Patterico's Pontifications


Protective Order Muzzles Blogger

Filed under: Brad Friedman,Brett Kimberlin,General,Neal Rauhauser — Patterico @ 11:16 pm

I just got interested in the muzzling of a blogger by a judge who cares little about the First Amendment. I saw the story on Radley Balko’s site, noticed that the judge had actually ordered the blogger to take down his posts (!), and had just started to do some independent research — pulling Google Cache shots of the deleted posts (here, here, here, and here) — when I saw Popehat already had the whole thing covered.

In a post published a few minutes ago.

This, in some ways, is worse than the egregious order Brett Kimberlin got against Aaron Walker. Judge Sanabria-Vega has not merely prohibited someone from speaking about a criminal proceeding — she’s ordered that person to delete what he’s previously written, all without a hearing. Moreover, the theories on which Nilan sought an order — and on which Judge Sanbria-Vega apparently granted it — appear plainly unconstitutional. Prior restraint on otherwise protected speech (that is, preventing Valenti from writing about Nilan at all) is only permissible in very rare cases, and orders requiring the removal of defamatory material generally come only after a full trial on the merits. Moreover, Valenti tells me that Nilan has never informed him of what specific facts he has printed are false, and nothing in the press coverage of this order or her statement identifies any such specific facts. Remember my mantra — vagueness in legal threats is the hallmark of censorious thuggery.

As to threats, Nilan’s theory appears to be similar to that of convicted domestic terrorist Brett Kimberlin — that if a blogger strongly criticizes someone, that blogger is legally responsible for reader reactions, and may be prohibited from blogging further if readers react with bad behavior like threats. As the appellate court has found in Kimberlin, that’s just not the law — only incitement that is calculated to cause, and likely to cause, imminent lawless action may be prohibited or punished. That’s a good thing. Otherwise, all the nuts of the internet have a heckler’s veto over Dan Valenti’s speech, and your speech, and mine. If we’re responsible for bad people responding to critical (as opposed to genuinely inciting) speech, then the more contemptible somebody’s behavior, the more dangerous it would be to write about them. Moreover, in the digital age, such an unprincipled legal rule is ripe for fraud — it’s trivially easy for someone seeking a protective order to lie about receiving threats, and nearly as easy to send false-flag threats to create a justification for censorship.

Dan Valenti’s case, like Aaron Walker’s, highlights how protective orders can pose a grave risk to First Amendment rights if judges issue them without applying scrutiny premised on fundamental First Amendment principles. The more that judges approve applications like Brett Kimberlin’s and Meredith Nilan’s, the more that people will be emboldened to abuse the protective order system to silence criticism. If Dan Valenti has written false facts about Meredith Nilan, she can sue for libel, and carry the appropriate burden dictated by the First Amendment. If she’s been subjected to threats, she can seek remedy against the actual culprits. But there’s no excuse for judges to use their coercive power to protect her from commentary because of how unidentified strangers on the internet might react.

I do have a quibble with the first sentence from that block quote. Of course, Aaron’s situation is worse in many ways, because a) he was arrested, b) he was fired, c) he was SWATted, and d) he remains threatened by a violent psychopath. So he’s got that going for him. Which is nice.

But at least he never was ordered to take down any blog posts.

Anyway, that quibble aside, Ken has done a great job laying out the facts and why it all matters.

That’ll allow me to go to bed a lot sooner. Thanks, Ken!

Today’s ObamaCare Decision: Scalia’s Textualism Loses to Roberts’s Reinterpretation of Words

Filed under: General — Patterico @ 6:37 pm

The rule of law depends on judges adhering to the words of the law. Textualism is thus critical to the rule of law. Textualism was cast aside today, and we are all paying the price.

Today’s ObamaCare decision boiled down to a fairly simple question: was the mandate a “penalty” or a “tax”? Congress called it a penalty — not once, but multiple times. But Judge Roberts and the four liberal Justices decided to ignore the plain meaning of the word “penalty,” and redefined it to mean “tax.”

Justice Roberts’s motives for doing this are known only to him. But if he had done his job properly, and interpreted the statutory language according to Justice Scalia’s theory of textualism, we conservatives would be celebrating today. Instead, we bemoan the rewriting of a statute in a manner that radically defines the balance of power between the states and the federal government, not to mention the relationship between the federal government and the individual citizen.

I have argued until I am blue in the face that, whatever the merits of trying to divine unexpressed “intent” in the meaning of words in everyday communication, the rule of law requires that the plain meaning of words govern the interpretation of statutes passed by legislative bodies. As I explained in May 2010:

Unlike most legal interpreters, who are willing to look to indicators of legislative intent in cases where the plain language is ambiguous, Justice Scalia rejects any reliance on legislative intent that is not reflected in the plain text.

Textualism, Scalia argues in his book “A Matter of Interpretation,” is what undergirds the rule of law: “It is what makes government a government of laws and not of men.” As he says: “We are governed by laws, not by the intentions of legislators.” This survey of Scalia’s textualist approach summarizes the philosophy well: “[I]f the law does not mean what it says and does not say what it means, citizens are left at a loss concerning how they should conduct themselves.” Justice Scalia has put it more succinctly: “Once text is abandoned, one intuition will serve as well as the other.”

Textualism is the mode of analysis that Justice Scalia employs in today’s decision, whereas Justice Roberts employs a more touchy-feely sort of analysis, which rejects the plain meaning of the words as mere “labels” that can be rewritten to save the statute’s constitutionality:

It is of course true that the Act describes the payment as a “penalty,” not a “tax.” But while that label is fatal to the application of the Anti-Injunction Act, supra, at 12–13, it does not determine whether the payment may be viewed as an exercise of Congress’s taxing power.

They said “penalty,” in other words, but they didn’t really mean penalty. Roberts expands on the need to ignore those pesky labels:

The joint dissenters argue that we cannot uphold §5000A as a tax because Congress did not “frame” it as such. Post, at 17. In effect, they contend that even if the Constitution permits Congress to do exactly what we interpret this statute to do, the law must be struck down because Congress used the wrong labels. [But] labels should not control here.

Scalia, by contrast, marshals several arguments in favor of the penalty being construed as a penalty — but the one he keeps coming back to is that Congress called it a penalty:

We have never held that any exaction imposed for violation of the law is an exercise of Congress’ taxing power—even when the statute calls it a tax, much less when (as here) the statute repeatedly calls it a penalty.

. . . .

So the question is, quite simply, whether the exaction here is imposed for violation of the law. It unquestionably is. The minimum-coverage provision is found in 26 U. S. C. §5000A, entitled “Requirement to maintain mini- mum essential coverage.” (Emphasis added.) It commands that every “applicable individual shall . . . ensure that the individual . . . is covered under minimum essential cover- age.” Ibid. (emphasis added). And the immediately following provision states that, “[i]f . . . an applicable individual . . . fails to meet the requirement of subsection (a) . . . there is hereby imposed . . . a penalty.”

. . . .

[W]e have never—never—treated as a tax an exaction which faces up to the critical difference between a tax and a penalty, and explicitly denominates the exaction a “penalty.” Eighteen times in §5000A itself and else- where throughout the Act, Congress called the exaction in §5000A(b) a “penalty.”

. . . .

In the face of all these indications of a regulatory re- quirement accompanied by a penalty, the Solicitor General assures us that “neither the Treasury Department nor the Department of Health and Human Services interprets Section 5000A as imposing a legal obligation,” Petitioners’ Minimum Coverage Brief 61, and that “[i]f [those subject to the Act] pay the tax penalty, they’re in compliance with the law,” Tr. of Oral Arg. 50 (Mar. 26, 2012). These self-serving litigating positions are entitled to no weight. What counts is what the statute says, and that is entirely clear.

. . . .

The last of the feeble arguments in favor of petition- ers that we will address is the contention that what this statute repeatedly calls a penalty is in fact a tax because it contains no scienter requirement.

It makes no sense to go on about “legislative intent” as giving meaning to statutory language, when a) the subjective intent of the lawmakers is diverse and unknowable, and b) most of them haven’t even read the words which their intent supposedly infuses with meaning:

[L]egislation cannot be interpreted according to legislative intent because, even in theory, it is often impossible to ascribe a single intent to a set of words that is the product of numerous different intentions. If 60 people vote for a provision, and 30 intend it to mean one thing, and the other 30 intend for it to mean the precise opposite, there is no coherent way to determine a single “intent” behind the text. . . . What’s more, often the “intent” of the legislators is non-existent, as they simply ratify language written by other people without even reading it.

That is why the rule of law requires that the plain meaning of a statute’s words must govern. If Chief Justice Roberts had simply paid attention to this simple precept — if he had simply adhered to Scalia’s principles of textualism and plain meaning — we wouldn’t be in such a dark place tonight.

UPDATE: This discussion is a bit oversimplified. I explore more of the nuances here.

ObamaCare Ruling Expected Shortly; SCOTUSBlog Report: Supreme Court Upholds Mandate As a Tax; UPDATE: Video of Obama Denying It’s a Tax

Filed under: General — Patterico @ 6:50 am

The revolution will be liveblogged at SCOTUSBlog.

UPDATE: The SCOTUSBlog liveblog is reporting that ObamaCare’s mandate has been upheld as a tax, with Chief Justice Roberts in the majority.

UPDATE: It was clear from the arguments that many Justices and lawyers believed that the mandate could be upheld if it were considered to be a tax. But I admit that I did not get the impression that the Justices were buying that argument.

UPDATE: They’re reporting that the whole law has been upheld, with a small limitation on the federal government’s power to terminate the states’ Medicaid funds.

UPDATE: Here is a clip of Obama absolutely rejecting the idea that ObamaCare is a tax:

Ignore the captioning, which is inaccurate, and just listen to what he says.

UPDATE: Link to the opinion here.

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