How Do Americans Spend Their Money, By Generation?
In 2021, the average American spent just over $60,000 a year. But where does all their money go? Unsurprisingly, spending habits vary wildly depending on age.
Overall in 2021, Gen X (anyone born from 1965 to 1980) spent the most money of any U.S. generation, with an average annual expenditure of $83,357.
Gen X has been nicknamed the “sandwich generation” because many members of this age group are financially supporting both their aging parents as well as children of their own.
The second biggest spenders are Millennials with an average annual expenditure of $69,061. Just like Gen X, this generation’s top three spending categories are housing, healthcare, and personal insurance.
On the opposite end of the spectrum, members of Generation Z are the lowest spenders with an average of $41,636. per year. Their spending habits are expected to ramp up, especially considering that in 2022 the oldest Gen Zers are just 25 and still early in their careers.
Similarities Across Generations
While spending habits vary depending on the age group, there are some categories that remain fairly consistent across the board.
One of the most consistent spending categories is housing—it’s by the far the biggest expense for all age groups, accounting for more than 30% of total annual spending for every generation.
Another spending category that’s surprisingly consistent across every generation is entertainment. All generations spent more than 4% of their total expenditures on entertainment, but none dedicated more than 5.6%.
Gen Zers spent the least on entertainment, which could boil down to the types of entertainment this generation typically enjoys. For instance, a study found that 51% of respondents aged 13-19 watch videos on Instagram on a weekly basis, while only 15% watch cable TV.
Differences Across Generations
One category that varies the most between generations and relative needs is spending on healthcare.
As the table below shows, the Silent Generation spent an average of $7,053 on healthcare, or 15.8% of their total average spend. Comparatively, Gen Z only spent $1,354 on average, or 3.3% of their total average spend.
However, while the younger generations typically spend less on healthcare, they’re also less likely to be insured—so those who do get sick could be left with a hefty bill.
The messages are coming in loud and clear today – from the crashing pound, to repudiation of establishment governments in Italy, Sweden and more to come, to Hungarian Prime Minister Orban’s call to end the Sanctions War and do so pronto.
So let’s be clear: Washington’s dunderheaded intervention in the intramural spat between Russia and Ukraine and the accompanying global Sanctions War is the surely the stupidest, most destructive project to arise from the banks of the Potomac in modern times. And the architects of this perfidious folly—Biden, Blinkin, Sullivan, Nuland et. al.—cannot be condemned harshly enough.
After all, this madness is being pursued in the name of abstract policy norms—the rule of law and sanctity of borders—that make Washington a laughing stock. More than any other nation on planet earth (and by a long-shot), it has serially and blatantly violated these standards scores of times in recent decades.
Among other actions, Washington’s interventions in Serbia, Iraq, Afghanistan, Libya, Yemen, Syria, Somalia etc were not only pointless; they were also a self-evident violation of the very rule of law and sanctity of borders upon which Washington now beats its breasts ever more stridently.
Moreover, by wallowing in this unhinged hypocrisy Washington has abandoned every semblance of commonsense as to why this conflict happened in the first place and why it is wholly irrelevant to the national security of the American homeland, or, for that matter, Europe, as well.
The fundamental fact is, aside from the historically short interval of iron-fisted communist rule during the Soviet era, Ukraine had never been a nation-state within its post-1991 happenstance borders. In fact, for upwards of 275 years before 1918 much of its territories were borderlands, vassals and outright provinces of Czarist Russia; and before that constituents of the Polish-Lithuanian Empire and others.
So we are not dealing with the invasion of a long-established, ethnically and linguistically coherent state by its aggressive neighbor, but with the left-over potpourri of separate tongues, territories. economies and histories that were smashed together by brutal communist rulers between 1918 and 1991.
Accordingly, the fast-approaching dark, cold winter of stagflationary collapse in Europe is not being done in heroic defense of the grand principles proffered by Washington and NATO. To the contrary, it amounts to the pointless and grubby business of preserving a vile status quo ante that was confected on the lands north of the Black Sea, not by the ordinary course of historical evolution and nation-state accretion, but by the bloody-hands of Lenin, Stalin and Khrushchev.
In any event, the staggering economic costs for the everyday peoples of Europe in pursuit of such a threadbare and illegitimate purpose is starting to register among the long-suffering victims of Brussels’ elitist rulers. Hence the thunderbolts from the Italian elections this weekend and Viktor Orbán’s parallel appeal to the European Union to lift sanctions and thereby potentially reduce energy prices by half in one swell swoop.
Nor is Orbán the only one calling for an end to sanctions, with Greek Prime Minister Kyriakos Mitsotaki calling for a repeal of Russian sanctions as well. Other political leaders, such as Matteo Salvini, who leads the conservative League party and will be a major force in Italy’s new government, says that Europe needs a “rethink” on Russian sanctions due to the harmful economic effects.
Likewise, the conservative Alternative for Germany (AfD) party has also been pushing for an end to sanctions and an re-opening of the Nord Stream 1 & 2 gas pipelines due to soaring energy costs in Germany. AfD member of the Bundestag, Mariana Harder-Kühnel, for instance, recently echoed Orbán’s call.
“The EU bureaucracy has turned the screw on the sanctions, and now we are paying the bill,” she said.
In this context, the ructions since Friday in the FX market for the pound sterling speak more powerfully than anything else.
The British pound briefly plunged to its lowest level ever early this week, touching $1.0349 during Asian trading hours, breaking through its previous record low of 1985. Moreover, today’s cliff-dive followed a tumble of 3% on Friday, after the new Truss government announced sweeping tax cuts and a massive energy bailout for businesses and individuals.
Likewise, the price of U.K. government debt has fallen in tandem with the pound, with yields rising sharply again today. The 10-year government bond was yielding 4.11%, up 28 basis points from Friday and a staggering 342% from the 0.93% yield of just one year ago.
For want of doubt, here is the path of pound sterling over the last twelve months. That’s a massive thumbs down by the FX markets if there ever was one.
But the relevant point here is not all the Keynesian palaver about the “mistake” of lowering the 45% top income tax rate and removing other disincentives to work and investment that take UK marginal rates as high as 60%. These reductions in the crushing tax rates that Conservative and Labor government alike have erected atop the UK’s lavish Welfare State are long-overdue and will, in fact, stimulate compensatory economic activity.
What’s actually going to destroy the remnants of the UK’s fiscal sustainability is Truss’ utterly foolish plan to freeze all energy prices for all citizens and businesses at a cost of upwards of $200 billion per year or 5% of GDP. But that’s neocon insanity run amok.
If London wants to relieve its consumers of onerous energy prices and utility bills it only need follow Orban’s advice and terminate its Sanctions War against Russian energy, food and other commodity exports. And it wouldn’t cost the Exchequer a dime.
That is to say, the pound’s crash ought to be a general wake-up call to Europe and Washington, too. By declaring war on the productive and peaceful commerce with Russia that previously prevailed, Europe’s leaders—-especially the new government of United Kingdom—have sacrificed their own prosperity and the living standards of their citizens in behalf of a prodigiously corrupt, anti-democratic regime in Kiev that is dedicated to preserving intact nothing more noble than the dead hand of the Soviet Presidium.
Or as our friend James Howard Kunstler rightly summarized:
Let us agree that the place called Ukraine was never any of America’s business. For centuries we ignored it, through all the colorful cavalry charges to-and-fro of Turks and Tatars, the reign of the dashing Zaporozhian Cossacks, the cruel abuses of Stalin, then Hitler, and the dull, gray Khrushchev-to-Yeltsin years. But then, having destroyed Iraq, Afghanistan, Libya, Somalia and sundry other places all on a great hegemonic lark, the professional warmongers of our land and their catamites in Washington made Ukraine their next special project. They engineered the 2014 coup in Kiev that ousted the elected president, Mr. Yanyukovich, to set up a giant grifting parlor and international money-laundromat. The other strategic aim was to prepare Ukraine for NATO membership, which would have made it, in effect, a forward missile base right up against Russia’s border. Because, well, Russia, Russia, Russia!
So we return to the question at hand: Every Ukrainian presidential election since 1991 has revealed a nation radically split between pro-Russian populations in the east and south and anti-Russian nationalists in the center and west. When the mailed fist of communist rule was removed, in fact, Ukraine became a territory yearning to be partitioned into more amenable jurisdictions of governance.
For instance, here is the results of the 2010 election that put a pro-Russian politician in the president’s office and at length gave rise to Washington’s putsch during the Maiden uprising that soon drove the country into civil war.
The above map barely does justice to the actual figures. In many of the yellow Tymoshenko-supporting areas the vote was 80% or higher in favor of the latter’s nationalist candidacy, while in much of the blue area the pro-Russian Yanukovych won be similar massive pluralities.
Yet this wasn’t a one-time fluke of short-term electoral politics: It was actually the recrudescence of the manner in which the fake nation of Ukraine was put together during the last three centuries.
Prior to the end of WWI, there was no Ukrainian state. Like the artificial and unsustainable polities of Czechoslovakia and Yugoslavia, which were confected by self-serving politicians at Versailles (especially the domestic vote seeking Woodrow Wilson), Ukraine was a product of geopolitical engineering—in this case by the new rulers of the Soviet Union.
Indeed, the historical provenance of “Ukraine” can be described in a nutshell. What was to become Ukraine joined Russia in 1654 when Bohdan Khmelnitsky, a Hetman of the Zaporozhian Host, petitioned Russian czar Alexey to accept the Zaporozhian Host into Russia. That is to say, Imperial Russia spawned the latter day polity of Ukraine by annexing into its service the fearsome Cossack Warriors who inhabited its central region.
The army and a small territory then under Hetman control was called “u kraine,” which means in Russian “at the edge”, a term that had originated in the twelfth century to describe lands on the border of Russia.
During the next 250 years the expansionist Czars annexed more and more of the adjacent territory, designating the eastern and southern regions as “Novorussiya” (New Russia), which territories included Catherine the Great’s purchase of Crimea from the Ottomans in 1783.
That is to say, at the time of America’s own independence the heart of today’s Ukraine was ruled by the long arm of Czarist autocracy.
After the Bolshevik revolution, of course, the map changed radically. In 1919 Lenin created the socialist state of Ukraine on part of the territory of the former Russian Empire. Ukraine officially became the Ukrainian People’s Republic with the capital of Kharkov in 1922 (moved to Kiev in 1934).
Accordingly, the new communist state swallowed up Novorussiya per the eastern and southern portions of the green area in the map below, including Donetsk, and Lugansk regions, as well as the Kherson and Zaporizhzhia regions bordering the Sea of Azov and the Black Sea that are the sites of today’s Russia-sponsored succession referendums.
Then in 1939, as a result of the infamous Nazi-Soviet Pact, Stalin annexed the eastern territories of Poland, as designated by the yellow areas of the map. Thus, the historic territory of Galicia and the Polish city of Lvov were incorporated into Ukraine by the joint decree of Stalin and Hitler.
In June of 1940, Stalin next annexed Northern Bukovina (brown area) from Romania. And then at the Yalta conference in 1945, upon Stalin’s insistence to Churchill and Roosevelt, the Hungarian Carpathian Ruthenia was incorporated into the Soviet Union and added to Ukraine.
Taken together, these Stalinist seizures are now known as Western Ukraine, the people’s of which understandably do not cotton to things Russian. At the same time, the 85% Russian-speaking population inhabiting the purple area (Crimea) was gifted to Ukraine by Khrushchev in 1954 for the very reason of extending his own accession to the communist dictatorship.
Nevertheless, after the disintegration of the Soviet Union, Ukraine inherited these communist-confected borders within which there were upwards of 40 millions Russians, Poles, Hungarians, Romanians, Tartars and countless lesser nationalities—all trapped in a newly declared country in which they didn’t especially wish to reside.
Indeed, the reason that the hapless state of “Ukraine” needs relief in partition, not a war to preserve the handiwork if Czars and Commissars, was well summarized by Alexander G. Markovsky in the American Thinker:
Today’s Ukrainian civil war is thus greatly exacerbated by the fact that unlike pluralistic societies such as the USA, Canada, Switzerland, and Russia, which are tolerant of different cultures, religions, and languages, Ukraine is not. Unsurprisingly, devotion to pluralism proved not to be her forte. Even though the Kiev regime had no historical roots in the real estate it inhabited, it imposed Ukrainian rules and the Ukrainian language on non-Ukrainian people after declaring independence.
As a result, pro-Russian sentiments – ranging from the recognition of the official status of the Russian language to outright secession – have always been prevalent in Crimea and Eastern Ukraine. Western Ukraine has always gravitated toward its Polish, Romanian, and Hungarian roots. Emphatically anti-Russian, Poland may not miss this strategic opportunity to re-acquire its land and avenge the humiliation inflicted by the Yalta Conference.
The West’s insistence on maintaining the status quo of the Ukrainian borders established by Lenin, Stalin and Hitler exposes the disconnect between strategic doctrine and moral principles.
Indeed, Poles make no secret of their ambitions. Polish President Andrzej Duda, recently declared, “For decades, and maybe, God forbid, for centuries, there will be no more borders between our countries – Poland and Ukraine. There will be no such border!”
Romania is not far behind, especially in light of many inhabitants of former Northern Bukovina already carrying Romanian passports.
The territory of Ukraine is a mosaic of other people’s lands. If we want to stop this insane war and ensure peace in Europe, instead of calling Russia’s sponsored referendum in Eastern Ukraine a sham, we should conduct an honest referendum in all the disputed territories under the auspices of the UN and let the people decide what government they want.
Needless to say, partition of the fake state of Ukraine is not remotely on Washington’s mind. After all, it would remove the latest neocon reason for spreading the blessings of Forever Wars to the fairest parts of the planet.
Exxon CEO Pushes Back On Biden’s Plan To Limit Fuel Exports
First it was Chevon’s CEO reaching out to warn President Biden about the administration’s action again oil companies. Now, it’s Exxon warning the President about limiting fuel exports.
Exxon is “pushing back” against the idea of reducing U.S. fuel exports, telling President Biden’s Energy Department this week that such actions would lead to continued volatility in oil prices globally, and at the pump domestically, according to a new report by the Wall Street Journal. Exxon said that “the oil industry should not slow fuel shipments in favor of putting more in storage tanks”, the Journal report says.
Exxon argued that cutting exports would lead to a glut in the Gulf Coast which would then, in turn, prompt output cuts.
The concerns were laid out in a letter this week signed by Exxon Chief Executive Darren Woods. Woods wrote: “Continuing current Gulf Coast exports is essential to efficiently rebalance markets—particularly with diverted Russian supplies. Reducing global supply by limiting U.S. exports to build region-specific inventory will only aggravate the global supply shortfall.”
Biden’s Energy Department responded by pointing out parts of the country that have oil and gas levels near five year lows heading into hurricane season. A spokesperson said: “The administration has impressed upon the oil and gas industry that it must do more to ensure fair prices and adequate supply for all Americans, while meeting the needs of our allies.”
Woods argued that the East Coast had 59.3 million barrels of total gasoline and ethanol in storage, 1% lower than usual for the time of year. He also noted that demand for gasoline though June was about 9% lower than the three year average prior to Covid. He noted that pipelines that carry the fuel from the Gulf Coast to the East Coast are full and that there aren’t enough ships to move U.S. made fuel to the Northeast.
“Free market incentives remain the most efficient way for the industry to address these problems,” Woods said.
The pushback follows a letter by Energy Secretary Jennifer Granholm in August, where she urged oil companies to slow exports in order to refill stocks in the East Coast.
She wrote: “The most effective way to resolve this issue without having to deploy emergency actions is for industry to prioritize building inventories during this critical window. The data clearly show there has not been sufficient progress in building inventories ahead of peak hurricane season.”
She also took the step of threatening to limit exports if oil companies didn’t follow suit, stating that the Biden administration would consider “additional federal requirements or emergency measures.”
In September, after discussing the idea with industry executives, she said the Biden administration was not “currently weighing any restrictions”, the Journal report noted.
Since being named special counsel in October 2020, John Durham has investigated or indicted several unscrupulous anti-Trump informants. But he has spared the FBI agents who handled them, raising suspicions he’s letting investigators off the hook in his waning investigation of misconduct in the Russiagate probe.
In recent court filings, Durham has portrayed the G-men as naive recipients of bad information, tricked into opening improper investigations targeting Donald Trump and obtaining invalid warrants to spy on one of his advisers.
But as the cases against the informants have gone to trial, defense lawyers have revealed evidence that cuts against that narrative. FBI investigators look less like guileless victims and more like willing partners in the fraudulent schemes Durham has brought to light.
Notwithstanding his reputation as a tough, intrepid prosecutor, Durham has made excuses for the misconduct of FBI agents, providing them a ready-made defense against any possible future prosecution, according to legal experts.
“Durham was supposed to clean up the FBI cesspool, but it doesn’t look like he’s going to be doing that,” said Paul Kamenar, counsel to the National Legal and Policy Center, a Washington watchdog group. “He started with a bang and is ending with a whimper.”
In the latest example, critics point to a flurry of pretrial motions in Durham’s case against former FBI informant Igor Danchenko, the primary source for the false claims regarding Trump and Russia advanced by the opposition research paid for by Hillary Clinton’s campaign known as the Steele dossier.
Next month, Danchenko faces charges he lied to FBI investigators multiple times about the sourcing of the information in the dossier, which the bureau used to secure wiretap warrants to spy on a former Trump campaign adviser. Relying on Danchenko’s reporting, the FBI claimed that the adviser, Carter Page, was a Russian agent at the center of “a well-developed conspiracy of cooperation” between Trump and the Kremlin to steal the 2016 presidential election.
“The defendant was providing them with false information” as part of “a concerted effort to deceive the FBI,” Durham alleged in a recent filing with the U.S. District Court in Alexandria, Va., where the trial is scheduled to be held Oct. 11.
Had agents known Danchenko made up the allegations, Durham asserted, they might have asked more questions about the dossier and not relied on it to swear out the ultra-invasive Foreign Intelligence Surveillance Act warrants to electronically monitor Page, a U.S. citizen who was never charged with a crime.
But Danchenko’s legal team points out that he turned over an email to the FBI during a January 2017 meeting with agents and analysts that indicated a key dossier subsource may have been fictionalized. Stuart Sears, one of Danchenko’s attorneys, argued earlier this month in a motion to dismiss the charges that investigators “essentially ignored” any concerns they may have had about Danchenko’s sourcing, because they continued to renew the FISA warrants based upon it. Therefore, he argued, any lies his client allegedly told them were inconsequential, making them un-prosecutable under federal statutes requiring such false statements to have a “material” impact on a federal proceeding.
While Durham did not dispute the FBI’s apparent complicity in the fraud, he waved it aside as immaterial to the case at hand. “The fact that the FBI apparently did not identify or address these inconsistencies is of no moment,” he said in his filing.
At the same time, Durham acknowledged agents allowed the fabrications to contaminate their wiretap warrants – noting they were “an important part of the FISA applications targeting Carter Page.” But he stopped short of blaming the FBI, even for incompetence. According to Durham, the nation’s premiere law enforcement agency was misled by a serial liar and con man.
“He’s painting it as though the FBI was duped when the FBI was more than willing to take the initiative and go after Trump,” Kamenar said, adding that though Danchenko may have been a liar, he was a useful liar to FBI officials and others in the Justice Department who were pursuing Trump.
The special prosecutor’s indifference to the FBI’s role in the scandal is more remarkable in light of what Danchenko admitted in his January 2017 interviews with the FBI. He told investigators that much of what he reported to Steele was “word-of-mouth and hearsay,” while some was cooked up from “conversation that [he] had with friends over beers,” according to a declassified FBI summary of the interviews, which took place over three days. He confessed the most salacious allegations were made in “jest.”
Still, the FBI continued to use Danchenko’s claims of a “well-developed conspiracy of cooperation” between Russia and Trump to convince the FISA court to allow investigators to continue to surveil Page, whom the FBI accused of masterminding the conspiracy based on Danchenko’s bogus rumors. Agents even swore in FISA court documents reviewed by RealClearInvestigations that Danchenko was “truthful and cooperative.”
The combination of Danchenko reporting a “conspiracy” and the FBI vouching for his credibility persuaded the powerful FISA court to continue to authorize wiretapping Page as a suspected Russian agent for almost a year. In addition to collecting his emails and text messages in 2017, agents were able to sweep up all his prior communications with Trump officials from 2016.
If the FBI were skeptical of Danchenko, it didn’t show it. The next month, the bureau put him on its payroll as a confidential human source, or CHS, making him part of the bureau’s untouchable “sources and methods” sanctum and thereby protecting him and any documents referencing him from congressional and other outside scrutiny. It made him a paid informant in spite of knowing Danchenko was a potential Russian spy threat who could be feeding federal agents disinformation. The FBI had previously opened a counterespionage probe of Danchenko from 2009 to 2011, and as his lawyers pointed out in a recent court filing, agents who were part of the case probing Trump/Russia ties, codenamed Crossfire Hurricane, “were well aware of the prior counterintelligence investigation” when they were supposedly conned by their informant.
“It stretches credibility to suggest that anything else would have caused the FBI to be more suspicious of Mr. Danchenko’s statements and his potential role in spreading disinformation than the very fact that he was previously investigated for possibly engaging in espionage on behalf of Russia,” Sears said. “Armed with that knowledge, however, the FBI nevertheless persisted” in using him as a source – while never informing the FISA court of the prior investigation.
The FBI didn’t terminate Danchenko until October 2020, the month after the Senate declassified documents revealing the FBI had investigated him as a Russian agent. It also happened to be the same month Durham was appointed special counsel.
On Oct. 19, 2020, then-Attorney General Bill Barr tapped Durham “to investigate whether any federal official, employee, or any other person or entity violated the law in connection with the intelligence, counter-intelligence, or law-enforcement activities directed at the 2016 presidential campaigns, individuals associated with those campaigns, and individuals associated with the administration of President Donald J. Trump, including but not limited to Crossfire Hurricane and the investigation of Special Counsel Robert S. Mueller, III.”
So far, Durham has focused on the “any other person” part of his mandate. Federal officials and employees appear to be getting a pass.
Though Durham prosecuted former FBI lawyer Kevin Clinesmith in August 2020, when he was acting as a U.S. attorney, he did not initiate the case. Rather, it was referred to him by Justice Department Inspector General Michael Horowitz, who first exposed how Clinesmith had doctored exculpatory evidence in the Page warrant process. Even though Clinesmith admitted forging a CIA email to make it look like Page never helped the agency monitor Russia, when in fact he did and clearly wasn’t acting as a Russian agent, Durham failed to put him behind bars. Clinesmith was sentenced to 12 months’ probation and 400 hours of community service, which as RCI first reported, the registered Democrat satisfied by researching and editing articles for his favorite liberal weekly newspaper in Washington.
Kamenar said the Clinesmith case was a “bad omen” for how Durham would handle dirty FBI agents. He pointed out that the prosecutor could have charged Clinesmith with the more serious crime of altering a CIA document, but instead negotiated a deal letting him plead to the lesser offense of lying to a government agency, which Kamenar called “a garden variety process crime.” And “now he’s got his law license back.”
Clinesmith worked closely on the case with FBI Supervisory Intelligence Analyst Brian Auten, who was singled out by Horowitz in a 2019 report for cutting a number of corners in the dossier verification process and even allowing information he knew to be incorrect slip into the FISA affidavits and mislead the court.
Auten met with Danchenko at the bureau’s Washington field office and helped debrief him about the dossier in January 2017. And he wrote the official FBI summary of those meetings, which noted Danchenko “contradicted” himself several times. Auten learned firsthand that the information Danchenko passed to Steele was nothing more than bar gossip, and that his “network of subsources” was really just a circle of drinking buddies. Also at those meetings, the analyst received an Aug. 24, 2016, email revealing that Danchenko never actually communicated with Sergei Millian, the Belarusian-born American businessman whom he had identified as his main source of Trump/Russia connections – the all-important, albeit apocryphal, “Source E” and “Source D” of the dossier. It turns out Danchenko attributed the critical “conspiracy of cooperation” allegation the FBI cited as probable cause for all four FISA warrants to this made-up source, meaning the cornerstone evidence of suspected Trump-Russia espionage was also made up.
What’s more, Auten learned that though Danchenko was born in Russia, he was not based there and had no access to Kremlin insiders. On the contrary, he confirmed that Danchenko had been living in Washington and had previously worked for the Brookings Institution, a Democratic Party think tank whose president at the time was tied to Clinton.
Yet Auten and his Crossfire team led the FISA court to believe Danchenko was “Russian-based” – and therefore presumably more credible. They used this same description in all four FISA affidavits, including the two renewals that followed the January 2017 meetings with Danchenko.
Internal FBI emails from two months later revealed that Auten knew that using the term “Russian-based” was deceptive. While tasked with helping review Crossfire documents requested by Congress, including FISA applications, he worried about the description and whether it should be corrected. He discussed the matter with Clinesmith. But the falsehood reappeared in subsequent FISA applications.
It was also in January 2017 that Danchenko revealed to Auten and his FBI handlers that one of his subsources was his childhood friend Olga Galkina, whom he said supplied him the rumor that former Trump lawyer Michael Cohen traveled to Prague during the campaign to hatch a plot with Kremlin officials to hack Clinton campaign emails.
The FBI already knew from intelligence reports that Cohen had not, as the dossier claimed, traveled to Prague to conspire in the alleged Russian hacking of Democrats, or for any other reason.
On Jan. 12, 2017, Auten and his Crossfire teammates received a CIA report that warned the Cohen rumor was likely part of a Russian disinformation campaign. The agency had discovered no such Prague meeting took place after querying foreign intelligence services, shooting a major hole in the dossier. The CIA report should have led the Crossfire team to treat any allegations sourced to Galkina with caution. But on the same day, the FBI got its FISA wiretap on Page renewed based on another groundless claim by Galkina – this one alleging the Trump aide secretly met with top Kremlin officials in Moscow to discuss removing U.S. sanctions. The falsehood showed up in two more FISA applications, which alleged “Russia’s efforts to influence U.S. policy were likely being coordinated between the RIS [Russian Intelligence Services] and Page, and possibly others.”
Galkina also had a relationship with Charles Dolan, a Clinton adviser who figures prominently in the Danchenko case Durham is prosecuting.
It turns out Dolan was one of the sources for the infamous “pee-tape” allegation about the Kremlin supposedly having blackmail evidence of Trump consorting with prostitutes at the Ritz-Carlton in Moscow, which has been debunked as another dossier hoax. But according to Durham, Danchenko tried to conceal Dolan’s role in the dossier from the FBI. The special prosecutor argued that the deception deprived FBI agents and analysts information that would have helped them evaluate “the credibility, reliability and veracity” of the dossier. He said if they had known Dolan was a source, they might have, among other things, sought emails Dolan and Danchenko exchanged exposing their Ritz-Carlton hoax.
“Had the defendant truthfully told the FBI that Dolan played a role in providing certain information for the Steele reports the FBI might well have interviewed and/or collected such emails from Dolan,” Durham speculated.
In addition, the prosecutor said, investigators might have learned of Dolan’s “involvement in Democratic politics” and “potential bias as a source for the Steele reports.” Except that they already knew about Dolan and his politics – as well as his involvement in the dossier. It’s also likely they already had his emails.
In another interview with Danchenko about his dossier sources, which took place June 15, 2017, FBI agents asked Danchenko if he knew Dolan and whether he was “contributing” to the Steele reports. Though Danchenko acknowledged he knew Dolan, he denied he was a source. Agents didn’t ask any follow-up questions. (They also never sought to charge him with making false statements to federal agents.)
How did the FBI know to ask about Dolan? Because he was well-known to the bureau’s Russia counterintelligence agents as a businessman who frequently traveled to Moscow and met with Kremlin insiders. But more importantly, his friend Galkina was under FISA surveillance as a suspected Russian spy at the time, according to declassified records. The FBI was collecting not only Galkina’s emails, but also those of Dolan and Danchenko, all of whom regularly communicated in 2016 – which suggests that at the time the FBI asked Danchenko about Dolan, it had access to those emails and was reviewing them.
This may explain why, as defense lawyer Sears noted, “the FBI never asked Mr. Danchenko about emails or any other written communications with Dolan” – and why it never interviewed Dolan.
While Durham acknowledged that the FBI knew about Dolan’s troubling ties at the time and neglected to dig deeper, he said he’s not bothered by the oversight. “The fact that the FBI was aware that Dolan maintained some of these relationships and failed to interview Dolan is of no moment,” he maintained dismissively in a court filing. All that matters, he suggested, is that the FBI was lied to.
One of those emails was particularly alarming. In an Aug. 19, 2016, email to Dolan, Danchenko made it clear he was compiling dirt on Trump and his advisers and sought any rumor, no matter how baseless and scurrilous. He solicited Dolan, specifically, for “any thought, rumor, allegation” on former Trump campaign manager Paul Manafort.
Such emails called into question the veracity of the whole dossier and further tainted the credibility of Danchenko’s “network of subsources.” But on June 29, 2017 – two weeks after the FBI asked about Dolan – the FBI renewed the FISA wiretap on Trump adviser Page based on, once again, the dubious dossier.
From its wiretapping of Galkina, moreover, Auten and others at the FBI who sorted through such FISA collections would have seen communications showing her strong support for Hillary Clinton, and how Galkina was expecting political favors in exchange for spreading dirt on Trump. In an August 2016 email to a friend, Galkina expressed hopes that Dolan would help her score a State Department job if Clinton won election.
It was a major red flag. But like all the others, the FBI blew right past it. Agents continued to vouch for Danchenko as “truthful” and his subsources as reliable, and continued to cite Galkina’s fabrications in FISA renewals.
Under FISA rules, the FBI had a duty to “immediately inform” the secret court of any misstatements or omissions, along with any “necessary corrections” of material facts sworn in affidavits for warrants. But the FBI failed to correct the record, even after it became obvious it had told the court falsehoods and hid exculpatory evidence. In August 2017, agents finally got around to interviewing Galkina, who confessed the dossier allegations attributed to her were “exaggerated,” according to the Horowitz report.
Scammed by the Alfa Bank Scam?
Last year, Durham also painted the FBI as a victim of the 2016 political machinations of two other anti-Trump informants – Michael Sussmann and Rodney Joffe, who conveyed to investigators false rumors about Trump allegedly setting up a secret hotline with the Kremlin through Russia-based Alfa Bank.
Durham charged Sussmann, a Washington lawyer who represented the Democratic National Committee and the Clinton campaign, with lying to the FBI’s top lawyer James Baker when he told him he was coming in with the tip – outlined in white papers and thumb drives – all on his own and not on behalf of Democrats and Clinton, whom he was billing for the Trump-Alfa “confidential project.”
“Sussmann’s false statement misled the FBI general counsel and other FBI personnel concerning the political nature of his work and deprived the FBI of information that might have permitted it more fully to access and uncover the origins of the relevant data and technical analysis, including the identities and motivations of Sussmann’s clients,” Durham maintained in the indictment.
But evidence emerged at the trial of Sussmann, who was acquitted, that bureau officials already knew the “political nature” of the tip and where the data came from, but withheld the information from field agents so they would continue investigating Trump through the election.
For example, in a Sept. 22, 2016, email describing the “special project,” an FBI official in Washington stated that “Counsel Baker provided [Supervisory Special Agent] Joe Pientka with 2 thumb drives and identified they were given to him by the DNC.”
“Everybody at the FBI actually thought the data came from a political party,” Sussmann lawyer Sean Berkowitz argued, according to the trial transcript. “The (case) file is littered with references to the DNC.”
But Durham kept offering explanations for why FBI brass bit on the politically tainted tip, opening a full field investigation based on it.
“Had Sussmann truthfully disclosed that he was representing specific clients [the Clinton campaign], it might have prompted the FBI general counsel to ask Sussmann for the identity of such clients, which, in turn, might have prompted further questions,” Durham argued.
“In addition, absent Sussmann’s false statement, the FBI might have taken additional or more incremental steps before opening an investigation,” he added. “The FBI also might have allocated its resources differently, or more efficiently, and uncovered more complete information about the reliability and provenance of the purported data at issue.”
Headquarters, however, did know the identity of the clients. Problem was, they blinded agents in Chicago, where a cyber unit was assigned to the case, to the fact that the source for the information was Sussmann and Joffe – a federal cyber-security contractor who was angling for a job in a Clinton administration. (A longtime FBI informant, Joffe was terminated last year after he was exposed as the ringleader of the Alfa Bank scam.)
“You were not allowed to speak to either the source of the information, the author of the white paper, or the person who provided the source of the information and the data?” Berkowitz asked Chicago-based FBI agent Curtis Heide during the trial, according to transcripts.
“Correct,” Heide replied.
Another Chicago investigator was led to believe the tip came into the bureau as a referral from the “U.S. Department of Justice.”
Still, field agents were able to debunk it within two weeks.
The FBI was not fooled by the hoax, yet nonetheless went along with it for the next four months. The case wasn’t formally closed until Jan. 18, 2017, just two days before Trump was inaugurated. But then it was soon reopened after Clinton operatives again approached the FBI – as well as the CIA – with supposedly new evidence, which also proved false.
“Comey and crew kept the hoax alive,” former FBI counterintelligence lawyer Mark Wauck said, referring to then-FBI Director James Comey. They welcomed any predication that allowed them to open investigations on Trump, he added.
Pientka testified that Comey was “fired up” about the tip, despite the fact nothing had been corroborated. Comey even held senior-level meetings on the Alfa investigation in his 7th floor office. (Pientka, who led the “close-hold” investigation from headquarters, also helped supervise the Crossfire Hurricane probe.)
Ironically, no one knew better that Sussmann was a Democratic operative with an agenda than Baker – the official Durham claimed was the direct victim of the scam.
Baker, a fellow Democrat, was a close friend of Sussmann, who had his own badge to get past security at the Hoover Building. Sussmann had Baker’s personal cell number and Baker cleared his busy schedule to meet with him within hours of Sussmann calling to discuss his tip. Baker was well aware that Sussmann was representing the DNC, because Sussmann entered the building numerous times during the 2016 campaign to talk with top FBI officials about the alleged DNC hack by Russia. In fact, Sussmann had just visited headquarters with a delegation from the DNC on Aug. 12, 2016 – several weeks before he approached Baker with the bogus Alfa tip. They were there to pressure the FBI into concluding Russian intelligence was behind the “hacking” of DNC emails.
“I understood he had been affiliated with the Democratic Party, but that he had come representing himself,” Baker testified during the trial.
Why didn’t he tell investigators about Sussmann? “I didn’t want to share his name because I didn’t want to color the investigation,” he said. “I didn’t want to color it with politics.”
In his closing argument, Durham prosecutor Andrew DeFilippis told jurors the FBI’s conduct was “not relevant.”
“Ladies and gentlemen, you’ve seen that the FBI didn’t necessarily do everything right here. They missed opportunities. They made mistakes. They even kept information from themselves,” he said. “That is not relevant to your evaluation of the defendant’s lie.”
Judicial Watch President Tom Fitton complained Durham and his team have been acting more like apologists for the FBI than potential prosecutors of the FBI.
“The FBI leadership knew full well the Clinton gang was behind the Alfa Bank-Russia smears of Trump,” he said. “Durham tried to pretend (the) FBI was a victim (when) it was a co-conspirator.”
Wauck agreed. “The FBI-as-victim narrative was a bit of a legal fiction that Durham deployed for the purposes of the trial,” he said. “The reality that emerged is that the FBI’s top management was complicit in the Russia hoax that Sussmann was purveying.”
Folding Up His Tent
Durham was first tasked with looking into the origins of the Russiagate probe in May 2019, before his formal appointment as special counsel in 2020. Trump and Republicans have expressed disappointment that after a total of more than three years of investigation, he has not prosecuted any top former FBI officials, including Comey and Andrew McCabe, who signed some of the FISA affidavits, or Peter Strzok, the biased leader of the Crossfire Hurricane probe who assured McCabe’s lawyer in an August 2016 text that “we’ll stop” Trump from becoming president. None has received a target letter. In recent months, McCabe and Strzok have gone on CNN, where they work as paid contributors, and smugly bashed Durham for running a “partisan” investigation, while at the same time gloating he’s held the FBI up to be more of a victim than a culprit.
“Comey and Strzok and McCabe have gotten a free ride out of all this,” Kamenar said.
Also, Durham went easy on Baker, another top FBI official, even after he held back key evidence from the special prosecutor before the Sussmann trial, a blatant lack of cooperation that may have cost Durham a conviction in the case. Comey’s general counsel has received “favorable treatment,” Wauck observed.
Baker, who reviewed and OK’d the FISA applications, never told Durham about a damning text message he received from Sussmann on his cellphone. Durham had already indicted Sussmann for lying to Baker, and he could not use Sussmann’s smoking-gun message – “I’m coming on my own – not on behalf of a client or company” – during the trial to convince jurors he was guilty of lying about representing the Clinton campaign. Legal analysts said it was slam-dunk evidence that would have sealed his case.
Baker testified he didn’t turn over the text to Durham because no one asked for it. He proved a reluctant witness on the stand against his old pal Sussmann.
“I’m not out to get Michael and this is not my investigation. This is your investigation,” he told DeFilippis during questioning. DeFilippis has since stepped down to take a job in the private sector.
(Demonstrating the incestuous nature of the Beltway, Baker also happens to be an old friend of Bill Barr, who hired Durham. Barr hired Baker as his deputy when he ran Verizon’s legal shop in 2008.)
In another sign Durham has not lived up to his billing as an aggressive prosecutor, FBI Director Christopher Wray suggested in recent Senate testimony that Durham’s team has not interviewed all of the Crossfire members still employed at the bureau. In lieu of face-to-face interviews, he said Durham’s investigators have reviewed transcripts of interviews of the agents previously conducted by the Office of Professional Responsibility, the FBI’s in-house disciplinary arm.
Recent published reports say Durham is in the process of closing up shop and completing a final report on his findings by the end of the year. Republicans have promised to seize on the report if they win control of the House in November and take back the gavel to key oversight committees on the Hill, along with subpoena power.
Some former colleagues who have worked with Durham and are familiar with his inquiry blame COVID-19 for his relatively few prosecutions and lackluster record. They say pandemic-related shutdowns in 2020 and 2021 set back his investigation by limiting travel, interviews, and grand jury hearings. As a result, they say, the clock ran out on prosecuting a number of potential crimes. The last FISA warrant, which according to the court was illegally obtained, was approved June 29, 2017, which means the five-year federal statute of limitations for that crime expired months ago.
Though Durham hinted in the Sussmann case about investigating a broader “conspiracy” or “joint venture,” there are few signs pointing to such a massive undertaking. Bringing a “conspiracy to defraud the government” charge, naming multiple defendants, would require Durham adding staff and office space and beefing up his budget by millions of dollars, the former colleagues said.
According to expenditure statements, Durham continues to operate on a shoestring budget with a skeletal staff compared with his predecessor Mueller’s robust operation, which indicted 34 people. And one of the two grand juries Durham used to hear evidence has expired. It recently wrapped up work, apparently without handing down new indictments (though some could be under seal).
“If Durham were building toward an overarching indictment alleging a corrupt conspiracy between the Clinton campaign and the FBI to deceive the court, he would not be charging people with lying to the FBI,” former federal prosecutor Andrew McCarthy said.
If there are any investigations still open after Durham retires, they could be handled by U.S. attorneys, the sources said. At least one of Durham’s prosecutors works as a trial lawyer in the U.S. Attorney’s Office in D.C.
According to a court exhibit, Joffe “remains a subject” in the Sussmann-related investigation into alleged attempts by federal contractors to defraud the government with false claims about Trump and Russia. Joffe invoked his Fifth Amendment right not to testify after receiving a grand jury subpoena and has not cooperated with requests for documents. His lawyer did not return phone calls and emails.
The Special Counsel’s Office did not respond to requests for comment.
The FBI declined comment for this article, but issued a statement last year saying it “has cooperated fully with Special Counsel Durham’s review.”
“Globalists Are Marching Us Relentlessly Toward Nuclear Armageddon,” Warns Former Senator
Fears of nuclear war are increasing across the West as Russia mobilizes hundreds of thousands of troops and declares annexation of parts of Ukraine. Meanwhile, President Volodymyr Zelensky announced that Ukraine is applying for membership in NATO. These two developments could be the most significant escalation since the war’s start.
Today’s developments are a sobering reminder that nuclear war threats are mounting. Retired Virginia State Senator and retired Marine Col. Richard Black addressed members of the US Congress in an open letter on Tuesday about “globalists are marching us relentlessly toward this nuclear Armageddon.”
Black pointed out:
There would have been no war had we not overthrown the democratically-elected government of Ukraine by violently ousting President Yanukovych in 2014. We promoted war by flooding Ukraine with massive arms shipments afterwards.
The former senator said, “the US could have achieved peace by simply pressing Ukraine to implement the 2014 Minsk Peace Agreements which it had signed, establishing a clear framework for settling outstanding issues peacefully. Ukraine promised to implement the Minsk agreements, but chose instead to make war on the Donbass for the next seven years.”
He said NATO could’ve sought peace but chose war instead.
NATO had ample opportunity for peace but deliberately chose war. The US realized that, with Russia’s back to the wall, it would have no choice to but to attack. In 2007, US Ambassador to Russia William Burns pointedly warned that movement toward absorbing Ukraine into NATO might well trigger war between Ukraine and Russia. Nonetheless, the Obama administration overthrew the Ukrainian president and flooded in weapons, knowing that doing so would trigger war.
Black said billionaire elites who have an interest in the region are making “war profits even if it means gambling the lives of hundreds of millions of people across the globe.”
“Should we annihilate the world’s population to intervene in a border war where the US has no vital national interest?” the former senator asked.
Black called for an immediate end to this war by making Ukraine a neutral, non-aligned state, “just as we did during the Cold War with Austria in 1955.”
But it appears the former senator’s plea to avoid further conflict went unheard after Zelensky’s declared intent to apply for expedited NATO membership as President Putin proclaimed the annexation of 15% of Ukraine.
Based on Article 5, any acceptance of Ukraine into NATO would automatically trigger a Russia-West world war (WWIII).
In a speech Friday, Putin said the US created a “precedent” by using nuclear weapons against Japan during WW2.
Last week, Navy Admiral Charles A. Richard – currently serving as the US Strategic Command chief — warned that “possible direct armed conflict with a nuclear-capable peer” could be ahead.
Here’s the former senator’s open letter to lawmakers on Capitol Hill:
I’m writing about this both because it strikes me as an interesting example of what litigants sometimes try to do (and occasionally succeed), and also because I thought our readers ought to see what the litigant accused me of—perhaps some of you may agree with her—and see my response. That’s particularly so because some readers might view this as influencing my general views on harassment restraining order cases, which I’ll doubtless blog about more in the future; I should note, though, that I’ve been writing and litigating about these matters extensively long before this petition was filed against me (see, e.g., this 2013 article and this 2021 article, plus too many blog posts and briefs to list here).
Several months ago, I wrote about a frequent litigant, in connection with a federal case of hers in in which (1) she was first allowed to proceed pseudonymously but then (2) was depseudonymized by the judge after evidence related to her past cases had emerged. I used her name in connection with that case, as the judge had, and also drew connections (based on public records) between that case and other cases that she had been litigating pseudonymously.
Several weeks ago, the litigant filed Doe v. Volokh, No. 22STRO05198 (L.A. Superior Ct.), a petition for a “harassment restraining order” in California court. She stated in her declaration that,
On July 11, 2022 I received two harassing phone calls from different people, calling me cunt, bitch, slut, lying on men etc and indicating they would rape and kill me. After the second call I immediately shut down my phone and keep it off. I was confused because I did not know those people. I was terrifying and fearful for my life. Later I figured that Eugene Volokh (Volokh) has published my personal information online and the death threats came from his readers/haters. His publication includes incomplete facts and portrays me in a false light. He states that I was convicted of several crimes but he leaves out the fact that I am currently seeking post-conviction relief due to wrongful conviction. I previously received several court orders to protect my real name as a rape victim. He publishes my real name associated with all these cases. His publication effectively makes all those protective orders void. Further, he alleges that I had made similar rape accusations against other people which again portrays me in a false light.
(Note that the “personal information” was just her name and the cases she was involved in; I didn’t publish any further information about her, such as her phone number or the like.) Her legal argument was basically this:
On July 12, 2022 I made contact with Volokh and asked him to respect the court orders and my privacy and take remedial action. He refused to do so even after I informed him of the death threats I received. He alleged it was his right to free speech and cited Florida Star v. B.J.F. , 491 U.S. 524 (1989). His reliance is inappropriate in the following aspects:
First, given “the sensitivity and significance of the interests presented in clashes between First Amendment and privacy rights” the Court refused to accept invitations to “hold broadly that truthful publication may never be punished consistent with the First Amendment.” The Court “emphasized each time that we were resolving this conflict only as it arose in a discrete factual context.” The Florida Star v. B. J. F, 491 U.S. 524, 530-536 (1989).
The Court has also stated that due to the highly significant interests it does “not rule out the possibility that, in a proper case, imposing civil sanctions for publication of the name of a rape victim might be so overwhelmingly necessary to advance these interests.” Id. at 537. The Court concluded that it did “not hold that truthful publication is automatically constitutionally protected.” Id. at 541. The facts in Florida Star provide a vivid example of the dangerous consequences that disclosing a victim’s name may possibly have.
“The right of free speech is not without limitations. It is always to be exercised with due regard for the rights of others.” Seven Up Bottling Co. v. Grocery Drivers Union, 233 P.2d 617, 619 (Cal. Ct. App. 1951). “In California, speech that constitutes ‘harassment’ within the meaning of section 527.6 is not constitutionally protected, and the victim of the harassment may obtain injunctive relief.” Huntingdon Life Sciences, Inc. v. Stop Huntingdon Animal Cruelly USA, Inc. (2005) 129 Cal.App.4th 1228, 1250. See also Brekke v. Wills (2005) 125 Cal.App.4th 1400, 1410-1413 [Holding that song lyrics, if used to harass and ridicule, are not protected speech; affirming injunction where the defendant wrote three vitriolic letters to a third party with the intention that they would be discovered and read by plaintiff.]
Second, Florida Star was a local weekly newspaper who published the name of the victim of a sexual assault. The publication of a weekly newspaper was a one-time publication to only local residents. Florida Star’s publication was limited as to time and scope of readers. Florida Star did not continue to publish the victim’s name every week. However, Volokh’s publication is online, freely available to the entire world, and forever. Anyone in Europe, Asia, or America can have access to his publication. Volokh’s publication makes me a vulnerable target of worldwide haters. His publication invites worldwide haters to threaten, stalk, and commit violence against me. “Conduct or speech that is physically threatening, harassing, intimidating, or assaultive is not constitutionally protected.” People ex Rel. Gallo v. Acuna, 14 Cal.4th 1090, 1144 (Cal. 1997).
Further, I revealed to very limited people about the incidents but now anyone, my relatives, friends, co-workers, or even acquaintance can easily find out the incidents that subject me to social stigma. Even hundred years later his publication will be still available to the entire world on the internet. The harm caused by Volokh’s publication is much greater than the harm caused by Florida Star’s publication.
Third, Florida Star’s publication of the name of the Victim of a sexual assault was not intended to cause harm. Unlike Florida Star, Volokh is well aware of the harm that has caused me and all the protective orders for the purposes to protect my identity but he refused to take action to cease the harm. Therefore, Volokh’s continuing publication of my identity is intended to cause harm of a life time.
Fourth, B.J.F. did not have specific court orders to protect her identity but I have several valid court orders to protect my identity as a rape Victim. Volokh has no legal authority or any right to void those court orders by publishing my identify and the case information all together.
Fifth, “[I]n many contexts, the scope and application of the state constitutional right of privacy is broader and more protective of privacy than the federal constitutional right of privacy as interpreted by the federal courts. [Citations.]” American Academy of PediaIrics v. Lungren (1997) 16 Cal.4th 307, 326-327. Even in the context of prevention of secrecy in government, “the public interest in protecting the privacy of noise complainants and in preventing a chilling effect on complaints, clearly outweighs the public interest in disclosure of complainants’ names…” City of San Jose v. Superior Court, Santa Clara, 74 Cal.App.4th 1008, 1012 (Cal. Ct. App. 1999). Volokh’s publication of my identity is a rape of my right to privacy.
In Melvin v. Reid, 112 Cal.App. 285 (Cal. Ct. App. 1931), the defendants made a motion picture of the early life of the plaintiff, who had been acquitted in a notorious murder case. It truthfully depicted her as a prostitute at that time, and used her true maiden name; all facts were drawn from the public record. The court held that while the facts of her prior life were not private, the use of her name was actionable. The court reasoned that the publication by respondents of the unsavory incidents in the past life of appellant after she had reformed, coupled with her true name, was not justified by any standard of morals or ethics known to us and was a direct invasion of her inalienable right guaranteed to her by our Constitution, to pursue and obtain happiness. Id. at 292. See also Varo v. L. A. Cnty. Dist. Attorney’s Office, 473 F. Supp. 3d 1066 (C.D. Cal. 2019) (Holding the county violated the victims’ constitutional right to informational privacy by disclosing their information to the perpetrator, who subsequently threatened and shot one of the victim’s family members.) …
The real threat and danger from haters is unpredictable. It is much worse than the violence directly from Volokh. If the violence is solely and directly from Volokh at least I know how to prepare myself. But it is impossible for me to prepare for the threat and violence from continuingly growing haters. For instance, A, B, and C read Volokh’s publication this month, but next month D, E, and F will read Volokh’s publication. Each day and each month there will be new readers/haters to read Volokh’s publication. Even I change my phone number and residence this month to avoid the threats and violence from A, B, and C, I cannot keep changing phone number and residence next month to avoid the threats and violence from D, E, and F. And this will continue for the rest of my life. It is impossible to prepare for the threats and violence when I do not know when, where, and from which haters….
Even though I keep my phone off most of the time I still continue to receive threatening phone calls once I tum on my phone and I also receive harassing voice mails. At the end of July 2022 I was forced to move out of my prior residence for safety concern. However, I don’t know how long this can keep me safe.
In a response to my anti-SLAPP motion, Doe added:
[II.] PETITIONER HAS DEMONSTRATED A PROBABILITY OF PREVAILING ON THE CLAIM
Free speech considerations should be connected to the underlying purpose of constitutional governance. When deciding difficult cases involving competing rights, judges should examine (1) whether unencumbered expression is likely to cause constitutional, statutory, or common law harms; (2) whether the restricted expression has been historically or traditionally protected; (3) whether a government policy designed to benefit the general welfare weighs in favor of the regulation; (4) the fit between the disputed speech regulation and the public end; and (5) whether some less restrictive alternative exists for achieving it.
Both Florida Star v. B.J.F. (1989) 491 U.S. 524 and Cox Broadcasting Corp. v. Cohn, 420 U.S. 469 (1975) chose to take a narrow view and limited their holdings. Importantly, the Supreme Court expressly refused to address the broader question of whether the truthful publication of facts obtained from public records can ever be subjected to civil or criminal liability. Cox Broadcasting Corp. v. Cohn, 420 U.S. 469, 491 (1975). The controlling case is not Cox Broadcasting, but Smith v. Daily Mail Publishing Co., 443 U.S. 97 (1979). The Court concluded that the correct rule, formulated in Daily Mail, is that “[[i]]f a newspaper lawfully obtains truthful information about a matter of public significance then state officials may not constitutionally punish publication of the information, absent a need to further a state interest of the highest order.” Florida Star v. B.J.F. (1989) 491 U.S. 524, 533. The Daily Mail formulation reflects the fact that it is a limited set of cases indeed where, despite the accessibility of the public to certain information, a meaningful public interest is served by restricting its further release by other entities, like the press. Id. 535. The instant case falls within that limited set of cases.
It is undisputed that Petitioner is not a celebrity that would draw public attention. Initially there was no undesired publicity of her until Volokh’s massive online publication. Volokh does not carefully select his viewers or readers and his publication is available indefinitely to the entire world. Volokh’s massive publication serves the purpose of incitement to entice haters to stalk, harass, threaten, and commit violence against Petitioner. It is also undisputed that there is no other person or entity that draws unnecessary public attention to Petitioner as Volokh does. Social welfare sometimes trumps personal desire, allowing for laws against incitement, fighting words, antitrust regulations, patents, and other types of restraints that do not implicate core constitutional concerns.
The relief sought by Petitioner furthers at least three closely related interests: the right to be free from unwarranted and undesired publicity and the right to be free from harassment and violence of victims of sexual offenses; the physical safety of such victims, who may be targeted by haters; and the goal of encouraging victims of such crimes to report these offenses without fear of unnecessary exposure.
Volokh has known very well what the consequences of his massive publication would be. It was eminently foreseeable given his experience as he cited Florida Star v. B.J.F. (1989) 491 U.S. 524….
[III.] BALANCING TEST TIPS IN PETITIONER’S FAVOR
This court must balance the private and societal interest in Volokh’ speech against any competing constitutional concerns that would be implicated. See, e.g., Robins v. Pruneyard Shopping Center (1979) 23 Cal.3d 899, 910-911 [balancing signature gatherers’ “wish to disseminate ideas” with concern “that these activities do not interfere with normal business operations” and “property or privacy rights” of occupants and owners.]
The Supreme Court’s use of a balancing test to resolve conflicting press and privacy interests was restated by Justice Rehnquist in the Daily Mail case:
Historically, we have viewed freedom of speech and of the press as indispensable to a free society and its government. But recognition of this proposition has not meant that the public interest in free speech and press always has prevailed over competing interests of the public. “Freedom of speech thus does not comprehend the right to speak on any subject at any time,” [Citation], and “the press is not free to publish with impunity everything and anything it desires to publish.” [Citation]. While we have shown a special solicitude for freedom of speech and of the press, we have eschewed absolutes in favor of a more delicate calculus that carefully weighs the conflicting interests to determine which demands the greater protection under the particular circumstances presented. [Citation]
The relief Petitioner seeks has little or minimal impact on Volokh’s speech. However, as a result of Volokh’s continuing massive publication, Petitioner has been forced to endure malicious and cruel abuse at the hands of ruthless and unscrupulous people. On a regular basis, Petitioner has faced harassment, verbal assault, stalking, death threats, constant fear and more. Under the particular circumstances presented here Petitioner deserves greater protection….
And she sought the following order:
Attachment 8C—Other Personal Conduct Orders
The effect of the following ban on Eugene Voloky’s [sic] speech is minimal. People ex rel. Gallo v. Acuna, 14 Cal.4th 1090, 1121 (Cal. 1997). The ban on his speech costs him nothing but his speech costs me lifetime health and safety.
I ask the court to order Eugene Volokh to do any of the following things:
Remove any remarks, comments‚ or references from any publicly available documents or articles authored by Eugene Voloky that connect Protected Party’s real name with rape or sexual assault;
Remove any remarks, comments, or references from any publicly available documents or articles authored by Eugene Voloky that connect the Protected Party’s real name with the cases in which she has received a protective order to proceed under a pseudonym;
Cease publishing any remarks, comments, or references that connect the Protected Party with rape or sexual assault;
Cease drawing public attention to the Protected Party’s real name associated with rape or sexually assault.
I responded with the following response and anti-SLAPP motion, which the Court just granted this morning. (I also moved to oppose Doe’s attempt to proceed pseudonymously; that will be heard Oct. 25, but because that motion is pending, I don’t mention Doe’s name in the excerpts below, though I don’t believe I am legally forbidden from doing so.)
You’ll note that the motion predominantly focuses on why I am legally entitled to publish this material even if a tiny fraction of my readers acted illegally because of what they read. But I should also note that I’m skeptical that any of the calls that Doe received actually stemmed from my law review article (the only place I mentioned her full name) or from my blog posts (where I mentioned her last name, which appears to be a fairly common Chinese name). Doe may well have enemies from various sources, including her past lawsuits. But I have no reason to believe that any enemies emerged from, or were enabled by, my law review article and my blog posts.
Note also that Doe’s petition is not precise on which of my writings she was concerned about, and an earlier, procedurally unsuccessful attempt on her part to get such an order seemed to focus just on the article; but I assumed that she was also discussing my blog posts (since I didn’t want to be accused of understating in my motion my past references to her). And, finally, many thanks to Ken White (@PopeHat), who took the time to talk to me about this matter and offer me his sage counsel.
Here’s my motion:
Petitioner Jane Doe—a frequent unsuccessful litigant—is asking this Court to impose unconstitutional prior restraint to prevent a law professor from writing about important, publicly available cases about pseudonymity. That demand is meritless, and this Court should grant Prof. Volokh’s anti-SLAPP motion to strike it. In the alternative, this Court should treat this Motion and the evidence herein as Prof. Volokh’s opposition to the Petition and, on these grounds, deny the Petition….
[I.] Introduction
Eugene Volokh is a law professor who has recently been writing about pseudonymous litigation, including in (1) the law journal article The Law of Pseudonymous Litigation (2022) 73 Hastings L.J. 1353 …, and (2) many blog posts …. Jane Doe is a frequent pseudonymous litigator …. [Details omitted. -EV] Naturally, Volokh found [some of Doe’s past cases] and Jane Doe’s litigation behavior more broadly to be relevant to his research…. He … mentioned Doe by her full name … in his Hastings article, and by her last name in three blog posts …. This is clearly constitutionally protected, and is akin to what scholars and reporters often publish.
Now Doe is trying to abuse the § 527.6 harassment restraining order process to suppress Volokh’s constitutionally protected writings. That is unauthorized by § 527.6 and forbidden by the First Amendment. Doe’s petition is based entirely on Volokh’s constitutionally protected speech—which is equivalent for First Amendment purposes to a Los Angeles Times article that mentions someone’s name. And Doe also seeks an injunction requiring the removal of constitutionally protected speech, and forbidding future instances of constitutional protected speech.
None of Volokh’s writings involves any threat of violence by Volokh. Doe’s claim is that she believes, with no proof, that two people made harassing calls to her after reading Volokh’s work. But that cannot justify restricting speech, any more than this Court could order the Times to take down an article that has caused some readers to react with hostility to a person mentioned in the article….
[II.] Argument
[A.] The Anti-SLAPP statute, § 425.16, applies to this proceeding
This Court should strike Doe’s complaint under the anti-SLAPP statute (Cal.Code Civ.Proc. § 425.16). The anti-SLAPP statute applies to § 527.6 petitions (except for purely interim TROs) as well as to other civil cases. (SeeHuntingdon Life Scis., Inc. v. Stop Huntingdon Animal Cruelty USA, Inc. (2005) 129 Cal.App.4th 1228, 1239; Thomas v. Quintero (2005) 126 Cal.App.4th 635, 641-42.) …
Section 425.16 calls for “a two-step process for determining whether an action is a SLAPP” (Navellier v. Sletten (2002) 29 Cal.4th 82, 88), and thus whether the action must be struck:
First step: “First, the court decides whether the defendant has made a threshold showing that the challenged cause of action is one arising from protected activity. ‘A defendant meets this burden by demonstrating that the act underlying the plaintiffs cause fits one of the categories spelled out in section 425.16, subdivision (e).'”
Second step: “If the court finds that such a showing has been made, it must then determine whether the plaintiff has demonstrated a probability of prevailing on the claim.”
“[P]laintiffs’ burden as to the second prong of the anti-SLAPP test is akin to that of a party opposing a motion for summary judgment.” Navellier v. Sletten (2003) 106 Cal. App. 4th 763, 768. “In opposing an anti-SLAPP motion, the plaintiff cannot rely on the allegations of the complaint, but must produce evidence that would be admissible at trial.” (HMS Capital, Inc. v. Lawyers Title Co. (2004) 118 Cal.App.4th 204, 212.)
Volokh’s writings are covered by § 425.16 under the first step, because they constitute “act[s]” “in furtherance of” Volokh’s “right of … free speech,” under three separate clauses:
They are “writing[s] made in connection with an issue under consideration or review by a legislative, executive, or judicial body” (§ 425.16(e)(2)).
They are “writing[s] made in a place open to the public or a public forum in connection with an issue of public interest” (§ 425.16(e)(3)).
They are “conduct in furtherance of the exercise of … the constitutional right of free speech in connection with a public issue or an issue of public interest” (§ 425.16(e)(4)).
And because Volokh’s articles are constitutionally protected, and in any event not covered by § 527.6, Doe cannot carry her step-two burden of showing “a probability that [she] will prevail on the claim” (§ 425.16(b)(1)).
[A.] Step one: Volokh’s articles are presumptively protected by § 425.16
California “courts have repeatedly held that reports of judicial proceedings,” including on a “Web site,” “are an exercise of free speech within the meaning of section 425.16.” (Traditional Cat Assn., Inc. v. Gilbreath (2004) 118 Cal.App.4th 392, 397.) This is because publications about proceedings before government bodies constitute “writing[s] made in connection with an issue under consideration or review by a legislative, executive, or judicial body” (§ 425.16(e)(2)). Thus, for example,
An article reporting on “statements made during deposition or … at [a] custody trial” is covered by § 425.16 (Sipple v. Found. for Nat. Progress (1999) 71 Cal.App.4th 226, 238).
Articles about a dispute among property owners “and the related hearings held by the … Board of Supervisors …, the county’s enforcement action, and [the] responsive federal suit” are covered by § 425.16, because they are “clearly united by dependence on or relation to the official executive, legislative, and judicial actions they described.” (Lafayette Morehouse, Inc. v. Chron. Publ’g Co. (1995) 37 Cal.App.4th 855, 863, superseded by statute on other grounds, Damon v. Ocean Hills Journalism Club (2000) 85 Cal.App.4th 468, 478.)
Articles reporting on an executive branch audit of a private entity are “in connection with an issue being reviewed by an official proceeding” and thus covered by § 425.16. (Braun v. Chron. Publ’g Co. (1997) 52 Cal.App.4th 1036, 1047 [cited approvingly in Briggs v. Eden Council for Hope & Opportunity (1999) 19 Cal.4th 1106, 1116-17].)
And once a defendant shows that the cause of action arises from such “writing[s] made in connection with an issue under” governmental consideration, there is no need for a plaintiff to satisfy “any separate ‘public issue’ requirement.” (Briggs, supra, 19 Cal.4th at 1113.)
Likewise, Volokh’s Hastings Law Journalarticle—which reports on what has happened in hundreds of cases, including [Doe’s case]—is “in connection with an issue under consideration or review by a … judicial body,” as are Volokh’s blog posts that mention [Doe’s case] and similar cases. Indeed, [Doe’s case] remains “under consideration or review” both by the District of Colorado and, as to the pseudonymity question, by the Tenth Circuit.
Volokh’s blog posts and law review articles are also covered by § 425.16(e)(3) [and § 425.16(e)(4)]. [Details omitted. -EV]
Naturally, while discussing this public issue, Volokh’s writings mention both the holdings of the cases and the identities of specific litigants whose actions led to those decisions. But that is an inherent feature of a rich, detailed discussion of a matter, just as a newspaper article about a lawsuit would naturally include accurate reporting on who was involved in the lawsuit.
[B.] Step two: Doe cannot “establish[]” “a probability that [she] will prevail on the claim” …
[1.] Volokh’s writings are protected by the First Amendment, and thus cannot be enjoined or form the basis for a § 527.6 injunction
Volokh’s writings cover public record information about Doe’s lawsuits, and are thus protected by the First Amendment. “‘[T]he States may not impose sanctions on the publication of truthful information contained in official court records open to public inspection.'” (Gates v. Discovery Commc’ns, Inc. (2004) 34 Cal.4th 679, 688 (quoting Cox Broadcasting Corp. v. Cohn (1975) 420 U.S. 469, 495.) This extends to rape victims’ names, when they appear in government-provided documents. (Florida Star v. B.J.F. (1989) 491 U.S. 524, 526.) And it applies to reporting both of long-past proceedings and of “current judicial proceedings” (Gates, supra, 34 Cal.3d at 695 (cleaned up)) …. Judge Bradley S. Phillips thus correctly refused to grant a temporary order in Doe’s earlier, abortive petition against Volokh, writing, “The alleged conduct of the person in (2) is likely protected free speech under the First Amendment.” (Notice of Court Hearing, Voloky, supra, at 2.)
Nor can this right be overcome by claims of “privacy”: “[A]n invasion of privacy claim based on allegations of harm caused by a media defendant’s publication of facts obtained from public official records of a criminal proceeding is barred by the First Amendment.” (Gates, supra, 34 Cal.3d at 696.) Volokh is a media defendant, as noted in Part I; but in any event, the First Amendment equally protects media and nonmedia speakers. (See, e.g., Bartnicki v. Vopper (2001) 532 U.S. 514, 525 n.8 [rejecting media/nonmedia distinction in invasion of privacy case]; Miller v. Nestande (1987) 192 Cal.App.3d 191, 200 n.7 [likewise, in a libel case]; Obsidian Finance Group, LLC v. Cox (9th Cir. 2014) 740 F.3d 1284, 1291 [likewise; “a First Amendment distinction between the institutional press and other speakers is unworkable”].)
Indeed, Gates expressly overruled the contrary reasoning in a leading earlier invasion of privacy case, Briscoe v. Reader’s Digest Ass’n, Inc. (1971) 4 Cal.3d 529. (Gates, supra, at 697, fn. 9.) And it thus implicitly overruled Melvin v. Reid (1931) 112 Cal.App. 285, on which Briscoe had relied (4 Cal.3d at 534), and on which Doe relies, Declaration of Jane Doe [Doe Decl.] at 3-4. (See also Catlett v. Teel (Wash.Ct.App. 2020) 477 P.3d 50, 53 [setting aside an “antiharassment protection order” because it imposed “an unconstitutional content-based restriction” on the respondent’s speech and “an unconstitutional prior restraint,” to the extent that it covered respondent’s publishing material drawn from “public records”].)
Doe alleges that she has “several valid court orders to protect [her] identity as a rape victim,” and that “Volokh has no legal authority or any right to void those court orders by publishing my identity and the case information all together.” Doe Decl. at 3. Presumably she is referring to the fact that, in some of the cases in which she participated, the court had allowed her to participate pseudonymously. But Volokh is unaware of any pseudonymity orders in any of the cases cited above that even purport to bind third parties like him.
Indeed, even if the protective orders in other cases did seek to bind third parties, they could not do so. “Every [i]njunction and [r]estraining [o]rder” “binds only” “the parties” and their agents and others “who are in active concert or participation” with them. (Fed. R. Civ. P. 65(d).) The same is true for protective orders—”a protective order generally does not bind a non-party,” at least unless “the non-party … agree[d] to be bound by the order.” (State ex rel. Thomas v. Grant (Ariz.Ct.App. 2009) 213 P.3d 346, 347, 350 [expressly rejecting the view that “a non-party that comes into possession of information it knows is covered by a protective order is bound by the order not to disseminate the information just as a party to the litigation would be bound”].)
A court order cannot “prevent [the media] … or anyone else from disseminating the substance of information already in the public domain.” Tavoulareas v. Washington Post Co. (D.D.C. 1986) 111 F.R.D. 653, 660. Indeed, even a party “may disseminate the identical information covered by the protective order as long as the information is gained through means independent of the court’s processes.” Seattle Times Co. v. Rhinehart (1984) 467 U.S. 20, 34. It is even clearer that Volokh—a non-party to those cases—may freely use information about the plaintiff’s identity that he obtained from the public records in other cases. A protective order must “not restrict the dissemination of information obtained from other sources.” Anderson v. Cryovac, Inc. (1st Cir. 1986) 805 F.2d 1, 14.
Doe also in passing alleges that Volokh “portrays [her] in a false light,” because “[h]e states that [Doe] was convicted of several crimes but he leaves out the fact that [Doe is] currently seeking post-conviction relief due to wrongful conviction” (Doe Decl. at 1). Of course people convicted of crimes are free to claim they were innocent, and are free to seek post-conviction relief so arguing, even after their convictions have been affirmed on appeal. But there is no legal principle requiring someone who mentions a conviction to also mention that it is being challenged in a state or federal habeas proceeding.
Likewise, Doe states that Volokh “alleges that [she] had made similar rape accusations against other people which again portrays me in a false light” (Doe Decl. at 1). But public record documents do suggest that it indeed “appears that [Doe] had made similar accusations,” Volokh, supra, 73 Hastings L.J. at 1370, see Doe v. Newsom (C.D.Cal. Mar. 26, 2021) No. 2:20-cv-04525, at *2 (discussing such accusations); Volokh, supra, 1370 fn. 75 (citing sources indicating that the plaintiff in Doe v. Newsom is the Doe in this case). And in any event, the harassment restraining order process is not intended to be a remedy for allegations of isolated assertions that place someone in a false light.
[2.] Volokh’s writings do not lose their First Amendment protection simply based on speculation that some readers acted improperly after having read the writings
A writer’s First Amendment rights do not disappear even if (as Doe alleges) two readers react to published material with harassment or even threats or violence—or else any newspaper article that casts a person in a negative light would have to be removed if a few people get angry enough as a result. Indeed, even when a film leads to outright violence, it cannot be subject even to after-the-fact civil liability (and therefore, still more clearly, cannot have its continued showing be enjoined):
[W]hen speech … arouse[s] violent reaction on the part of the lawless, the first obligation of government is to maintain the peace and enforce the law, and not to silence or punish the speaker. Were this not the rule, all speech would be subject to the “heckler’s veto.” … [T]here are people who will react violently to movies, or other forms of expression, which offend them, whether the subject matter be gangs, race relations, or the Vietnam war. It may, in fact, be difficult to predict what particular expression will cause such a reaction, and under what circumstances. To impose upon the producers of a motion picture the sort of liability for which plaintiffs contend in this case would, to a significant degree, permit such persons to dictate, in effect, what is shown in the theaters of our land. (Bill v. Superior Ct. (1982) 137 Cal.App.3d 1002, 1008-09 [citation omitted].)
(See also McCollum v. CBS, Inc. (1988) 202 Cal.App.3d 989, 1002 [holding likewise as to a lawsuit based on music by Ozzy Osbourne that allegedly led to a 19-year-old listener’s suicide].) What is true of films is equally true of law review articles and articles on magazine web sites.
To be sure, speech that tends to cause illegal conduct can indeed be punished if it fits within the narrow exception for “incitement” (Bill, supra, at 1006-07; McCollum, supra, at 1000). But that requires a showing that the speech constituted “advocacy of the use of force or of law violation” and was “directed to inciting or producing imminent lawless action” and was “likely to incite or produce such action.” (Brandenburg v. Ohio (1969) 395 U.S. 444, 447; NAACP v. Claiborne Hardware Co. (1982) 458 U.S. 886, 927-28 [applying Brandenburg as a limit on civil liability, where it was alleged that some listeners criminally attacked people who had been denounced in speech distributed by the NAACP].) Volokh’s writings did not advocate lawless action; they were not directed to producing such action; they were not directed to producing imminent lawless action; and they were not likely to produce such imminent lawless action. (Doe merely speculates that the two calls she received were prompted by the callers’ reading Volokh’s law review article—the only publication that mentions her full name; and certainly there was no reason to think, when the Hastings Law Journal article was published, that such calls were likely to be imminently caused by that publication.)
[3.] Volokh’s articles are not “harassment” under § 527.6
Doe thus has no likelihood of succeeding on her § 527.6 claim, and thus cannot satisfy her second-step burden under § 425.16, because Volokh’s writings are categorically protected by the First Amendment. And Doe also cannot satisfy her burden because Volokh’s writings are categorically excluded from the statutory definition of “harassment” in § 527.6(b) (emphasis added):
(1) “Course of conduct” is a pattern of conduct composed of a series of acts over a period of time, however short, evidencing a continuity of purpose … . Constitutionally protected activity is not included within the meaning of “course of conduct.”
(3) “Harassment” is unlawful violence, a credible threat of violence, or a knowing and willful course of conduct directed at a specific person that seriously alarms, annoys, or harasses the person, and that serves no legitimate purpose. The course of conduct must be that which would cause a reasonable person to suffer substantial emotional distress, and must actually cause substantial emotional distress to the petitioner.
This is so for four reasons:
“Constitutionally protected activity is not included within the meaning of ‘course of conduct'”; as explained above, Volokh’s article and posts were constitutionally protected.
Volokh’s writings were not “directed at” Doe; they merely mentioned her name as one part of their coverage of the law of pseudonymous litigation. The article and two posts mentioned Doe and her cases only incidentally; the remaining post focused on [one of Doe’s cases], but mentioned Doe’s last name only as part of a long post that consisted mostly of excerpts from the case.
The writings served the eminently “legitimate purpose” of discussing cases on pseudonymous litigation, and the particular litigation behavior that led to the decisions in those cases.
Volokh’s own “course of conduct”—publishing a law journal article and three blog posts—would not “cause a reasonable person to suffer substantial emotional distress.” If Doe received harassing phone calls, those callers’ conduct might cause a reasonable person substantial emotional distress. But the calls were not part of Volokh’s own “course of conduct”: they came from completely different people whose identities are unknown to Volokh, and their “purpose” was entirely different from Volokh’s purpose of discussing the law of pseudonymous litigation. Certainly Doe can point to no “clear and convincing evidence” (527.6(i)) that there was any “continuity of purpose” between Volokh’s writings and the harassing phone calls.
[4.] Doe’s petition seeks an unconstitutional prior restraint
Doe’s petition must thus be struck under § 425.16 even apart from the unconstitutional remedies she seeks, because Volokh’s writings cannot form the basis of any § 527.6 order. But Doe’s requested remedies highlight the unsoundness of her position. Doe asks (Petition att. 8c) for an order that Volokh
Remove any remarks, comments‚ or references from any publicly available documents or articles authored by Eugene Voloky [sic] that connect Protected Party’s real name with rape or sexual assault;
Remove any remarks, comments, or references from any publicly available documents or articles authored by Eugene Voloky that connect the Protected Party’s real name with the cases in which she has received a protective order to proceed under a pseudonym;
Cease publishing any remarks, comments, or references that connect the Protected Party with rape or sexual assault;
Cease drawing public attention to the Protected Party’s real name associated with rape or sexual[] assault.
This would mean that Volokh would be barred from, for instance, discussing or excerpting the federal District Court opinion in [Doe’s case], supra, which discussed Doe’s allegations of sexual assault, explained why the Court had depseudonymized the case, and mentioned Doe’s full name. That case is also now on appeal to the Tenth Circuit, supra p. 3; if the Tenth Circuit affirms, and discusses the underlying facts, then Volokh would be barred from discussing that appellate opinion—indeed, even if it is published and becomes binding precedent. Likewise, Volokh would be barred from posting his various filings in that case (where he is participating as intervenor), or his filings in this case.
This would be clearly unconstitutional when applied to anyone. But it would be especially improper to bar a law professor who specializes in the law of pseudonymity from discussing the details of important cases that involve the law of pseudonymity.
California law recognizes that overbroad injunctions are unconstitutional even in cases alleging “harassment.” (See, e.g., Evans v. Evans (2008) 162 Cal.App.4th 1157, 1164, 1169 [holding that “the court’s preliminary injunction prohibiting [defendant] Linda from publishing any ‘false and defamatory’ statements on the Internet is constitutionally invalid,” even when the court’s rationale was a finding of “ongoing harassment activities” by defendant; “[b]ecause there has been no trial and no determination on the merits that any statement made by Linda was defamatory, the court cannot prohibit her from making statements characterized only as ‘false and defamatory'”). And while California courts have allowed injunctions after a trial at which the enjoined speech has been found to be constitutionally unprotected—”once a court has found that a specific pattern of speech is unlawful, an injunctive order prohibiting the repetition, perpetuation, or continuation of that practice is not a prohibited ‘prior restraint’ of speech” (Aguilar v. Avis Rent A Car Sys., Inc (1999) 21 Cal.4th 121, 140)—for the reasons given in Part II.B.1, there can be nothing “unlawful” about reporting on the contents of public records.
Conclusion
A Harassment Restraining Order cannot constitutionally—or consistently with § 527.6—be based on a law review article and blog posts that merely report information from judicial records. Under § 425.16, Volokh is entitled to have Doe’s petition struck. Alternatively, the Court should deny Doe’s petition based on the facts and authorities given above.
I’m writing about this both because it strikes me as an interesting example of what litigants sometimes try to do (and occasionally succeed), and also because I thought our readers ought to see what the litigant accused me of—perhaps some of you may agree with her—and see my response. That’s particularly so because some readers might view this as influencing my general views on harassment restraining order cases, which I’ll doubtless blog about more in the future; I should note, though, that I’ve been writing and litigating about these matters extensively long before this petition was filed against me (see, e.g., this 2013 article and this 2021 article, plus too many blog posts and briefs to list here).
Several months ago, I wrote about a frequent litigant, in connection with a federal case of hers in in which (1) she was first allowed to proceed pseudonymously but then (2) was depseudonymized by the judge after evidence related to her past cases had emerged. I used her name in connection with that case, as the judge had, and also drew connections (based on public records) between that case and other cases that she had been litigating pseudonymously.
Several weeks ago, the litigant filed Doe v. Volokh, No. 22STRO05198 (L.A. Superior Ct.), a petition for a “harassment restraining order” in California court. She stated in her declaration that,
On July 11, 2022 I received two harassing phone calls from different people, calling me cunt, bitch, slut, lying on men etc and indicating they would rape and kill me. After the second call I immediately shut down my phone and keep it off. I was confused because I did not know those people. I was terrifying and fearful for my life. Later I figured that Eugene Volokh (Volokh) has published my personal information online and the death threats came from his readers/haters. His publication includes incomplete facts and portrays me in a false light. He states that I was convicted of several crimes but he leaves out the fact that I am currently seeking post-conviction relief due to wrongful conviction. I previously received several court orders to protect my real name as a rape victim. He publishes my real name associated with all these cases. His publication effectively makes all those protective orders void. Further, he alleges that I had made similar rape accusations against other people which again portrays me in a false light.
(Note that the “personal information” was just her name and the cases she was involved in; I didn’t publish any further information about her, such as her phone number or the like.) Her legal argument was basically this:
On July 12, 2022 I made contact with Volokh and asked him to respect the court orders and my privacy and take remedial action. He refused to do so even after I informed him of the death threats I received. He alleged it was his right to free speech and cited Florida Star v. B.J.F. , 491 U.S. 524 (1989). His reliance is inappropriate in the following aspects:
First, given “the sensitivity and significance of the interests presented in clashes between First Amendment and privacy rights” the Court refused to accept invitations to “hold broadly that truthful publication may never be punished consistent with the First Amendment.” The Court “emphasized each time that we were resolving this conflict only as it arose in a discrete factual context.” The Florida Star v. B. J. F, 491 U.S. 524, 530-536 (1989).
The Court has also stated that due to the highly significant interests it does “not rule out the possibility that, in a proper case, imposing civil sanctions for publication of the name of a rape victim might be so overwhelmingly necessary to advance these interests.” Id. at 537. The Court concluded that it did “not hold that truthful publication is automatically constitutionally protected.” Id. at 541. The facts in Florida Star provide a vivid example of the dangerous consequences that disclosing a victim’s name may possibly have.
“The right of free speech is not without limitations. It is always to be exercised with due regard for the rights of others.” Seven Up Bottling Co. v. Grocery Drivers Union, 233 P.2d 617, 619 (Cal. Ct. App. 1951). “In California, speech that constitutes ‘harassment’ within the meaning of section 527.6 is not constitutionally protected, and the victim of the harassment may obtain injunctive relief.” Huntingdon Life Sciences, Inc. v. Stop Huntingdon Animal Cruelly USA, Inc. (2005) 129 Cal.App.4th 1228, 1250. See also Brekke v. Wills (2005) 125 Cal.App.4th 1400, 1410-1413 [Holding that song lyrics, if used to harass and ridicule, are not protected speech; affirming injunction where the defendant wrote three vitriolic letters to a third party with the intention that they would be discovered and read by plaintiff.]
Second, Florida Star was a local weekly newspaper who published the name of the victim of a sexual assault. The publication of a weekly newspaper was a one-time publication to only local residents. Florida Star’s publication was limited as to time and scope of readers. Florida Star did not continue to publish the victim’s name every week. However, Volokh’s publication is online, freely available to the entire world, and forever. Anyone in Europe, Asia, or America can have access to his publication. Volokh’s publication makes me a vulnerable target of worldwide haters. His publication invites worldwide haters to threaten, stalk, and commit violence against me. “Conduct or speech that is physically threatening, harassing, intimidating, or assaultive is not constitutionally protected.” People ex Rel. Gallo v. Acuna, 14 Cal.4th 1090, 1144 (Cal. 1997).
Further, I revealed to very limited people about the incidents but now anyone, my relatives, friends, co-workers, or even acquaintance can easily find out the incidents that subject me to social stigma. Even hundred years later his publication will be still available to the entire world on the internet. The harm caused by Volokh’s publication is much greater than the harm caused by Florida Star’s publication.
Third, Florida Star’s publication of the name of the Victim of a sexual assault was not intended to cause harm. Unlike Florida Star, Volokh is well aware of the harm that has caused me and all the protective orders for the purposes to protect my identity but he refused to take action to cease the harm. Therefore, Volokh’s continuing publication of my identity is intended to cause harm of a life time.
Fourth, B.J.F. did not have specific court orders to protect her identity but I have several valid court orders to protect my identity as a rape Victim. Volokh has no legal authority or any right to void those court orders by publishing my identify and the case information all together.
Fifth, “[I]n many contexts, the scope and application of the state constitutional right of privacy is broader and more protective of privacy than the federal constitutional right of privacy as interpreted by the federal courts. [Citations.]” American Academy of PediaIrics v. Lungren (1997) 16 Cal.4th 307, 326-327. Even in the context of prevention of secrecy in government, “the public interest in protecting the privacy of noise complainants and in preventing a chilling effect on complaints, clearly outweighs the public interest in disclosure of complainants’ names…” City of San Jose v. Superior Court, Santa Clara, 74 Cal.App.4th 1008, 1012 (Cal. Ct. App. 1999). Volokh’s publication of my identity is a rape of my right to privacy.
In Melvin v. Reid, 112 Cal.App. 285 (Cal. Ct. App. 1931), the defendants made a motion picture of the early life of the plaintiff, who had been acquitted in a notorious murder case. It truthfully depicted her as a prostitute at that time, and used her true maiden name; all facts were drawn from the public record. The court held that while the facts of her prior life were not private, the use of her name was actionable. The court reasoned that the publication by respondents of the unsavory incidents in the past life of appellant after she had reformed, coupled with her true name, was not justified by any standard of morals or ethics known to us and was a direct invasion of her inalienable right guaranteed to her by our Constitution, to pursue and obtain happiness. Id. at 292. See also Varo v. L. A. Cnty. Dist. Attorney’s Office, 473 F. Supp. 3d 1066 (C.D. Cal. 2019) (Holding the county violated the victims’ constitutional right to informational privacy by disclosing their information to the perpetrator, who subsequently threatened and shot one of the victim’s family members.) …
The real threat and danger from haters is unpredictable. It is much worse than the violence directly from Volokh. If the violence is solely and directly from Volokh at least I know how to prepare myself. But it is impossible for me to prepare for the threat and violence from continuingly growing haters. For instance, A, B, and C read Volokh’s publication this month, but next month D, E, and F will read Volokh’s publication. Each day and each month there will be new readers/haters to read Volokh’s publication. Even I change my phone number and residence this month to avoid the threats and violence from A, B, and C, I cannot keep changing phone number and residence next month to avoid the threats and violence from D, E, and F. And this will continue for the rest of my life. It is impossible to prepare for the threats and violence when I do not know when, where, and from which haters….
Even though I keep my phone off most of the time I still continue to receive threatening phone calls once I tum on my phone and I also receive harassing voice mails. At the end of July 2022 I was forced to move out of my prior residence for safety concern. However, I don’t know how long this can keep me safe.
In a response to my anti-SLAPP motion, Doe added:
[II.] PETITIONER HAS DEMONSTRATED A PROBABILITY OF PREVAILING ON THE CLAIM
Free speech considerations should be connected to the underlying purpose of constitutional governance. When deciding difficult cases involving competing rights, judges should examine (1) whether unencumbered expression is likely to cause constitutional, statutory, or common law harms; (2) whether the restricted expression has been historically or traditionally protected; (3) whether a government policy designed to benefit the general welfare weighs in favor of the regulation; (4) the fit between the disputed speech regulation and the public end; and (5) whether some less restrictive alternative exists for achieving it.
Both Florida Star v. B.J.F. (1989) 491 U.S. 524 and Cox Broadcasting Corp. v. Cohn, 420 U.S. 469 (1975) chose to take a narrow view and limited their holdings. Importantly, the Supreme Court expressly refused to address the broader question of whether the truthful publication of facts obtained from public records can ever be subjected to civil or criminal liability. Cox Broadcasting Corp. v. Cohn, 420 U.S. 469, 491 (1975). The controlling case is not Cox Broadcasting, but Smith v. Daily Mail Publishing Co., 443 U.S. 97 (1979). The Court concluded that the correct rule, formulated in Daily Mail, is that “[[i]]f a newspaper lawfully obtains truthful information about a matter of public significance then state officials may not constitutionally punish publication of the information, absent a need to further a state interest of the highest order.” Florida Star v. B.J.F. (1989) 491 U.S. 524, 533. The Daily Mail formulation reflects the fact that it is a limited set of cases indeed where, despite the accessibility of the public to certain information, a meaningful public interest is served by restricting its further release by other entities, like the press. Id. 535. The instant case falls within that limited set of cases.
It is undisputed that Petitioner is not a celebrity that would draw public attention. Initially there was no undesired publicity of her until Volokh’s massive online publication. Volokh does not carefully select his viewers or readers and his publication is available indefinitely to the entire world. Volokh’s massive publication serves the purpose of incitement to entice haters to stalk, harass, threaten, and commit violence against Petitioner. It is also undisputed that there is no other person or entity that draws unnecessary public attention to Petitioner as Volokh does. Social welfare sometimes trumps personal desire, allowing for laws against incitement, fighting words, antitrust regulations, patents, and other types of restraints that do not implicate core constitutional concerns.
The relief sought by Petitioner furthers at least three closely related interests: the right to be free from unwarranted and undesired publicity and the right to be free from harassment and violence of victims of sexual offenses; the physical safety of such victims, who may be targeted by haters; and the goal of encouraging victims of such crimes to report these offenses without fear of unnecessary exposure.
Volokh has known very well what the consequences of his massive publication would be. It was eminently foreseeable given his experience as he cited Florida Star v. B.J.F. (1989) 491 U.S. 524….
[III.] BALANCING TEST TIPS IN PETITIONER’S FAVOR
This court must balance the private and societal interest in Volokh’ speech against any competing constitutional concerns that would be implicated. See, e.g., Robins v. Pruneyard Shopping Center (1979) 23 Cal.3d 899, 910-911 [balancing signature gatherers’ “wish to disseminate ideas” with concern “that these activities do not interfere with normal business operations” and “property or privacy rights” of occupants and owners.]
The Supreme Court’s use of a balancing test to resolve conflicting press and privacy interests was restated by Justice Rehnquist in the Daily Mail case:
Historically, we have viewed freedom of speech and of the press as indispensable to a free society and its government. But recognition of this proposition has not meant that the public interest in free speech and press always has prevailed over competing interests of the public. “Freedom of speech thus does not comprehend the right to speak on any subject at any time,” [Citation], and “the press is not free to publish with impunity everything and anything it desires to publish.” [Citation]. While we have shown a special solicitude for freedom of speech and of the press, we have eschewed absolutes in favor of a more delicate calculus that carefully weighs the conflicting interests to determine which demands the greater protection under the particular circumstances presented. [Citation]
The relief Petitioner seeks has little or minimal impact on Volokh’s speech. However, as a result of Volokh’s continuing massive publication, Petitioner has been forced to endure malicious and cruel abuse at the hands of ruthless and unscrupulous people. On a regular basis, Petitioner has faced harassment, verbal assault, stalking, death threats, constant fear and more. Under the particular circumstances presented here Petitioner deserves greater protection….
And she sought the following order:
Attachment 8C—Other Personal Conduct Orders
The effect of the following ban on Eugene Voloky’s [sic] speech is minimal. People ex rel. Gallo v. Acuna, 14 Cal.4th 1090, 1121 (Cal. 1997). The ban on his speech costs him nothing but his speech costs me lifetime health and safety.
I ask the court to order Eugene Volokh to do any of the following things:
Remove any remarks, comments‚ or references from any publicly available documents or articles authored by Eugene Voloky that connect Protected Party’s real name with rape or sexual assault;
Remove any remarks, comments, or references from any publicly available documents or articles authored by Eugene Voloky that connect the Protected Party’s real name with the cases in which she has received a protective order to proceed under a pseudonym;
Cease publishing any remarks, comments, or references that connect the Protected Party with rape or sexual assault;
Cease drawing public attention to the Protected Party’s real name associated with rape or sexually assault.
I responded with the following response and anti-SLAPP motion, which the Court just granted this morning. (I also moved to oppose Doe’s attempt to proceed pseudonymously; that will be heard Oct. 25, but because that motion is pending, I don’t mention Doe’s name in the excerpts below, though I don’t believe I am legally forbidden from doing so.)
You’ll note that the motion predominantly focuses on why I am legally entitled to publish this material even if a tiny fraction of my readers acted illegally because of what they read. But I should also note that I’m skeptical that any of the calls that Doe received actually stemmed from my law review article (the only place I mentioned her full name) or from my blog posts (where I mentioned her last name, which appears to be a fairly common Chinese name). Doe may well have enemies from various sources, including her past lawsuits. But I have no reason to believe that any enemies emerged from, or were enabled by, my law review article and my blog posts.
Note also that Doe’s petition is not precise on which of my writings she was concerned about, and an earlier, procedurally unsuccessful attempt on her part to get such an order seemed to focus just on the article; but I assumed that she was also discussing my blog posts (since I didn’t want to be accused of understating in my motion my past references to her). And, finally, many thanks to Ken White (@PopeHat), who took the time to talk to me about this matter and offer me his sage counsel.
Here’s my motion:
Petitioner Jane Doe—a frequent unsuccessful litigant—is asking this Court to impose unconstitutional prior restraint to prevent a law professor from writing about important, publicly available cases about pseudonymity. That demand is meritless, and this Court should grant Prof. Volokh’s anti-SLAPP motion to strike it. In the alternative, this Court should treat this Motion and the evidence herein as Prof. Volokh’s opposition to the Petition and, on these grounds, deny the Petition….
[I.] Introduction
Eugene Volokh is a law professor who has recently been writing about pseudonymous litigation, including in (1) the law journal article The Law of Pseudonymous Litigation (2022) 73 Hastings L.J. 1353 …, and (2) many blog posts …. Jane Doe is a frequent pseudonymous litigator …. [Details omitted. -EV] Naturally, Volokh found [some of Doe’s past cases] and Jane Doe’s litigation behavior more broadly to be relevant to his research…. He … mentioned Doe by her full name … in his Hastings article, and by her last name in three blog posts …. This is clearly constitutionally protected, and is akin to what scholars and reporters often publish.
Now Doe is trying to abuse the § 527.6 harassment restraining order process to suppress Volokh’s constitutionally protected writings. That is unauthorized by § 527.6 and forbidden by the First Amendment. Doe’s petition is based entirely on Volokh’s constitutionally protected speech—which is equivalent for First Amendment purposes to a Los Angeles Times article that mentions someone’s name. And Doe also seeks an injunction requiring the removal of constitutionally protected speech, and forbidding future instances of constitutional protected speech.
None of Volokh’s writings involves any threat of violence by Volokh. Doe’s claim is that she believes, with no proof, that two people made harassing calls to her after reading Volokh’s work. But that cannot justify restricting speech, any more than this Court could order the Times to take down an article that has caused some readers to react with hostility to a person mentioned in the article….
[II.] Argument
[A.] The Anti-SLAPP statute, § 425.16, applies to this proceeding
This Court should strike Doe’s complaint under the anti-SLAPP statute (Cal.Code Civ.Proc. § 425.16). The anti-SLAPP statute applies to § 527.6 petitions (except for purely interim TROs) as well as to other civil cases. (SeeHuntingdon Life Scis., Inc. v. Stop Huntingdon Animal Cruelty USA, Inc. (2005) 129 Cal.App.4th 1228, 1239; Thomas v. Quintero (2005) 126 Cal.App.4th 635, 641-42.) …
Section 425.16 calls for “a two-step process for determining whether an action is a SLAPP” (Navellier v. Sletten (2002) 29 Cal.4th 82, 88), and thus whether the action must be struck:
First step: “First, the court decides whether the defendant has made a threshold showing that the challenged cause of action is one arising from protected activity. ‘A defendant meets this burden by demonstrating that the act underlying the plaintiffs cause fits one of the categories spelled out in section 425.16, subdivision (e).'”
Second step: “If the court finds that such a showing has been made, it must then determine whether the plaintiff has demonstrated a probability of prevailing on the claim.”
“[P]laintiffs’ burden as to the second prong of the anti-SLAPP test is akin to that of a party opposing a motion for summary judgment.” Navellier v. Sletten (2003) 106 Cal. App. 4th 763, 768. “In opposing an anti-SLAPP motion, the plaintiff cannot rely on the allegations of the complaint, but must produce evidence that would be admissible at trial.” (HMS Capital, Inc. v. Lawyers Title Co. (2004) 118 Cal.App.4th 204, 212.)
Volokh’s writings are covered by § 425.16 under the first step, because they constitute “act[s]” “in furtherance of” Volokh’s “right of … free speech,” under three separate clauses:
They are “writing[s] made in connection with an issue under consideration or review by a legislative, executive, or judicial body” (§ 425.16(e)(2)).
They are “writing[s] made in a place open to the public or a public forum in connection with an issue of public interest” (§ 425.16(e)(3)).
They are “conduct in furtherance of the exercise of … the constitutional right of free speech in connection with a public issue or an issue of public interest” (§ 425.16(e)(4)).
And because Volokh’s articles are constitutionally protected, and in any event not covered by § 527.6, Doe cannot carry her step-two burden of showing “a probability that [she] will prevail on the claim” (§ 425.16(b)(1)).
[A.] Step one: Volokh’s articles are presumptively protected by § 425.16
California “courts have repeatedly held that reports of judicial proceedings,” including on a “Web site,” “are an exercise of free speech within the meaning of section 425.16.” (Traditional Cat Assn., Inc. v. Gilbreath (2004) 118 Cal.App.4th 392, 397.) This is because publications about proceedings before government bodies constitute “writing[s] made in connection with an issue under consideration or review by a legislative, executive, or judicial body” (§ 425.16(e)(2)). Thus, for example,
An article reporting on “statements made during deposition or … at [a] custody trial” is covered by § 425.16 (Sipple v. Found. for Nat. Progress (1999) 71 Cal.App.4th 226, 238).
Articles about a dispute among property owners “and the related hearings held by the … Board of Supervisors …, the county’s enforcement action, and [the] responsive federal suit” are covered by § 425.16, because they are “clearly united by dependence on or relation to the official executive, legislative, and judicial actions they described.” (Lafayette Morehouse, Inc. v. Chron. Publ’g Co. (1995) 37 Cal.App.4th 855, 863, superseded by statute on other grounds, Damon v. Ocean Hills Journalism Club (2000) 85 Cal.App.4th 468, 478.)
Articles reporting on an executive branch audit of a private entity are “in connection with an issue being reviewed by an official proceeding” and thus covered by § 425.16. (Braun v. Chron. Publ’g Co. (1997) 52 Cal.App.4th 1036, 1047 [cited approvingly in Briggs v. Eden Council for Hope & Opportunity (1999) 19 Cal.4th 1106, 1116-17].)
And once a defendant shows that the cause of action arises from such “writing[s] made in connection with an issue under” governmental consideration, there is no need for a plaintiff to satisfy “any separate ‘public issue’ requirement.” (Briggs, supra, 19 Cal.4th at 1113.)
Likewise, Volokh’s Hastings Law Journalarticle—which reports on what has happened in hundreds of cases, including [Doe’s case]—is “in connection with an issue under consideration or review by a … judicial body,” as are Volokh’s blog posts that mention [Doe’s case] and similar cases. Indeed, [Doe’s case] remains “under consideration or review” both by the District of Colorado and, as to the pseudonymity question, by the Tenth Circuit.
Volokh’s blog posts and law review articles are also covered by § 425.16(e)(3) [and § 425.16(e)(4)]. [Details omitted. -EV]
Naturally, while discussing this public issue, Volokh’s writings mention both the holdings of the cases and the identities of specific litigants whose actions led to those decisions. But that is an inherent feature of a rich, detailed discussion of a matter, just as a newspaper article about a lawsuit would naturally include accurate reporting on who was involved in the lawsuit.
[B.] Step two: Doe cannot “establish[]” “a probability that [she] will prevail on the claim” …
[1.] Volokh’s writings are protected by the First Amendment, and thus cannot be enjoined or form the basis for a § 527.6 injunction
Volokh’s writings cover public record information about Doe’s lawsuits, and are thus protected by the First Amendment. “‘[T]he States may not impose sanctions on the publication of truthful information contained in official court records open to public inspection.'” (Gates v. Discovery Commc’ns, Inc. (2004) 34 Cal.4th 679, 688 (quoting Cox Broadcasting Corp. v. Cohn (1975) 420 U.S. 469, 495.) This extends to rape victims’ names, when they appear in government-provided documents. (Florida Star v. B.J.F. (1989) 491 U.S. 524, 526.) And it applies to reporting both of long-past proceedings and of “current judicial proceedings” (Gates, supra, 34 Cal.3d at 695 (cleaned up)) …. Judge Bradley S. Phillips thus correctly refused to grant a temporary order in Doe’s earlier, abortive petition against Volokh, writing, “The alleged conduct of the person in (2) is likely protected free speech under the First Amendment.” (Notice of Court Hearing, Voloky, supra, at 2.)
Nor can this right be overcome by claims of “privacy”: “[A]n invasion of privacy claim based on allegations of harm caused by a media defendant’s publication of facts obtained from public official records of a criminal proceeding is barred by the First Amendment.” (Gates, supra, 34 Cal.3d at 696.) Volokh is a media defendant, as noted in Part I; but in any event, the First Amendment equally protects media and nonmedia speakers. (See, e.g., Bartnicki v. Vopper (2001) 532 U.S. 514, 525 n.8 [rejecting media/nonmedia distinction in invasion of privacy case]; Miller v. Nestande (1987) 192 Cal.App.3d 191, 200 n.7 [likewise, in a libel case]; Obsidian Finance Group, LLC v. Cox (9th Cir. 2014) 740 F.3d 1284, 1291 [likewise; “a First Amendment distinction between the institutional press and other speakers is unworkable”].)
Indeed, Gates expressly overruled the contrary reasoning in a leading earlier invasion of privacy case, Briscoe v. Reader’s Digest Ass’n, Inc. (1971) 4 Cal.3d 529. (Gates, supra, at 697, fn. 9.) And it thus implicitly overruled Melvin v. Reid (1931) 112 Cal.App. 285, on which Briscoe had relied (4 Cal.3d at 534), and on which Doe relies, Declaration of Jane Doe [Doe Decl.] at 3-4. (See also Catlett v. Teel (Wash.Ct.App. 2020) 477 P.3d 50, 53 [setting aside an “antiharassment protection order” because it imposed “an unconstitutional content-based restriction” on the respondent’s speech and “an unconstitutional prior restraint,” to the extent that it covered respondent’s publishing material drawn from “public records”].)
Doe alleges that she has “several valid court orders to protect [her] identity as a rape victim,” and that “Volokh has no legal authority or any right to void those court orders by publishing my identity and the case information all together.” Doe Decl. at 3. Presumably she is referring to the fact that, in some of the cases in which she participated, the court had allowed her to participate pseudonymously. But Volokh is unaware of any pseudonymity orders in any of the cases cited above that even purport to bind third parties like him.
Indeed, even if the protective orders in other cases did seek to bind third parties, they could not do so. “Every [i]njunction and [r]estraining [o]rder” “binds only” “the parties” and their agents and others “who are in active concert or participation” with them. (Fed. R. Civ. P. 65(d).) The same is true for protective orders—”a protective order generally does not bind a non-party,” at least unless “the non-party … agree[d] to be bound by the order.” (State ex rel. Thomas v. Grant (Ariz.Ct.App. 2009) 213 P.3d 346, 347, 350 [expressly rejecting the view that “a non-party that comes into possession of information it knows is covered by a protective order is bound by the order not to disseminate the information just as a party to the litigation would be bound”].)
A court order cannot “prevent [the media] … or anyone else from disseminating the substance of information already in the public domain.” Tavoulareas v. Washington Post Co. (D.D.C. 1986) 111 F.R.D. 653, 660. Indeed, even a party “may disseminate the identical information covered by the protective order as long as the information is gained through means independent of the court’s processes.” Seattle Times Co. v. Rhinehart (1984) 467 U.S. 20, 34. It is even clearer that Volokh—a non-party to those cases—may freely use information about the plaintiff’s identity that he obtained from the public records in other cases. A protective order must “not restrict the dissemination of information obtained from other sources.” Anderson v. Cryovac, Inc. (1st Cir. 1986) 805 F.2d 1, 14.
Doe also in passing alleges that Volokh “portrays [her] in a false light,” because “[h]e states that [Doe] was convicted of several crimes but he leaves out the fact that [Doe is] currently seeking post-conviction relief due to wrongful conviction” (Doe Decl. at 1). Of course people convicted of crimes are free to claim they were innocent, and are free to seek post-conviction relief so arguing, even after their convictions have been affirmed on appeal. But there is no legal principle requiring someone who mentions a conviction to also mention that it is being challenged in a state or federal habeas proceeding.
Likewise, Doe states that Volokh “alleges that [she] had made similar rape accusations against other people which again portrays me in a false light” (Doe Decl. at 1). But public record documents do suggest that it indeed “appears that [Doe] had made similar accusations,” Volokh, supra, 73 Hastings L.J. at 1370, see Doe v. Newsom (C.D.Cal. Mar. 26, 2021) No. 2:20-cv-04525, at *2 (discussing such accusations); Volokh, supra, 1370 fn. 75 (citing sources indicating that the plaintiff in Doe v. Newsom is the Doe in this case). And in any event, the harassment restraining order process is not intended to be a remedy for allegations of isolated assertions that place someone in a false light.
[2.] Volokh’s writings do not lose their First Amendment protection simply based on speculation that some readers acted improperly after having read the writings
A writer’s First Amendment rights do not disappear even if (as Doe alleges) two readers react to published material with harassment or even threats or violence—or else any newspaper article that casts a person in a negative light would have to be removed if a few people get angry enough as a result. Indeed, even when a film leads to outright violence, it cannot be subject even to after-the-fact civil liability (and therefore, still more clearly, cannot have its continued showing be enjoined):
[W]hen speech … arouse[s] violent reaction on the part of the lawless, the first obligation of government is to maintain the peace and enforce the law, and not to silence or punish the speaker. Were this not the rule, all speech would be subject to the “heckler’s veto.” … [T]here are people who will react violently to movies, or other forms of expression, which offend them, whether the subject matter be gangs, race relations, or the Vietnam war. It may, in fact, be difficult to predict what particular expression will cause such a reaction, and under what circumstances. To impose upon the producers of a motion picture the sort of liability for which plaintiffs contend in this case would, to a significant degree, permit such persons to dictate, in effect, what is shown in the theaters of our land. (Bill v. Superior Ct. (1982) 137 Cal.App.3d 1002, 1008-09 [citation omitted].)
(See also McCollum v. CBS, Inc. (1988) 202 Cal.App.3d 989, 1002 [holding likewise as to a lawsuit based on music by Ozzy Osbourne that allegedly led to a 19-year-old listener’s suicide].) What is true of films is equally true of law review articles and articles on magazine web sites.
To be sure, speech that tends to cause illegal conduct can indeed be punished if it fits within the narrow exception for “incitement” (Bill, supra, at 1006-07; McCollum, supra, at 1000). But that requires a showing that the speech constituted “advocacy of the use of force or of law violation” and was “directed to inciting or producing imminent lawless action” and was “likely to incite or produce such action.” (Brandenburg v. Ohio (1969) 395 U.S. 444, 447; NAACP v. Claiborne Hardware Co. (1982) 458 U.S. 886, 927-28 [applying Brandenburg as a limit on civil liability, where it was alleged that some listeners criminally attacked people who had been denounced in speech distributed by the NAACP].) Volokh’s writings did not advocate lawless action; they were not directed to producing such action; they were not directed to producing imminent lawless action; and they were not likely to produce such imminent lawless action. (Doe merely speculates that the two calls she received were prompted by the callers’ reading Volokh’s law review article—the only publication that mentions her full name; and certainly there was no reason to think, when the Hastings Law Journal article was published, that such calls were likely to be imminently caused by that publication.)
[3.] Volokh’s articles are not “harassment” under § 527.6
Doe thus has no likelihood of succeeding on her § 527.6 claim, and thus cannot satisfy her second-step burden under § 425.16, because Volokh’s writings are categorically protected by the First Amendment. And Doe also cannot satisfy her burden because Volokh’s writings are categorically excluded from the statutory definition of “harassment” in § 527.6(b) (emphasis added):
(1) “Course of conduct” is a pattern of conduct composed of a series of acts over a period of time, however short, evidencing a continuity of purpose … . Constitutionally protected activity is not included within the meaning of “course of conduct.”
(3) “Harassment” is unlawful violence, a credible threat of violence, or a knowing and willful course of conduct directed at a specific person that seriously alarms, annoys, or harasses the person, and that serves no legitimate purpose. The course of conduct must be that which would cause a reasonable person to suffer substantial emotional distress, and must actually cause substantial emotional distress to the petitioner.
This is so for four reasons:
“Constitutionally protected activity is not included within the meaning of ‘course of conduct'”; as explained above, Volokh’s article and posts were constitutionally protected.
Volokh’s writings were not “directed at” Doe; they merely mentioned her name as one part of their coverage of the law of pseudonymous litigation. The article and two posts mentioned Doe and her cases only incidentally; the remaining post focused on [one of Doe’s cases], but mentioned Doe’s last name only as part of a long post that consisted mostly of excerpts from the case.
The writings served the eminently “legitimate purpose” of discussing cases on pseudonymous litigation, and the particular litigation behavior that led to the decisions in those cases.
Volokh’s own “course of conduct”—publishing a law journal article and three blog posts—would not “cause a reasonable person to suffer substantial emotional distress.” If Doe received harassing phone calls, those callers’ conduct might cause a reasonable person substantial emotional distress. But the calls were not part of Volokh’s own “course of conduct”: they came from completely different people whose identities are unknown to Volokh, and their “purpose” was entirely different from Volokh’s purpose of discussing the law of pseudonymous litigation. Certainly Doe can point to no “clear and convincing evidence” (527.6(i)) that there was any “continuity of purpose” between Volokh’s writings and the harassing phone calls.
[4.] Doe’s petition seeks an unconstitutional prior restraint
Doe’s petition must thus be struck under § 425.16 even apart from the unconstitutional remedies she seeks, because Volokh’s writings cannot form the basis of any § 527.6 order. But Doe’s requested remedies highlight the unsoundness of her position. Doe asks (Petition att. 8c) for an order that Volokh
Remove any remarks, comments‚ or references from any publicly available documents or articles authored by Eugene Voloky [sic] that connect Protected Party’s real name with rape or sexual assault;
Remove any remarks, comments, or references from any publicly available documents or articles authored by Eugene Voloky that connect the Protected Party’s real name with the cases in which she has received a protective order to proceed under a pseudonym;
Cease publishing any remarks, comments, or references that connect the Protected Party with rape or sexual assault;
Cease drawing public attention to the Protected Party’s real name associated with rape or sexual[] assault.
This would mean that Volokh would be barred from, for instance, discussing or excerpting the federal District Court opinion in [Doe’s case], supra, which discussed Doe’s allegations of sexual assault, explained why the Court had depseudonymized the case, and mentioned Doe’s full name. That case is also now on appeal to the Tenth Circuit, supra p. 3; if the Tenth Circuit affirms, and discusses the underlying facts, then Volokh would be barred from discussing that appellate opinion—indeed, even if it is published and becomes binding precedent. Likewise, Volokh would be barred from posting his various filings in that case (where he is participating as intervenor), or his filings in this case.
This would be clearly unconstitutional when applied to anyone. But it would be especially improper to bar a law professor who specializes in the law of pseudonymity from discussing the details of important cases that involve the law of pseudonymity.
California law recognizes that overbroad injunctions are unconstitutional even in cases alleging “harassment.” (See, e.g., Evans v. Evans (2008) 162 Cal.App.4th 1157, 1164, 1169 [holding that “the court’s preliminary injunction prohibiting [defendant] Linda from publishing any ‘false and defamatory’ statements on the Internet is constitutionally invalid,” even when the court’s rationale was a finding of “ongoing harassment activities” by defendant; “[b]ecause there has been no trial and no determination on the merits that any statement made by Linda was defamatory, the court cannot prohibit her from making statements characterized only as ‘false and defamatory'”). And while California courts have allowed injunctions after a trial at which the enjoined speech has been found to be constitutionally unprotected—”once a court has found that a specific pattern of speech is unlawful, an injunctive order prohibiting the repetition, perpetuation, or continuation of that practice is not a prohibited ‘prior restraint’ of speech” (Aguilar v. Avis Rent A Car Sys., Inc (1999) 21 Cal.4th 121, 140)—for the reasons given in Part II.B.1, there can be nothing “unlawful” about reporting on the contents of public records.
Conclusion
A Harassment Restraining Order cannot constitutionally—or consistently with § 527.6—be based on a law review article and blog posts that merely report information from judicial records. Under § 425.16, Volokh is entitled to have Doe’s petition struck. Alternatively, the Court should deny Doe’s petition based on the facts and authorities given above.
Libertarian Group Sues To Block Biden Student Loan Forgiveness
A California libertarian group has sued the Biden administration over its plan to cancel student debt, calling it an illegal overreach which will end up taxing some Americans whose debt is forgiven.
“Congress did not authorize the executive branch to unilaterally cancel student debt,” said attorney Caleb Kruckenberg of the Pacific Legal Foundation, which filed the lawsuit – believed to be the first targeting Biden’s plan, AP reports. The Sacramento-based legal advocacy group filed the suit in Indiana, which is one of several states that plans to tax those whose debt is canceled by Biden’s plan.
Kruckenberg says that it’s illegal for the executive branch to create such policy “by press release, and without statutory authority.”
(Meanwhile, Biden is yanking student loan forgiveness for more than 750,000 borrowers who took federal government loans that were issued and managed by private lenders)
The suit’s plaintiff is Frank Garrison, described as a public interest attorney who lives in Indiana and is employed by the libertarian group.
Garrison is on track to get his student debt erased through a separate federal program for public servants. Although most borrowers will need to apply for Biden’s plan, Garrison and many others in that program will automatically get the relief because the Education Department has their income information on file. -AP
Garrison, the plaintiff, says that Biden’s plan would automatically cancel up to $20,000 of his debt, which would trigger an “immediate tax liability” owed to the state of Indiana.
“Mr. Garrison and millions of others similarly situated in the six relevant states will receive no additional benefit from the cancellation — just a one-time additional penalty,” read the suit.
Other states which plan to debt forgiven debt under the Biden plan are; Arkansas, California, Minnesota, Mississippi, North Carolina and Wisconsin, unless lawmakers act to change their current laws.
When asked how people could opt out of the debt forgiveness, White House press secretary Karine Jean-Pierre, who said ‘anyone can opt-out’ had no answers, after previously saying that roughly 8 million Americans would automatically receive the debt relief.
“The bottom line is this — no one who does not want debt relief will have to get that debt relief,” she said.
The White House has called the lawsuit “baseless,” suggesting that it’s nothing more than political opponents who “are trying anything they can to stop this program that will provide needed relief to working families.”
Biden’s plan will cancel $10,000 in federal student debt for those making $125,000 per year or less, and $250,000 per household. Pell Grant recipients are set to receive an additional $10,000 benefit.
Conservative groups have called Biden’s plan legally questionable, and point out that the debt forgiveness unfairly cancels student debt at the expense of Americans who didn’t attend college – or paid off their loans.
The Biden administration has repeatedly argued that the plan is on solid legal ground.
In its legal justification for debt cancellation, the Biden administration invoked the HEROES Act of 2003, which aimed to provide help to members of the military. The law gives the administration “sweeping authority” to reduce or eliminate student debt during a national emergency, the Justice Department said in an August legal opinion.
Education Secretary Miguel Cardona has said he has the legal authority to cancel debt for people who faced hardship during the pandemic. Cardona says Biden’s plan will ensure borrowers aren’t worse off after the pandemic than they were before. -AP
“Nothing about loan cancellation is lawful or appropriate,” reads the lawsuit. “In an end-run around Congress, the administration threatens to enact a profound and transformational policy that will have untold economic impacts.”
Lately we’ve been led astray over and over again by supposed ‘experts’ with decades of experience who can’t seem to stop making colossal mistakes.
But I’m not just talking about individuals. I’m talking about institutions too.
And one institution in particular that’s been an abject failure lately has been the central bank. That includes the Federal Reserve in the United States, the Bank of England in the UK, and more.
The Federal Reserve, for example, despite its leaders’ decades of experience, completely failed to predict that their policies over the past few years would have any consequences. It’s extraordinary.
These people honestly thought that they could print trillions of dollars, keep interest rates at 0%, and that there would never be any consequences until the end of time.
And then, when inflation began to take hold last year, they failed to recognize it. They chastised people who pointed it out.
Later, when they finally did acknowledge inflation, they insisted it was transitory. And then when they ‘retired’ the term transitory, they promised to do something about the growing inflation problem… eventually.
Finally, in March 2022, they made a very ceremonial 0.25% interest rate increase. File that away under “too little, too late”.
But now their tune has changed. Now their policies smack of panic and desperation, and they sound like they’re running around with their hair on fire with no clue what to do next.
It hardly inspires confidence.
Earlier this week we saw another example.
The Bank of England made a stunning announcement that they would step in to prop up their rapidly-declining bond market. Investors around the world cheered the news, and global financial markets surged.
The euphoria lasted about 24 hours.
The next day, markets tanked again as investors realized, “Hang on… I don’t believe these people.”
Central banks have enjoyed unparalleled respect and gravitas for the past 30 years; going back to Alan Greenspan in the 1990s, central bankers have been viewed as infallible superheroes who always know what to do.
Now they just look like a bunch of amateurs.
In today’s podcast, I walk through my analysis about what might happen next. Specifically, I argue why I think there’s NO WAY they’ll follow through on their interest rate increases. Simply put, continuing to do so will bankrupt their governments.
Ultimately this means that inflation, at least some inflation, is here to stay. And I also discuss a couple of key asset classes, plus one surprising country, that can do well in this mess.
