person listening wishes to give it. Countries can and do have official religious leaders but that is an act of governmental rather than religious authority. Those officials may have more authority compared with the corner Imam, but they have only the power of physical force - not excommunication.

  • ranrod||

    California politicians living under Sharia Law.....The USA is over.....
    these people, NRA included are all CFR/CNP sellouts.........

  • Tionico||

    that assumes that what is commonly known as "the State of California" is yet a part of the Union, the USA THAT is quite the stretch, considering how many solid constitutional proinciples that state has violated, ignored, disregarded, opposed.....

  • Ghost on the Highway||

    The embedded CNN story is a quite interesting read in that it casts dispersion on the state's separate felony case (making a threatening phone call to the Islamic Center) against Feigin. Also interesting that the LAPD had a show and tell press conference on the arrest.

    http://ktla.com/2016/10/25/man.....-of-socal/

    So what was the outcome of the felony charge?

  • Eugene Volokh||

    Still pending.

  • Ghost on the Highway||

    Thanks, I was unable to find much on the internet regarding the schedule on the felony charge. The misdemeanor charge gets 95% of the media coverage (Facebook). Latest on that is:

    https://reason.com/assets/db/15145257062289.pdf

  • Alive Free Happy||

    "THE TERROR HIKE" and comments like it seem to be an incitement of violence. If someone is falsely accusing you of violence or a crime then they are trying to call violence down upon you with fraud.

    Free speech comes with being responsible for the effect of the speech.

    If you say, "give me your wallet." Then it is reasonable that the person you said it to believes you to be a clear and present danger and does violence to you in defense regardless of whatever right to speech you have.

    If you say "fire" in a crowded theater, and people die in the resulting panic, you are responsible. If it can be shown that you did it because you wanted to harm people, then this would be a criminal mind.

    If you say, "this man just killed my children", then the person you are pointing at has every reason to believe that you are trying to call upon others to do immediate violence to him and do what he must to stop you.

    If you call the SWAT on a house, even if no one was shot, you did real violence... with speech.

    If the things this guy did say were only "vexxing" then I would agree with the point. However, at least the one statement I pointed at is one that has the clear trajectory of inciting violence regardless of the intent. This guy was looking to hurt them, most of the statements may not rise to the level of hurt that would call for self defense, but calling someone a terrorist is certainly a call for doing harm to them - not just "vex" but to put in fear of violent reaction.

  • Rossami||

    re: "seem to be an incitement of violence" - not according to any legal precedent in the US. The "incitement to violence" exception to the First Amendment is very, very narrow.

  • Jerry B.||

    So calling NRA members personally responsible for any firearms violence would be irresponsible and actionable, then?

  • geokstr||

    "If you say "fire" in a crowded theater, and people die in the resulting panic, you are responsible. If it can be shown that you did it because you wanted to harm people, then this would be a criminal mind."

    Unless the theater was actually on fire, then the prosecutor would somehow have to prove that you intended for people to die in the panic you allegedly caused, and that no one was saved by your timely shout. Non?

  • rudehost||

    Calling someone a terrorist is not the same thing as calling for violence against someone. This is obvious to people who aren't too fucking retarded to care for themselves. The standard that applies for restricting speech is it has to be inciting "imminent" lawless action. Again except for those too fucking retarded to be able to care for themselves this doesn't match that standard.

    See Brandenburg V Ohio
    https://en.wikipedia.org/wiki/Brandenburg_v._Ohio

  • geokstr||

    Given that 'RAACCCIIIST!" has lost its sting from overuse, and "Islamo/Homo/Trannyphobe!" are fast losing their power for the same reason, the left/Marxists/Democrats/Stalinists/MSM (but I sextpeat(tm) myself) have taken to screeching "TERRORIST!" at everyone who disagrees with them about anything. Unfortunately, good luck finding a DA anywhere to prosecute them that didn't donate to the Red Queen or The Bern in 2016.

  • Rev. Arthur L. Kirkland||

    I find it comforting that a white, male, right-wing, ostensibly academic blog attracts the level of commentary one finds at the Volokh Conspiracy.

    I eagerly await a pronouncedly progressive future.

  • geokstr||

    I find it so much more inviting to see that in the VC's new home, leftlings like yourself and Sarcastro are a tiny minority for a change. At the WaPo, it was way too expensive to support that dying fishwrap just to comment on one blog overrun by the left.

    And, from one atheist to another, for someone who's a one-trick religionaphobic pony, it's rich to hear you complaining about the quality of discourse.

  • Rev. Arthur L. Kirkland||

    Get a better job. Develop some marketable skills. Arrange a life in which freeloading and deprivation are not the first choices. Quit whining.

  • Mark22||

    I eagerly await a pronouncedly progressive future.

    Given the progressive movement's record in the 20th century, I wouldn't be so eager. Fortunately, most Americans do not seem to be eager to repeat those mistakes.

  • Rev. Arthur L. Kirkland||

    You figure the conservative wish list -- criminalized abortion; prayer in public schools; widespread gay-bashing; eradication of Social Security and Medicare; race-targeting voter suppression; childish creationism and yahoo history in classrooms; discrimination against Muslims, agnostics, atheists, and others; Alabama-style race relations -- is poised for a big comeback in the United States?

    Do you have inside information about a conservative plan to build a machine that mass-produces cranky, old, religious, rural, selfish, easily frightened, half-educated, economically irrelevant, stale-thinking, belligerently ignorant, southern white males?

  • Headache||

    Do you know why Muslim woman have to cover their entire body except for the eyes?

    To hide the bruises.

  • Sevo is my bitch||

    So does your mom. But that's because she's ugly too.

  • PoxOnBothYourHouses||

    People here are discussing (or having fun with) the specifics of the case. There's too little interest in the general laws that the authorities use: in this case one of several that make it a crime to intend to "annoy." Shouldn't this be the dictionary example used with the term "over broad?"

    (there have been other "intent to annoy" posts at the VC)

  • David Welker||

    We need a California AG that respects the basic constitutional rights of its citizens. This case should not even be considered a "close call" by anyone.

  • Tionico||

    California have precisely the AtG they want and deserve. The ol' Beast Becerra.... not worthy of the name attorney. It has been a LOOOOOoooonnnngggg time since that blighted state have had an AtG worthy of the name.

  • tommhan||

    Even if they convict this person at first it will never survive, too many holes in this case.

  • geokstr||

    The point of this is not necessarily to convict, it's to publicly humiliate, shame, impoverish and destroy the reputation of the accused for doubleplusungood crimethought. A conviction would just be the proverbial cherry on top.

  • Migrant Log Chipper||

    For crying out loud, if being an asshole was against the law artie poo would have been sent up the river ages ago.

  • Kazinski||

    California's criminal code distinguishes between conduct and speech. "Badthink" is clearly unprotected conduct, not speech. Expressing the badthink merely provides the evidence of the crime, but it isn't the actual criminal act.

    It can be a difficult concept to distinguish the two but a good judge will make the difference clear in his jury instructions to ensure only badthink itself is punished and not expressive conduct like disrupting badthink at lectures and in university classrooms.

  • Pettifogger||

    One of the Left's arguments against the Second Amendment centers on today's more advanced technology. I used to think that could be countered by pointing out how advanced technology might bear on the First Amendment. But now I realize the Left has no more commitment to the First Amendment than to the Second. They're not big on due process, either. We're headed into dark times.

  • geokstr||

    It's lawfare against infidels intended to break the accused financially and psychologically even if acquitted, a means of punishing blasphemy against Islam, under a law that appears facially even-handed.

    I would bet, especially in California, that public prosecutors donate 20-1 to Democrats. Those who insult the NRA or Christians or white males will never be charged under this law, and it will be excused as "prosecutorial discretion".

    The Shariahization of the US begins, hailed by the left. Which to me never made sense, because Muslims loathe everything the left stand for, and they'd lose their heads first if Islam ever gained power.

  • Rev. Arthur L. Kirkland||

    I would bet, especially in California, that public prosecutors donate 20-1 to Democrats.

    How you do propose to solve this problem? Recruit prosecutors from disability office lines, revival meetings, or 'rasslin audiences in Mississippi and Alabama?

  • geokstr||

    Shakespeare answered that question, what, a half millennium ago?

    But seriously, Rev, what would you do if the reverse were true and conservatives dominated among prosecutors and they only enforced the laws against those on the left? Then toss in school and university faculty, BigLaw, unions, the MSM, Hollywood, the Culture industry and government bureaucracy all controled overwhelmingly by the right and using Alinsky's Rules non-stop against your ideology.

    How would you feel about that? And what actions would you be willing to take?

  • Rev. Arthur L. Kirkland||

    Quit whimpering.

  • hello.||

    It's nice when idiots come right out and admit plainly that they have no argument to make.

  • Earth Skeptic||

    I have wondered what inspires the Left's affinity for Muslims, even when they demonstrate fundamentalist Islam. Is it because the Left hates fundamentalist Christians, who in turn hate Muslims? (the old enemy of my enemy)

    Like wise, I am puzzled when the same Leftists who rant against Christian Creationism trip over themselves to support Native American Creationism. (BTW, both are bullshit, IMO)

  • ScottK||

    Speaking for the left, we find all worship of imaginary deities bizarre, and each group should stop pretending it is more correct or worthy than the others, and using its religion to steal property or abuse non-believers.

    Equality, baby, catch the wave!

  • hello.||

    On the other hand, your hopeless devotion to identity politics as a wedge issue to wield political power because you are ruthless, blood-lusting authoritarians means you will side with anyone when it is expedient.

  • lakawak||

    Scott..you realize that you DON'T speak for the left, right? Even among liberals, the vast majority believe in a higher power. You should have accepted long ago that you don't speak for anyone. No one on the planet wants you life or to think like you. Literally 7.4 billion people on the planet would kill themselves rather than live one second as you.

  • Deflator Mouse||

    The Facebook page functions as a public forum, not a private "electronic communication device" used for sending messages to a particular person (or even a particular organization). Comments on Facebook pages are commonly directed at other readers of the page, not the owner of the page. The defendant could argue that the message wasn't even intended for the ICSC but for other visitors to the page.

    If he had sent private messages to ICSC with this content, the law would seem more applicable, though it still might violate the first amendment.

  • Jayburd||

    Reaping the benefits of the California public education system.

  • Peter||

    Could they prosecute someone for disrupting a Disneyland exhibit by shouting insults at a robotic Donald Trump?

  • ScottK||

    The first amendment wins. Yay.

    A prick has to pay legal fees as a result of him being a prick. Double yay!

  • Eugene Volokh||

    1. Why do you say "The first amendment wins"? So far, the charges haven't been dismissed.

    2. Even if the charges are dismissed, how does the First Amendment win when people -- pricks or not -- are being forced to risk jail and to pay legal fees because of their speech?

  • Sevo is my bitch||

    The First Amendment says nothing about any speech being restricted.

    ALL restraints, and there are very, very few of them, have been legislated from the bench. "Falsely shouting fire in a crowded theater" for example. A public theater, or a private theater, it does not matter, there is NOTHING in 1A that prevents this behavior. Speech has a purpose: to cause a change. That it provokes violence, or deep thought, or a peaceful revolution has no bearing on 1A.

    If anything, the court precedents should be declared unconstitutional. ANYTHING goes. That includes provocation to kill a Nazi (or for Nazis here, kill a Jew). After all, calling for the overthrow of the Brits is how that damn Bill of Rights came into being.

    Read 1A and show where such is prevented?

    It is not surprising however that VC would stand for free speech or the Constitution schizophrenically.

    Defamation? Why is that not free speech? Because some SCOTUS ruled so. Arbitrarily.

  • hello.||

    Fraud and threats of violence aren't 1A issues. Those have been illegal for right around a thousand years in common law in every Western country on planet earth.

    See if you can cop some talking points off of someone with an IQ higher than room temperature. I know they're hard to find in the circles in you travel.

  • Sevo is my bitch||

    Well, right now now no.

    You are not even lukewarm, and it'll need someone who does have shit for brains and a functioning vocabulary to think on what I said.

    Shrieking "threats of violence" does not help your pitiful condition.

    You may now fuck yourself. No one else will.

  • lakawak||

    Scott...this is why nobody wants you alive, including yourself.

  • Longtobefree||

    might not be such a bad idea. No more global warming posts, no more Tony, no more liberal posts, no more conservative posts, no more federal register - - - - -

  • hello.||

    It must be strange publishing a piece like this at a place where a senior policy analyst has called for using violence to silence offensive speech and a staff writer cyberstalked a man, then subsequently published his personal information including his address and phone number, contacted his employer to try to get him fired from his job, and threatened other legal action for telling her she should make him a sandwich on Twitter. I have a feeling that as the paymasters get more and more aggressive with their anti-speech agenda as they go further and further out of their minds with each passing moment of the Trump presidency, Volokh is going to either become a lot less absolutist about 1A issues or have to shop for a new publisher again.

  • JBSparks||

    I'm subjected to a lot of things that hurt my feelings. Now, I expect you all to care. Pass a law or arrest someone or something.

  • John Kirno||

  • John Kirno||

  • DinaK||

    The Internet is a public forum, so is the company website. As long as the company may block a person, then it has taken control and has the ability to stop the annoyance. Case closed. If somebody uses the US Postal Service to harass someone over and over and the recipient can't stop it from coming, then he may charge the sender with some annoyance law. But sending an email or posting something isn't a crime as long as one isn't threatening harm or inciting others to commit a crime, And again, the recipient may block the sender. , And again, the recipient may block the sender. I'm looking forward to Jews in California taking Muslims to court for all of their horrific statements about Jews – let's see how far California is willing to take this ....

  • DinaK||

    Just did more research and saw that he actually telephoned and said that he was going to kill people and then the police noticed that he also posted on a public forum. Obviously his calling in threats to kill people is where he broke the law.

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