Category: reason

Superman & Lois. The CW Tuesday, February 23, 9 p.m.

I have a damning confession to make. Though I’m a TV critic in an entertainment world rife with superheroes, I haven’t laid eyes on Superman—not in a TV show, a movie, a video game, or comic book—in more than 40 years. (And then only because a journalist friend advised me that the movie Superman, with Christopher Reeve, included Daily Planet editor Perry White’s explanation of what made Clark Kent such a great reporter: He was “the fastest typist I’ve ever seen.”)

Otherwise, my knowledge of the character is pretty much limited to the old 1950s TV series, which my elementary-schoolkid pals and I watched endlessly in syndication, laughing ourselves into tears as Superman busted such threats to the American way of life as a rogue ventriloquist’s dummy, some Haitian voodoo priests and even—egad! —a crooked professional wrestler. We lost interest when we realized Superman was never going to use his X-ray vision to look under Lois Lane’s clothes. (We continued to hold out hope for those X-Ray Spex we saw in ads in the back of comic books.)

In the years since, I’ve missed about 200 Superman movies and TV shows, and that’s only counting those that have the word “Superman” in the title—when you start adding  Superboys and Supergirls and Superdogs (seriously), the numbers turn googolesque. I am, generally speaking, unrepentant about this, though I’ll confess to an occasional twinge of longing to see Superman and the Mole Men, in which a grungy race of underground creatures wield a death-ray thingy which looked alarmingly like my mom’s Electrolux vacuum.

So I wasn’t expecting much out of The CW’s Superman & Lois, the big guy’s latest iteration. Instead, you can color me amazed. The ageless Man of Steel has leapt not over tall buildings at a single bound, but an entire generation. At the cusp of middle age, he’s got money problems, sullen teenagers, carping in-laws and a restless wife. For the first time ever, he’s getting a taste of the inevitability facing a substantial number of his fans: Getting old is not for wimps.

Not that Superman & Lois isn’t planted squarely with The CW’s Arrowverse, the shared universe of DC Comics superheroes that the network began building a decade ago with Arrow and now numbers six series. It even features familiar faces in its title roles; Tyler Hoechlin and Elizabeth Tulloch have been playing Clark Kent and Lois Lane as recurring characters on CW shows like Supergirl and The Flash for several years.

But in Superman & Lois, they’re well past the incognito-superhero-and-suspicious-ingenue-reporter stage. They’re married, with twin sons on the verge of starting high school and already fully immersed in the mom-and-dad-bashing ethos of teenage life. “You may have been sent here to be some kind of hero,” declares one of the boys to his dad, “but you sure as hell weren’t sent here to be a father.”

Less brutally, perhaps, but just as pointedly, Lois shares the kids’ conviction that Clark is away from home too much, working double-time as a reporter by day and then donning the superhero tights at night. Even his sweet old human mother back in little Smallville joins in the chorus of carping about his late hours. “I do have a responsibility to the world, Mom,” wearily replies Clark, just back from stopping the meltdown of a nuclear power plant.

He doesn’t mention the latest round of newsroom layoffs at his paper, the Daily Planet, which even with its endless stream of Superman scoops (written by Lois in splendidly blithe disregard for any known code of journalism ethics), faces declining circulation and increasing pressure to produce clickbait crap. Or maybe fake news: “People quit reading that paper because you reporters can’t keep your politics to yourselves,” snipes one of Clark’s friends.

And his worse-for-wear mom says nothing of the troubles in Smallville, an economic moonscape where trailer-park meth labs are the only growth industry and a predatory zillionaire is gobbling up all the foreclosed farms. Like a lot of Americans taking their first steps onto the downhill side of middle age, Clark and Lois feel the melancholia and menace of a world closing in.  “When we were dreaming about having a family,” murmurs a forlorn Lois in an unguarded moment, “it didn’t look like this, did it?”

To be sure, Superman & Lois is not some do-not-go-gentle-into-that-good-Kryptonite wallow in gerontologic despair. It has plenty of conventional superhero plots, all imaginative and well-crafted. (That nuclear power plant mess was no one-off, but the work of a serial melt-downer who appears to have a grudge against Superman.) It’s not above having a little straight-faced fun with itself—I loved a scene where Clark super-slaps around a vending machine that refused to turn loose a bag of potato chips. And the acting never turns hacky or camp. In particular, Jordan Elsass (Little Fires Everywhere) and stage actor Alex Garfin as Clark and Lois’ kids manage to seem troubled without turning into martyred teenage drama queens.

Overall, the show—or at least its pilot episode, the only one The CW made available—manages the extraordinary feat of appealing to young genre fans as well striking a chord with their parents, even those still wondering if modern technology can’t produce a pair of X-Ray Spex that really work. As an embroidered sampler on the Kent family home in Smallville observes, “IT ALL WENT BY SO FAST.”

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I wrote about Hyman v. Daoud in November (reproduced below), but three days ago Google got the following takedown request from someone:

Re: Unknown

NOTICE TYPE: Defamation

Legal Complaint: Google provided this person with my confidential court order….

URLS OF ALLEGEDLY DEFAMATORY MATERIAL: https://ift.tt/39f9yT0

The order I wrote about was attached to the request. There was no indication, though, of what was supposedly defamatory about what I wrote; and though the request claims the court order is confidential, that’s not true: I just confirmed that the order is available on the Miami-Dade County court records site (search for local case number 2012-044972-CA-01 and go to docket number 38).

I e-mailed Ms. Hyman to ask her for some more explanation for what was thought to be defamatory or confidential here. I can’t be sure that she was the one who submitted this request, directly or through an agent, but she would seem to be the likely beneficiary; and in December she had e-mailed me to ask me to remove my post, though I said no to that request. I have not heard back from her, but if I do, I will post an update.

Here’s the original post:

Alex Daoud had been mayor of Miami Beach from 1985 to 1991, but was then convicted of bribery and various other charges. Some years later, he arranged a real estate deal together with his daughter, Kelly Hyman (a lawyer and occasional political commentator)—but that went bad, and led her to sue him. The case dragged on for years, and unsurprisingly got a good deal of media coverage, such as in the Miami Herald, on the local CBS affiliate, and in the Real Deal (South Florida Real Estate News).

Hyman also alleged that Daoud or people working with him had posted various derogatory things about Hyman and her family (which includes her husband Paul Hyman, a retired federal bankruptcy judge), at sites named “atrociousattorney.com,” “avariciousadulteress.com,” “despicabledaughter.com,” and the like. As a result, the parties entered into an Agreed Order to Take Down Internet Posting Related to Kelly Hyman, Paul G. Hyman, Jr., [and other family members], in which Daoud was ordered to remove such posts.

So far, that’s fine; parties are generally entitled to enter into such agreements. But here’s the twist: After imposing the obligations on Daoud (who was a party to the agreement), the order went on to purport to bind third parties, who weren’t parties (and to my knowledge weren’t even notified that their rights were being adjudicated):

FURTHER ORDERED AND ADJUDGED that within ten (10) of being furnished a copy of this Order any internet-related services, internet service provider, host provider and/or search engine shall

remove and cause to be removed from any Site (including the web sites themselves and all URLS and links, even if they change) all statements, posts, social media, or videos or documents related to directly or indirectly to this lawsuit, and/or [the Hymans] and/or any website or posting defamatory, slander, or any statements against [the Hymans] … including, but not limited to the Sites [listed earlier in the order].

remove and cause to be removed any derogatory references to Kelly Hyman including, but not limited to any reference to Hyman as an “adulteress,” “blackmailer,” “whore,” “despicable,” “liar,” and/or any derogatory and/or negative comment about Kelly Hyman.

remove or cause to be removed any derogatory reference to Paul G. Hyman, Jr., including, but not limited to any reference to him as “prenup paul,” any judicial complaint and/or any derogatory comment about him including but not limited to any alleged misconduct.

remove and cause to be removed statements, documents, videos, and/or postings about this lawsuit, Kelly Hyman v. Arnold Daoud; related to the house located at 1750 Michigan Ave, Miami Beach, Florida; any communication between Kelly Hyman and Arnold “Alex” Daoud; and/or any libelous, defamatory, and/or slanderous websites, videos, internet posts and/or social media posts about [the Hymans], which was or is created directly or indirectly by Daoud.

And Google has indeed been asked, on the strength of this order, to deindex not just items that may have been posted by Daoud, but also mainstream media articles (see here and here):

https://ift.tt/3ftXZbK
https://ift.tt/3m2m5Nj
https ://miami.cbslocal.com/2014/06/27/notorious-father-faces-eviction-by-daughter/
https://ift.tt/2UZdP4B
https://ift.tt/3ftsLS5
https://ift.tt/2KyoUrr

And Google was also asked to deindex two items that criticize Judge Paul Hyman, which do not appear to be linked to Daoud, and which in any case consist of copies of documents filed in other matters:

https://ift.tt/33aZZ3S
https://ift.tt/3fC3xkE

This appears to be the court’s fully approving an order proposed by Ms. Hyman’s lawyers.

I expect that Google will see through this, and will realize that it’s not actually bound by the order (despite what the order says), because it had never been made a party to the case (and wasn’t acting in concert with a party). And I expect that Google will also conclude that it shouldn’t deindex the mainstream media pages (and the criticisms of Judge Hyman) even voluntarily, because there’s no basis for thinking that there’s anything false and defamatory there.

Still, I think the court erred in approving the overbroad agreed order, which on its face purports to bind entities that had never agreed to it. (I have e-mailed Kelly Hyman and her lawyers to get their side of the story, but haven’t heard back from them.) [UPDATE: See here for an odd response I got from one of the lawyers after I put up this post.]

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Hazard pay ordinances mandating wage premiums for grocery store workers during the pandemic are spreading across the West Coast. Following them are store closures and complaints from owners that these new laws will soon put them out of business.

On Tuesday, Quality Food Centers (QFC), a Kroger-owned supermarket chain, announced it would be closing two of its Seattle locations. The decision, the company says, was “accelerated” by the city’s new mandate that large grocery stores pay their employees an additional $4 per hour.

“When you factor in increased costs of operating during the COVID-19, coupled with consistent financial losses at these two locations, and this extra new pay mandate, it becomes impossible to operate a financially sustainable business,” said the company in a press release.

That ordinance was passed unanimously by the Seattle City Council in late January and went into effect earlier this month. It is set to last as long as the city’s declared COVID-19 emergency is in effect. It applies to all grocery stores that are larger than 10,000 square feet and are operated by companies with more than 500 employees globally.

Kroger’s store closures in Seattle mirror its actions in Long Beach, California, where the company also closed two poorly-performing stores following the city’s passage of a near-identical $4-an-hour “hero pay” law for grocery store workers.

Those aren’t the only stores that could be on the chopping block. Everywhere pandemic hazard pay policies have passed, store operators are warning they’ll soon be out of business too.

In court filings in a federal lawsuit challenging Seattle’s hazard pay ordinance, two franchise owners of Grocery Outlet, a discount grocery chain, said the city’s mandated $4-per-hour wage premium is forcing them to operate at a loss.

Steve Mullen, an owner of a Grocery Outlet in Seattle’s Madrona neighborhood, said that the hazard pay law is costing him an additional $20,000 in labor costs each month.

“The store does not make that much on a monthly basis and [the hazard pay ordinance] will push the store into a significant deficit,” said Mullen in court filings tweeted  out by independent Seattle journalist Kevin Schofield. “I cannot continue to operate a store that is consistently unprofitable. If losses occur as predicted, I will likely be forced to close the Madrona Grocery Outlet store.”

It’s the same story for Michael Sandberg, the owner of a Grocery Outlet in Seattle’s Lake City area, who said the city’s new law will increase his costs of employing his current 22 employees by about $10,000 a month.

“The store does not make nearly that much” per month, wrote Sandberg in a court filing for the same lawsuit. “Paying the mandatory hazard pay will cause the Lake City Grocery Outlet store to go into the red.”

Mullen and Sandberg’s declarations are part of a lawsuit being brought by the Northwest Grocery Association and the Washington Food Industry Association, two trade groups representing grocers, against the city of Seattle in the U.S. District Court for the Western District of Washington.

Their complaint alleges that the city’s hazard pay ordinance is preempted by the federal National Labor Relations Act (NLRA), which the grocers argue leaves it to companies and unions, not local or state governments, to hash out compensation agreements.

The two groups’ complaint also says the city’s hazard pay ordinance violates the Equal Protection Clause of the U.S. Constitution’s 14th Amendment and the Washington Constitution by arbitrarily requiring only grocery stores to pay out these wage premiums.

The California Grocers Association (CGA) is making identical arguments in six separate federal lawsuits it’s brought against cities in that state which have passed their own hazard pay ordinances for grocery store workers.

Those lawsuits have also sparked identical claims of hardship from grocery store owners and operators.

John Franklin, chief financial officer for Northgate Gonzalez Markets, a Southern California grocery chain, declared in court filings in the CGA’s lawsuit against the city of Long Beach that had the pay ordinance been in effect during all of 2020, its three Long Beach locations would have lost between $47,000 and $74,000 each month.

Defenders of hazard pay for grocery store workers, sometimes called “hero pay,” say that grocery chains are using store closures as a scare tactic to discredit these policies and avoid pay increases they can easily cover with their record pandemic profits.

United Food and Commercial Workers (UFCW) 21—the union representing grocery store workers in Washington—called the latest QFC store closures “a transparent attempt to intimidate other local governments” from passing similar laws. The union notes that Kroger ended its voluntary $2-an-hour hero pay bonus in May 2020, even as the company’s profits “soared.”

Teresa Mosqueda, a Seattle City Council member, said in her own statement attacking the QFC closures that one of the company’s stores was already slated for redevelopment.

The city of Long Beach has a made similar argument when defending its hazard pay ordinance from the CGA’s lawsuit. Included in one of the city’s court filings were links to news articles reporting that Kroger’s net earnings doubled year-over-year during the first three quarters of 2020.

The grocery industry has countered that its increased profitability still leaves it with razor-thin profit margins that would be more than erased by these hazard pay policies.

A report from economic consultancy firm Capitol Matrix Consulting, prepared for the CGA as part of their lawsuits, found that a $5-per-hour hazard pay premium—which was passed in Oakland and is being considered in Los Angeles—could increase stores’ average labor costs by 28 percent and overall costs by 4.5 percent. That’s about three times the normal profit margin for grocery stores, and twice the profit margin grocers were making at the height of the pandemic.

Were a $5-per-hour hazard pay law to be applied to the entire state of California, grocery stores would have to cover those costs either with a collective $4.5 billion increase in prices or shed 66,000 jobs, the report says.

Viewed in this light, hazard pay laws look less like a free reward provided to grocery store workers and more like a massive transfer program from consumers to workers, or from some grocery store workers to others.

Of course, companies aren’t limited to just raising prices or cutting staff positions. More likely, they’d do some mix of both, making other cost savings and maybe accepting slimmer profit margins.

Even when it comes to grocery store regulations, there’s no free lunch.

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By now, you’ve probably heard about Sen. Ted Cruz (R–Texas) fleeing his mid-crisis state for a family vacation to Mexico. As Texans struggle to survive amid days of freezing weather and power outages, the Cruz story is, at best, a distraction from any real issues involved. But it’s also perfect tribal warfare fodder, so of course it became the centerpiece of Texas crisis coverage and commentary yesterday.

Perhaps the most tedious part about the whole cycle is how rarely anyone’s opinions on this story deviate from their already-held opinions of Cruz and/or Republicans more broadly. Those who think he’s the worst have seized on this as another opportunity to say why he’s the worst—what kind of monster abandons his constituents in a time of tragedy to soak up some sun in Cancun? Those who normally support Cruz countered that the senator is powerless in this situation and that the senator and his family staying in Texas and suffering along with the masses wouldn’t have accomplished anything.

That last part is both true and not. A number of politicians, including those from outside Texas, have been doing plenty to help out from afar. For instance, Rep. Alexandria Ocasio-Cortez (D–N.Y.)—a perennial punching bag of Cruz’s—helped raise $1 million for Texans in need yesterday. So the idea that Cruz couldn’t be doing something doesn’t fly.

Did Cruz necessarily need to remain in Texas to do good deeds for the people there? The AOC example also suggests the answer here is no. The Cruz defenders are right about at least that much; the senator could very well have pitched in from his phone and laptop on a Mexican beach.

But did he actually do that? The answer is also no.

There’s no evidence that Cruz high-tailed it out of Texas and then, once he and his family were safe, got right back to work in aiding his constituents. Rather, he arrived in Cancun, spent his time there defending his decision to flee Texas, and then returned ahead of schedule yesterday afternoon, blaming the whole debacle on his kids.

“With school cancelled for the week, our girls asked to take a trip with friends. Wanting to be a good dad, I flew down with them last night and am flying back this afternoon,” Cruz said yesterday.

The Ted Cruz thing is ultimately a pretty silly and pointless controversy — it's not like he can single-handedly turn the power back on by remaining in Texas — but holy moly is it a lot of fun to watch him step on a political rake two months in a row

— Eric Boehm (@EricBoehm87) February 19, 2021

FREE MINDS

Everybody’s wrong about the Facebook/Murdoch standoff in Australia. Reason‘s Scott Shackford explains why here. “The fight between Facebook and Australian media companies—which boiled over Wednesday with an announcement that Facebook would no longer allow users to share links to news stories from outlets based in Australia—is not about ‘democracy’ or monopolies in any way, shape, or form. It’s about advertising revenue, and who gets it,” Shackford writes.

The drama stems from the Australian government trying to charge Facebook and Google to link to news websites.

As usual, Mike Masnick at Techdirt also has some smart thoughts on the issue. “Facebook is a terrible, terrible company and deserves lots of blame for lots of bad things that it does. But this ain’t it,” Masnick writes. And yet…

We can argue about whether or not Facebook is ‘compatible with democracy’ but the simple facts of the situation are that Australia—pushed heavily by Rupert Murdoch—has decided to put in place a plan to tax Google and Facebook for any links to news. The bill has all sorts of problems, but there are two huge ones that should concern basically anyone who supports a free and open internet.

First is the link tax. This is fundamentally against the principles of an open internet. The government saying that you can’t link to a news site unless you pay a tax should be seen as inherently problematic for a long list of reasons. At a most basic level, it’s demanding payment for traffic. There are two entire industries out there based entirely around trying to get more traffic from these companies: “search engine optimization” and “social media management.” The reasons there are those industries is because everyone else in the world has figured out that having prominent links on search engines and social media is valuable in its own right and that it’s up to the sites that get those links, and the corresponding traffic, to make use of it.

But here, a bunch of lazy newspaper execs who failed to adapt and to figure out better internet business models not only want the traffic, they also want to get paid for it.

This is like saying that not only should NBC have to run an advertisement for Techdirt, but it should have to pay me for it. If that seems totally nonsensical, that’s because it is. The link tax makes no sense.

More here.

FREE MARKETS

New York has legalized gestational surrogacy. Until this week, the state of New York made it illegal for a woman to carry another’s child. “My husband and I had our two daughters through surrogacy—but we had to travel 3,000 miles to do it because our home state had banned the practice,” state Sen. Brad Hoylman (D–New York City) said in a statement. “Thanks to the Child-Parent Security Act, gestational surrogacy is finally legal in New York State, giving LGBTQ couples and people experiencing infertility the opportunity to build a family through surrogacy here at home.” You can find more info on the new rules and requirements for New York surrogates here.

QUICK HITS

20 years from now I’m going to teach students about how in the same country, at the same time, people became millionaires and did prison time for the same substance. https://t.co/QHwqA4X4qU

— Kenzo (@KenzoShibata) February 18, 2021

• Americans made our sixth unmanned landing on Mars yesterday.

• Vaccine passports: libertarian or Orwellian?

• Capitol riot update:

JUST IN:

–@CapitolPolice tell me 35 officers are under investigation for actions on Jan. 6.

-6 are suspended w/ pay

Acting Chief Pittman has directed any member whose behavior is not in keeping with the Department’s Rules of Conduct will face appropriate discipline. 1/2 pic.twitter.com/xqbF8B3eNx

— Lindsay Watts (@LindsayAWatts) February 18, 2021

• South Carolina has banned nearly all abortions. Planned Parenthood is suing to stop it.

• Would Americans have more babies if the government paid them? “Research from around the world suggests that, like other fertility policies, payments to parents do slightly increase the number of babies people have in the near term. But no move has made a major long-term difference,” reports The New York Times.

• President Joe Biden walks back plans to be humane to undocumented immigrants:

BREAKING: President Biden just issued new ICE guidance wholly abandoning his pledge to halt deportations. ACLU says this is "a disappointing step backward from the Biden administration’s earlier commitments to fully break from the harmful deportation policies" of Trump and Obama.

— Colin Kalmbacher (@colinkalmbacher) February 18, 2021

• A federal minimum wage increase isn’t likely, Biden told a group of mayors and governors this week.

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I’m continue to serialize my forthcoming UC Davis Law Review article What Cheap Speech Has Done: (Greater) Equality and Its Discontents; you can read the Introduction, but in this post I’m talking about how “cheap speech” has led to criminal remedies for the disclosure of private facts. Recall that the article is mostly descriptive, focusing on what’s happening, for better or worse.

[* * *]

Some courts are also issuing broad injunctions against “harassment” or “stalking,” often barring defendants from posting anything at all about plaintiffs. And these orders are often just responses to defendants’ repeatedly criticizing plaintiffs, even in the absence of defamation or true threats.

Let me offer three examples:

The poet: Linda Ellis wrote a poem called The Dash, about life and death. Many people found the poem moving, and posted it on their own webpages — only to draw letters from Ellis threatening copyright infringement lawsuits, and demanding payments of thousands of dollars as settlements. People began to criticize her in discussions on a site run by Matthew Chan, which had been set up to criticize allegedly excessive demands by copyright owners; there were eventually thousands of posts condemning her. Ellis then sued Chan and got an “antistalking” injunction, which ordered Chan to remove “all posts relating to Ms. Ellis” from the site — not just allegedly defamatory posts, not just allegedly threatening posts, but all posts.

The police officer: Patrick Neptune believed police officer Philip Lanoue cut him off in traffic, gave him an unjustifiable ticket, and then informed Neptune’s parents of the incident. Neptune responded by criticizing police officer Philip Lanoue on the site copblock.org, sending several letters to public officials, and sending three letters to Lanoue’s home address. Lanoue got a court order barring Neptune from, among other things, “posting anything on the Internet regarding the officer.”

The ex-girlfriend and successful video game developer: Zoë Quinn, a prominent video game developer, had a short romantic relationship with Eron Gjoni, also a video game programmer. After the relationship ended, Gjoni posted a webpage that condemned what he saw as Quinn’s emotional mistreatment of him. This led to a torrent of online criticism of Quinn by others, including some threats of violence, partly because Gjoni’s post was interpreted as suggesting that some of the favorable reviews of Quinn’s games were written by reviewers who were themselves romantically involved with Quinn. That in turn led to an ongoing debate between Quinn’s supporters and opponents — the Gamergate controversy, which is too long and complicated to detail here. But what is significant for our purposes is that Quinn got a court order forbidding Gjoni from “post[ing] any further information about [Quinn] or her personal life online or . . . encourag[ing] ‘hate mobs.'”

These are just a few examples out of many more that I can offer. Many appellate courts have rejected such orders as unconstitutional, though others have upheld them. I discuss elsewhere why I think the injunctions do violate the First Amendment.

Here, I just want to speculate about why courts are so willing to enter such extraordinarily broad orders. And the reason, I suspect, is connected to the democratized, cheap speech provided by the Internet.

Repeated criticism, even if it consists of opinions and accurate factual statements, is undoubtedly disquieting. It can damage reputation, often using claims that a judge may view as unfair, even though not libelous. That is especially so if the criticism becomes prominent in Google searches for one’s name, and defines one to strangers or casual acquaintances. And if the criticism gets more of a direct readership, for instance if it gets redistributed via Twitter or Facebook, it can lead to threats against the person being criticized, or even physical attacks.

Such criticism can be perceived as intruding on privacy by making its targets feel that they have become the object of others’ curiosity or amusement. The law does not generally treat that as actionable invasion of privacy (outside the narrow zone of the disclosure of private facts), but I suspect many people perceive it as an intrusion, and some judges may agree. The criticism, especially if repeated and seemingly obsessive, may make the targets feel vaguely menaced, even in the absence of constitutionally unprotected true threats of violence.

Now all of this, by itself, cannot save the injunctions from being invalidated on First Amendment grounds, and I think almost no judges would enjoin such speech in a newspaper. Yet for some reason, some judges are willing to enjoin such speech by individuals. Why?

I suspect this flows from three related reasons, both again connected to cheap speech and the democratization caused by the Internet.

[1.] Precisely because newspapers cost money to publish, and try to make money from subscribers or advertisers, they tend to be accountable to their readers and tend to publish what their readers want, in the style the readers want. That a newspaper is printing something itself indicates the likely value of the speech. Even a judge who found the speech loathsome or pointless might have thought twice about imposing his own views in preference to the views of editors and readers. Likewise, if an established political advocacy group thought some speech worth saying, that was evidence that the speech had value to public debate.

[2.] Newspaper speech can have many motives, but the most plausible ones tend to be public-regarding — a desire to inform the public, or to spread a particular perspective about the world. Perhaps a newspaper is just pandering to readers’ tastes, but even that means that they want to entertain or inform readers about something that many readers care about. It’s possible that newspaper writers are just trying to wreak private vengeance, or are irrationally obsessed. But it seems unlikely, especially since such motivations (at least if transparent enough) are likely to lead to market pushback from readers.

And the same is likely true for speech by advocacy groups: whatever a judge might think of their ideology, it seems likely that the speech was motivated by ideology. Even a judge who suspects that base motives are at play (e.g., that a rich publisher is trying to get revenge against a politician or business leader who had frustrated the publisher’s business plans) might be reluctant to enjoin such mainstream speech based on speculation about motive.

But once individuals can easily speak, without having to persuade any intermediary about the worth of their speech, judges are likely to see much more speech that seems pointless and ill-motivated. Motive turns out to be very important under many harassment or stalking statutes, which condemn speech that is said with “the intent to annoy” or with “no legitimate purpose.” Indeed, some courts have taken the view, in government employee speech cases, that speech motivated by purely personal motives is to be treated as on a matter of “private concern,” even when its content would suggest that it’s on a matter of public concern.

Of course, such individual speakers would likely take a different view of the value of the speech, and of their own motives. I suspect that they think they really do have valuable things to say, and that their motives are to inform the public.

Indeed, none of these cases, with the possible exception of Van Valkenburg v. Gjoni, involve speech that would likely have been seen as “purely on a matter of private concern” if it had been published in a newspaper or had been distributed by a political advocacy group. And even Gjoni’s speech, tied as it is to broader discussions of romantic relationships, alleged emotional abuse, and the like, may well be seen as on a matter of public concern — compare, for instance, Bonome v. Kaysen, where a woman’s published book that discussed the sexual details of a past relationship was seen as being enough on a matter of public concern to defeat a disclosure of private facts lawsuit. Explaining how one feels, and who made one feel that way, is an important part of telling the story of one’s life, whether in a memoir or on a blog post.

If I’m right, then some judges just aren’t trusting individual speakers in the newly democratized mass communications system to define what is worth talking about, and to talk about it without being second-guessed about their motivations. Media organizations and political organizations are given latitude to say even things that judges may view as unfair or cruel. But private speakers are sometimes given less latitude — and the judges think that threatening criminal punishment for violating an injunction is the necessary means for stopping such speech.

[3.] When a judge sees an individual defendant’s speech as a campaign of defamation — and indeed thinks that the defendant is obsessed with criticizing the plaintiff, perhaps to the point of irrationality — trying to forbid just defamatory statements may seem futile. The judge may suspect that any future criticism by the defendant of the plaintiff, or perhaps any speech at all about the plaintiff, would just degenerate into further defamation, and a prophylactic prohibition is needed to keep that from happening.

Indeed, remedies law sometimes allows injunctions that go further than the initial violation, even injunctions that forbid behavior that, absent the initial misdeed, would not be tortious. First Amendment law, I think, does not allow such preventative measures when they ban otherwise protected speech based on its content. But judges who view an individual defendant as a dangerous kook may react in ways that they wouldn’t when dealing with an established media outlet.

As I mentioned, I think that such a view is wrong, and that speech outside the traditional First Amendment exceptions (speech that isn’t, for instance, libel or true threats) should remain free even if judges think it’s worthless or ill-intentioned, without regard to the speaker’s identity. But I think these injunctions come about because judges see that everyone can now speak the way that established media and political organization have long spoken — and judges often don’t like it.

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