Patterico's Pontifications


Outrageous: California Prosecuting Man for Anti-Muslim Insults

Filed under: General — Patterico @ 1:30 pm

Here in the United States of America, the California Attorney General is actually prosecuting a man for Internet insults. Eugene Volokh:

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

  • “THE TERROR HIKE … SOUNDS LIKE FUN” (written in response to the Center’s “Sunset Hike” announcement).
  • “Islam is dangerous – fact: the more muslim savages we allow into america – the more terror we will see -this is a fact which is undeniable.”
  • “Filthy muslim s**t has no place in east inflatables reviews western civilization.” [Note by Patterico: I bleeped the expletive here, but Feigin’s original comment contained the curse word.]

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

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

These are Facebook comments, not calls into a person’s home. All the organization had to do was block the guy. But they, and the Attorney General, want to punish him for what he said. And they are using the criminal justice system to do it.

As Volokh explains, the California Attorney General makes no bones about the fact that it is going after Feigin because of the content of his speech. It is the allegation that the language is intended to “vex” or “annoy” members of the ICSC that the Attorney General claims is unlawful. If Feigin had praised Muslims or Islam, there would be no prosecution. They admit this, openly.

Volokh notes that the logic of this prosecution would also support a prosecution for, say, comments on the NRA’s Web site intended to annoy NRA employees — or comments on President Trump’s Web site intended to annoy Trump. I’ll add that it could apply to comments on this very Web site intended to annoy me. But if you leave a comment intended to annoy the NRA, or Trump, or me, the remedy is for someone to respond to it, or in an extreme case to ban you from the site. It’s not to prosecute you.

One strongly suspects, given the partisan leftist bent of California’s Attorney General, that there would be no prosecution for comments intended to annoy the NRA or Trump. And it is the partisan nature of government retaliation for speech that is at the root of the First Amendment’s prohibition against such retaliation.

The actions of the California Attorney General in attempting to punish Feigin for his free speech are so outrageous as to shock the conscience of this prosecutor. (I should add, as I always do, that I speak for myself here and not for my office.) This is very basic First Amendment stuff. They should be ashamed of themselves.

P.S. I should note that there is a separate count for an actual alleged threat. But as Prof. Volokh explains, the evidence supporting that count is very weak:

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

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

The bit about waiting months to get the records, only to see that they were purged, reminds me of the slipshod efforts of the FBI in “investigating” my SWATting. But the fact remains that this sounds like very bad evidence for the threat count.

In any event, prosecuting someone for annoying Internet insults that can easily be blocked is an outrage. I hope these prosecutors get hammered hard in court. They deserve to be.

P.P.S. Full disclosure: I am friendly with Ken White of, who has done pro bono work for me in the past. His law partner is the man defending Feigin. This has no effect on my opinion but it should be noted regardless.

[Cross-posted at RedState and The Jury Talks Back.]

27 Responses to “Outrageous: California Prosecuting Man for Anti-Muslim Insults”

  1. So, would you support some form of consequence – other than getting hammered in court – for such an egregious abuse of power?

    Lenny (5ea732)

  2. Ding.

    Patterico (522dfb)

  3. It’s California, Jake……

    But I don’t think we’ve seen an enforcement mechanism as nasty and cruel as the one the Desert Sun has uncovered out in California’s Inland Empire. The cities of Indio and Coachella partnered up with a private law firm, Silver & Wright, to prosecute citizens in criminal court for violations of city ordinances that call for nothing more than small fines—things like having a mess in your yard or selling food without a business license.

    Those cited for these violations fix the problems and pay the fines, a typical code enforcement story. The kicker comes a few weeks or months later when citizens get a bill in the mail for thousands of dollars from the law firm that prosecuted them. They are forcing citizens to pay for the private lawyers used to take them to court in the first place. So a fine for a couple of hundred dollars suddenly becomes a bill for $3,000 or $20,000 or even more.

    In Coachella, a man was fined $900 for expanding his living room without getting a permit. He paid his fine. Then more than a year later he got a bill in the mail from Silver & Wright for $26,000. They told him that he had to pay the cost of prosecuting him, and if he didn’t, they could put a lien on his house and the city could sell it against his will. When he appealed the bill they charged him even more for the cost of defending against the appeal. The bill went from $26,000 to $31,000.

    Brett Kelman of the Desert Sun found 18 cases in Indio and Coachella where people received inordinately high legal bills for small-time violations. A woman fined for hanging Halloween decorations across a city street received legal bill for $2,700. When she challenged it, the bill jumped to $4,200.“

    Coming to a city near you……

    harkin (8256c3)

  4. Off topic…. I see there was a “successful” SWATting in Wichita KS: responding police shot the homeowner as he opened the door to their knock.
    I mention this as our host has some experience in this area.

    Gramps (a079bc)

  5. Want more government, here is more government.

    BfC (0cbbb4)

  6. Off topic…. I see there was a “successful” SWATting in Wichita KS: responding police shot the homeowner as he opened the door to their knock.
    I mention this as our host has some experience in this area.

    Post forthcoming on that. I already have it up at RedState.

    Patterico (522dfb)

  7. Thank you for the RedState post. It’s almost as if the SWATer, whose name might rhyme with Krett Bimberlin, was being protected by people in high places. Hanlon’s Razor aside, that’s an amazing level of incompetence on the FBI’s part.

    Kevin M (752a26)

  8. OK, maybe not Mr K.

    Why didn’t the local DA investigate?

    Kevin M (752a26)

  9. The more Muslims the Democrat Party brings into the USA, the more our cherished 1st amendment Constitutional Right to Free Speech is eroded.

    Ironically, in the name of opposing the establishment of a state religion, Muslims are increasingly successful in seeking to prevent the practice of America’s Christian and Jewish traditions.

    And, the most annoying aspect of the whole sorry spectacle is the self-righteous hypocracy of the brain-dead traditional American clergy who stand by proudly applauding Muslim totalitarian dogma as the very bedrocks of Christianity are crushed under their cowardly inability or unwillingness to defend the teachings of Christ.

    ropelight (488f65)

  10. Wow. California has finally hit rock bottom. They want to jail someone for insulting words!

    And unless the GOP finds some really hotshot candidates, the madness will continue.

    Patricia (5fc097)

  11. The world is a safer place when muslims stay in their home country and blow each other up at the local camel stop.

    mg (8cbc69)

  12. “I’ll add that it could apply to comments on this very Web site intended to annoy me.”

    Now you’ve got my attention.

    I hope all is well. Happy New Year!

    ThOR (c9324e)

  13. Wait a minute, they can’t even prove this is the guy that made the call.

    narciso (d1f714)

  14. 1st Amendment, what 1st Amendment?

    NJRob (0ff0ce)

  15. If they asked the guy to stop and he didn’t, I could see a harassment charge.

    But this just looks like garden-variety prosecutorial over-reach. How many more Nifongs will it take before they learn?

    Craig Mc (b08cf9)

  16. Why didn’t the local DA investigate?

    Police agencies generally do investigations. I went to the FBI because there had been an obviously related SWATting in New Jersey the week before and I foolishly thought they would be better at interstate investigations. Problem is they didn’t care.

    The local sheriff was no better. The assigned detective took three weeks to begin looking at the case, and then told me there *were* no phone records. He was wrong. He couldn’t have cared less.

    Patterico (522dfb)

  17. I went to the same sheriff’s department when an anonymous Kimberlin fan threatened to kill my children. I had endured the personal threats and even the threats to rape my wife but when they brought my children into it I made a visit to the Lomita Sheriff’s station. They told me it was my fault because I had gotten on the Internet. They would not even take a report. I should have gotten names and badge numbers but I didn’t want to be “that guy.” So I let it go.

    I’m not sure I would do the same today.

    Patterico (522dfb)

  18. I can seem the scold at times, but I concur with the will of the board. Not coincidentally perhaps, it seems the Rose Bowl has moved to Texas just like everything and everyone else. GO Bucks /Beat SC!

    urbanleftbehind (87ccb0)

  19. Well it is becerra’s office which is the Hans (not the Derek) of prosecutirial operations

    narciso (d1f714)

  20. And as usual they are out with the pillows

    narciso (d1f714)

  21. Odd how the pretender to freedman chair acts

    narciso (d1f714)

  22. The prosecutors don’t have (or even want) to win, the process is the punishment.

    Michael (62afa3)

  23. Precisely why Trump won.

    The Left is evil.

    They must be destroyed by any means necessary.

    Clown Car (c587a1)

  24. I’m willing to guess the Islamic center is not in favor of this:

    narciso (d1f714)

  25. “New York Magazine
    Travel from eight countries is banned. The FCC abolished net neutrality. Plastic water bottles are once again allowed in national parks. Here is a comprehensive list of ways Donald Trump structurally changed America in 2017 “

    “Ben Shapiro
    I feel like one of these things is not like the others”

    harkin (8256c3)

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