San Diego County
Supervisor Dianne Jacob
and LA Times' Sam Zell

I Won’t Be Sued Into Silence
By Dianne Jacob
April 16, 2008

I was sued by the owner of the
Los Angeles Times for speaking
my mind about the business
practices of one his companies,
ironic because people involved in
journalism are usually fierce
defenders of free speech.

Sam Zell’s Manufactured Home
Communities -- now operating
under the name Equity Lifestyle
Properties, Inc. -- owns and
operates more than 300 mobile
home parks in 28 states,
including four parks in the district I

At first, it was difficult to take Zell or
his lawsuit seriously. There’s
something amusing about being
sued for defamation by an
individual who calls himself the
“grave dancer.”

Indeed, a U.S. District Court judge
determined the suit had no merit
and bounced it out of court.

Later, however, when Zell’s
lawyers appealed the case to the
9th U.S. Circuit Court of Appeals, I
came to suspect that MHC’s
lawsuit wasn’t really about my
negative remarks.

Today, weeks after the appeals
court dismissed all but a small
piece of the case against me, I am
convinced that Zell is using our
judicial system to bully me and
intimidate those who dare
question how MHC treats its

In my district, Zell’s customers are
my constituents. In 2002, when
MHC raised their rents some 25
percent, my constituents came to
me in fear. Many were fixed-
income seniors petrified of losing
their homes in an already tight
housing market.

I did my homework and learned a
great deal about the landlord
behind the increase, a billionaire
real estate titan with a deep
disdain for bureaucracy, well
known to the financial world as a
"vulture investor."

Above all, I read about his
company's parade of lawsuits
slapped against various California
municipalities to repeal rent
control ordinances, including
protracted cases against the cities
of Santa Cruz, Santee and San

Yet, MHC’s claims against me are
different from its other lawsuits.
San Diego County doesn't have a
rent control ordinance and has
shown no interest in pursuing one.

At issue in my case is the
"provability" of three remarks I
made after MHC’s rent increase
was announced: that our local
district attorney was interested in
looking into MHC’s activities, that
MHC lied about fixing a sewage
leak in one of its parks and that
MHC has a reputation of running
people out of older mobile home

This column is an overdue
message to seniors in Zell-owned
mobile home parks who continue
to challenge his exorbitant rent
increases, to ethical park owners
not afraid to say, out loud, that
MHC gives their industry a bad
name by crossing the line
between profit and plunder and to
journalists who continue to cover
Zell's activities in the face of
hostile depositions and legal fees.

I stand behind my three remarks
about Mr. Zell’s company. I'm not
afraid of him or his high-priced

What I am afraid of is the notion
that I don’t have a right to publicly
air my opinion of Mr. Zell's
business practices. I'm doubly
afraid of the message this sends
to Americans like me, Americans
who speak out when they believe
they see wrongdoing, Americans
who can't afford to use the legal
system as their own personal

If I could go back to 2002, I would
add one more remark to my list of
complaints against MHC. In my
opinion, Zell’s company uses the
court system to crush jurisdictions
that stand in the way of its profits.
When MHC doesn’t win on merit,
the company tries to price the
defendant out of the judicial
process with expensive litigation.
The city of San Jose, the county of
San Luis Obispo and the city of
Santee are intimately familiar with
this tactic.

MHC’s doctrine of death-by-a-
especially exploits the limited
financial resources of cities and
counties. Is it lost on Zell that by
weighting down our legal system
with lawsuits designed to prolong
rather than to resolve, he is
actually a party to the bloated
bureaucracy he so despises?  

Zell’s lawyers have called my
comments "harmful coming from
a powerful local official," and to
prevail, they will need to prove that
harm in court.

It’s hard for me to believe that my
remarks were much of a threat to
a man that Forbes lists as the
52nd richest person in America,
and I’m prepared to defend my
words because I don’t want others
sued into silence. More than ever,
I believe that MHC does bad
business and, in America, I have
every right to say so.

Dianne Jacob represents the
Second District on the San Diego
County Board of Supervisors. Her
district encompasses the eastern
portion of San Diego County. She
said she submitted this piece to
the LA Times, which declined to
publish it. What do you think about
what she wrote? Send your
perspective to share with our

24 Comments so far on this story...

Diane, this is pure lawsuit abuse.
It is plain and simple and must be
stopped. I am glad you are
speaking out because this
company has been trying to
bankrupt Santee over its rent
control ordinance for years. They
are bullies and they prey on
seniors. Why do you think they
changed their name? I think the
County should have a rent control
ordinance because of greedy
goliaths like this. Don't give up!

Posted by Zell is Bad News | reply
to this comment
April 15, 2008 7:59 pm

Anyone acquainted with this
Supervisor knows that Mr Zell will
come to regret his application of
litigation in his self serving
attempt at censorship of this good
Lady. As Mahatma Ghandi said:
One has no control over the
reciprocity of violence one
initiates: In this case MHC/Zell
may have unleashed a world wind
of justifiable redress and
righteous rectification. The
Supervior is well known for both
her in-depth research and her
unparalled tenacity, especially,in
defense of her constituencies and-
or a just cause. Out of sympathy
for the sinner but not the sin I have
but one word in warning to Mr Zell:

Posted by Jack Griffiths
April 16, 2008 5:54 am

Dianne, sorry to hear of your
distress, though perhaps you now
have a sense of what some
reporters feel when your fellow
Soop, Roberts, has some
reporters ejected from hearings
without so much as a murmur
from them if he or others don't like
the papers they work for.
Censorship is a two way street to
nowhere and as the poster above
stated, one has no control over the
reciprocity of violence one
initiates. I suggest you and the
others get cracking on that rent
control ordinance and give the old
sonofabeehive something to
spend his fortune on, pronto.

Posted by JR
April 16, 2008 7:08 am

Would this be considered a SLAP

Posted by Concerned About
Freedom of Speech
April 16, 2008 7:37 am

Check out the mess on Mission
Gorge Road and see what's
happening to the mobile home
parks there. Santee is fast
becoming the poster child of over
building stemmed by Greed. The
Bulldozers are on a roll and the
east county is their playground.
Just look what's taking place on
Rattlesnake Mountain that over
looks the once country villages of
both El Cajon and Santee. What's
next? Gillespie field? Just look at
all the condo's that could sprout
up on that now flattening open
space where the El Cajon Race
Track once stood. Yes, like the
Bulldozers, Greed is on a roll and
the push is "Eastward Ho." It's an
"Out of control" situation and the
problem is, we just don't have
enough Dianne Jacob's at the
helm to curb these "Moguls of
Mayhem. Next you will be tell me
they want to put a freeway through

Posted by Rocky
April 16, 2008 7:53 am

Sounds like a SLAPP suit.
California law prohibits these
whittle-the-defense' type of suits.
Curious to know if Dianne Jacob's
counsel has pursued an anti-
SLAPP action.

Posted by SLAPPed?
April 16, 2008 8:02 am

Funny how you bemoan the
litigation process in this instance
yet use the same tactics when
denying medical services to the
poor in San Diego County. As well,
you have used litigation to
circumvent the democratic
process with regard to the
medical marijuana issue. You are
talking out of both sides of your
mouth Dianne.

Posted by eastcountyresident
April 16, 2008 8:24 am

I would hope that this injustice as
we have seen it described here
will symbolize the fight for justice
elsewhere in the county
supervisors' efforts to benefit the
general public. I would love to
think that the people have a
tenacious leader fighting for their
rights and seeking justice for all.
Please show us how you can take
those minority special interests
and eviscerate them, starting with
land use abuse, labor abuse, food
and fuel profiteering, corporate
manipulation of public utilities,
'dumb' development growth, water
use and abuse and the poor
planning of transit and
transportation, region wide.

Posted by Christopher Hall
April 16, 2008 8:45 am

As a resident who has been
poorly represented by Toni Atkins
on the City Council, I am insanely
jealous after reading this. I
commend Dianne Jacob for
always fighting for her
constituents and speaking out for
them. I still don't want to move to
East County but her people are

Posted by KensingtonDreams
April 16, 2008 9:25 am

Harvard University has started a
data bank of lawsuits that are filed
for the purpose of stifling freedom
of speech. The Citizen Media Law
Project website can be found at
link If we Americans want to keep
our freedom to publicly discuss
matters of public interest, we will
have to fight for it. Go, Dianne!

Posted by Maura Larkins
April 16, 2008 9:46 am

Dianne, everything you have
written is TRUE -- If anything, it is
UNDERstated. Good luck with
your case and ask if you need
anything from people like myself
for your case. Truth is that I too
have experienced the wrath of ELS
and been to court (AND WON
EVERY POINT) when I availed
myself of my rights. You have
stated the situation very well.
THANK YOU for speaking out!!!

Posted by park resident
April 16, 2008 11:19 am

Uh Rocky! In case you hadn’t
noticed, Hwy 52 IS going through
Santee, sure looks like a freeway
to me—only twenty years late!

Posted by Howiek
April 16, 2008 12:53 pm

You missed my humor Howiek.
First come the Bulldozers and up
go the houses, condos and
Starbucks. Then the Bulldozers
hang around and in goes the
freeways. Yet my friend we still
have them thar potholes, gridlock
traffic, and more polluted air in
what once was the country. You
just can't beat progress. And its 20
years late?

Posted by Rocky
April 16, 2008 2:36 pm

Classic SLAPP lawsuit and it
should have been bounced on the
first response/answer by Dianne
Jacobs. Link here folks; link and
here is how to defend against a
SLAPP lawsuit; link

Posted by Billy Bob Henry
April 16, 2008 4:13 pm

I don't think a public official
making unfounded claims agianst
a company to "bully" them are
considered freedom of speech.
Let's see the cost of everything is
going up. Good luck holding onto
1950's financial mentalities. I
remember when a candy bar was
5 cents. But I am not slandering
Mars or Hershey's over it am I?

Posted by Que?
April 16, 2008 7:36 pm

I don't think a public official
making unfounded claims agianst
a company to "bully" them are
considered freedom of speech.
Let's see the cost of everything is
going up. Good luck holding onto
1950's financial mentalities. I
remember when a candy bar was
5 cents. But I am not slandering
Mars or Hershey's over it am I?

Posted by Que?
April 16, 2008 7:36 pm

I don't think a public official
making unfounded claims agianst
a company to "bully" them are
considered freedom of speech.
Let's see the cost of everything is
going up. Good luck holding onto
1950's financial mentalities. I
remember when a candy bar was
5 cents. But I am not slandering
Mars or Hershey's over it am I?

Posted by Que?
April 16, 2008 7:36 pm

Say what you will ELS has been
constantly tormented by onerous
rent control laws that seek to
make private citizens subsidize
cheap housing. Not everybody can
afford to live within 20 miles of the
Pacific Ocean, too bad there is
pleny of cheap housing in the
Valley between Fresno and

Posted by Owner
April 17, 2008 5:29 pm

If I have one wish, it would be for
you, Diane Jacobs, to represent
those of us in North County who
are seriously under-represented.
Your depth of passion and
integrity is well-known and would
be welcomed. We have problems,
and many of them are similar to
yours. There are many other ways
that the power-brokers can wreak
their havoc on citizens. Please
check the VOSD letter written by a
former resident in one of the
MHC/Zell parks, who now lives in
Illinois. Zell is famous for doing
what he is doing to you. Freedom
of speech is alive and well and we
all have the rights granted to us by
our forefathers. Do NOT let
him/them stop you from speaking
out about injustice.
Redevelopment has got to stop,
too, before it ruins every
neighborhood. Thanks again !

Posted by San Marcos Says,
April 18, 2008 6:58 am

17. Que? wrote on April 16, 2008 8:
36 PM: "I don't think a public
official making unfounded claims
agianst a company to "bully" them
are considered freedom of
speech.............. Then you getter go
back to law school junior and
retake con law I. Opinion speech,
IS protected, and the fact is a
"public" official or company, such
as Zell and ELS have a significant
and high burden to meet for a
defamation lawsuit. Hope this
helps. BTW congrats to Dianne for
making the LA Times this
morning! Link; link

Posted by Billy Bob Henry
April 18, 2008 7:07 am

Looks like each time Jacobs
speaks Sam will be amending his
Complaint. So the process will
continue to be long and drawn out.
It doesn't smell like SLAPP to me,
but I'm not a lawyer.

Posted by Bonnie
April 19, 2008 8:32 am

Good for you Diane! Are you
paying the legal bills for defending
these lawsuits or does it come
from taxpayer funds? In my town,
Heaven help a business owner or
citizen who opposes the Council
majority's (and their big
development campaign
contributor's) radical
redevelopment schemes. They
can be assured they'll be
inspected into oblivion by the code
enforcement department, Storm-
Water Runoff Inspectors, as well
as receiving surprise visits from a
variety of regulatory agencies
acting on anonymous tips. Yes,
tyranny is alive and well in San
Marcos and it ears the face of
local government officials and fifty
of their closest cronies.

Posted by Sad to See
April 19, 2008 12:35 pm

As a terminally pissed off MHC
park resident here in coastal
Delaware I fully admire Dianes
Jacob's noble plight to slam the
"money beast" down to soul-
cleansing legal ground. He really
needs this healing therapy
otherwise how else would a junk
investment billionaire have a
moral point of reference?? Alas,
however, creatures of his ilk never
quite grasp the soothing benfits of
a losing lawsuit. There are many
Sam Zells in this world and for
obvious reasons they all come
complete with the obligatory army
of attack attorneys. Anyway,it is
unfortunate to learn that the good
residents of Southern California
are going through the same legal
crap shoot with this lawyer
infested egotist as we have here
in Delaware. Our rent cap suit
(and it was a fair one) was shot
down by the local 'good old boys'
club of investment politicians and
a wimpy judge.

Posted by Parker Roberts
May 12, 2008 4:33 pm

"I did my homework and learned a
great deal about the landlord
behind the increase, a billionaire
real estate titan with a deep
disdain for bureaucracy, well
known to the financial world as a
"vulture investor." BUT yet DIANE
JACOBS, you will allow the shut
down of a CHURCH and YOU will
allow your employee's to break the
laws and try to shut down a LOW
INCOME trailer park. Google
"trouble for Chuch" guatay, ca...

Posted by JulieP
August 6, 2008 9:16 am
Bally Total Fitness v. Faber
Posted June 24th, 2008 by Arthur Bright
LawsuitDate:  02/23/1998 k
Party Issuing Threat:
Bally Total Fitness Holding Corp.
Party Receiving Threat:
Andrew S. Faber
Type of Threatening Party:
Type of Threatened Party:

In February 1998, Bally Total Fitness sued Andrew Faber, a former Bally customer who created a website
entitled BallySucks (now defunct), which was dedicated to collecting complaints about Bally's health club
business and included modified versions of Bally's trademarks with the word "sucks" across them.  The
complaint alleged trademark infringement, trademark dilution, and unfair competition.

Bally moved for a temporary restraining order against Faber to force him to take down the website, but the
court denied Bally's motion in April 1998. In October 1998, Bally moved for summary judgment on its
claims. The court again rejected the motion, and instead ordered Faber to bring a motion for summary
judgment. Faber so moved, and the court granted the motion in December 1998.

The court found that Faber's "Bally sucks" site promoted separate, distinct "goods" from Bally's services
and would not confuse reasonable consumers. Further, the court said that even if the two "goods" had
been related, the trademark infringement balancing test from AMF Inc. v. Sleekcraft Boats, 599 F.2d 341,
348-49 (9th Cir. 1979) weighed heavily in favor of Faber.

Following the grant of summary judgment, Bally appealed to the Ninth Circuit Court of Appeals. However,
on June 13, 2000, the appeal was dismissed by stipulation of the parties.
Court and Attorney InformationCourt Type:
FederalLocation of Filing/Threat:
California Court Name:
United States District Court for the Central District of CaliforniaCase Number:
2:98-cv-01278 (trial); 99-55345 (appeal)Legal Counsel for Sending/Suing Party:
A. Sidney Katz, Eric D. Cohen, Eric E. Cohen, Julie A. Katz (Welsh & Katz); David Huebner (Coudert
Brothers); Glenn W. Trost (White and Case LLP)
Legal Counsel for Receiving/Defending Party:
Gary P. Simonian (Keats McFarland and Wilson); Kirk N. Sullivan, Jody Damon Angel (Moore Winter
Skebba & McLennan)
"Fair" Housing Lawsuit
Has Been Dismissed

This case has been
dismissed by the US District
Court in Chicago, as of
November 14, 2006.

We're pleased the Court
agreed that online service
providers like craigslist
should not be held liable as
"publishers" of content
submitted by their users,
and view this outcome as a
win for the general public's
ability to self-publish content
(such as free classified ads)
on the internet.

Just as importantly, this
ruling is a victory for fair
housing in the city of
Chicago, since this
misguided suit sought to
force craigslist to regress to
ineffective and intrusive
"horse and buggy"
technologies, which would
have resulted in a big step
backward for fair housing
from the industry-leading
standard that craigslist
users have set through fair
housing education and
community self-moderation.


A group of lawyers is suing
craigslist over a handful of
allegedly discriminatory housing
ads posted by our users,
ignoring the fact that craigslist is
not a publisher, but rather a
commons run by and for its
users, who self-publish and
manage their own ads and use
a flagging system to police the
site. These lawyers demand
that we impose ill-conceived,
mistake-prone, and potentially
illegal controls on the craigslist
community, which if adopted
would actually reduce fair
housing opportunity, while
eroding important free speech
and privacy rights. In reality, the
craigslist community already
excels at ensuring equal
opportunity housing, and
continues to improve in this
regard, earning praise from fair
housing groups. This lawsuit
will likely be dismissed as
groundless, but more
importantly the craigslist
community will be recognized
for its exemplary record in
promoting fair housing for all,
while fully respecting each
person's constitutional right to
free speech and free

The Chicago Lawyers
Committee for Civil Rights
Under Law is suing craigslist
for 100 allegedly discriminatory
ads posted by our Chicago
users in a 6 month period, out
of 200,000 housing ads
submitted to in that
timeframe. While craigslist
takes fair housing issues very
seriously, and we want to do
everything we can to assist our
users in promoting fair housing
for everyone, the 100 ads cited
were a little surprising. Some
were roommate ads involving
constitutionally protected
speech and the right to free
association, such as "prefer
christian roommate", or were
ads containing incidental and
harmless remarks such as
"near St Gertrude's church,"
and "Buddhist temple nearby."..

Although in all likelihood this suit will be
dismissed on the grounds that internet
sites can not legally be held liable for
content posted by users, craigslist has
no need to hide behind this
immunity...Discriminatory postings are
exceedingly uncommon, and those few
that do reach the site are typically
removed quickly by our users through the
flagging system that accompanies each

Though possibly
well-intentioned, this lawsuit
ignores the essential nature of
craigslist, demanding that we
cease treating our users with
trust and respect, and instead
impose inappropriate,
mistake-prone, and generally
counter-productive centralized
controls (such as manual review
by our staff of the nearly 2 million
free housing ads of unlimited
length posted each month, a
volume of ads greater than that
received by all US newspapers
combined), controls which would
actually be less effective in
catching discriminatory ads than
what we have in place currently...

Overreaching further, the
suit demands that craigslist
proactively volunteer
personal information about
posters who post a
discriminatory preference
(e.g. "church next door") to
regulatory authorities for
prosecution, without
subpoena or warrant --
clearly a violation of privacy
rights, this demand may
actually run counter to
federal law governing the
handling of user

Jim Buckmaster
CEO, craigslist
Parent to Parent
Message Boards

GreatSchools, Inc.
says I'm not allowed to
use their content to
discuss on the
Internet the possibility
that school district
attorneys use parent
message boards to
undermine parents
suing schools
Free Speech
Schuster v. The Fresno Bee
Citizen Media Legal Project
by David Ardia

Threat type:  Subpoena
Date:  01/23/2008  
Party Issuing Threat: Larissa Schuster
Party Receiving Threat:The Fresno Bee
Type of Threatening Party: Individual

A defense attorney for Larissa Schuster, who was convicted of murder, subpoenaed The
Fresno Bee seeking the Internet protocol addresses and dates of access for all users of the
paper's website and blog during the period surrounding the time of his client's trial to
determine whether jurors violated a judge's order barring them from reading online news
stories about the case before they reached a verdict.

The subpoena, which was sent to the "Custodian of Records" at The Fresno Bee, sought IP
addresses and dates of access for all users of, the paper's main
website,, the paper's blog, and "any other internet site associated
with The Fresno Bee."

Betsy Lumbye, executive editor and senior vice president of The Fresno Bee, stated that the
newspaper would not voluntarily turn over the IP address data of its users.

The idea that we'd violate readers' privacy by digging up that kind of information and
disclosing it is preposterous," she said. "We would fight it tooth and nail and I'm confident
we'd prevail.

On February 4, 2008, a Fresno County judge quashed the subpoena, concluding that
Schuster's lawyer had not provided compelling reasons to force The Bee to turn over the
information and characterizing the subpoena as "a fishing expedition."

Court Type:State
Location of Filing/Threat:
California Court Name:
Superior Court of California, County of Fresno
Case Number:F03904715-0
Legal Counsel for Sending/Suing Party:
Roger T. Nuttall (Nuttall & Coleman)

CaliforniaWeb Sites Involved:
In March 2000, AnswerThink, a business and technology consulting firm, fired Gregory P.
Hackett for allegedly criticizing the company on a Yahoo! forum and sued him for breach of
contract, breach of fiduciary duty and loyalty, and defamation in Florida federal court.

AnswerThink fired and sued Hackett after subpoenaing Yahoo! and learning Hackett's
identity during a related lawsuit, AnswerThink Consulting Group v. Doe. In that lawsuit,
AnswerThink sued Hackett and several others as John Does for defamation.

Hackett and AnswerThink settled both cases in July 2000.

In a related matter, Hackett sued Yahoo! in California federal court in May 2000 for violating
his privacy when it complied with AnswerThink's subpoena. Hackett and Yahoo! settled in
August 2000.
First Amendment Cases Practice Quiz

Click above to take the quiz.  Here are my results:

1) This trial happened during the colonial period, so was not part of the Supreme Court's
cases under the U.S. Constitution. On August 5, 1735, twelve New York jurors, inspired by
the eloquence of the best lawyer of the period, Andrew Hamilton, ignored the instructions of
the Governors's hand-picked j
Your Answer: John Peter Zenger case
Correct Answer: John Peter Zenger case

2) In this case, a televangelist sued a porn peddler for libel. The Supreme Court ruled the
First Amendment prohibits public figures from recovering damages for intentional infliction of
emotional harm, without showing the publication contained a false statement of fact made
with actual malice.
Your Answer: Hustler v. Falwell, 1988
Correct Answer: Hustler v. Falwell, 1988

3) This case struck down a statute authorizing the state to seek injunctions against routine
publishers of malicious or defamatory information, extending protection of freedom of the
press to the states (incorporation).
Your Answer: Near v. Minnesota, 1931
Correct Answer: Near v. Minnesota, 1931

4) The Supreme Court ruled that wearing black armbands to protest the Vietnam War was
�pure speech,� or symbolic speech, thus protected by the First Amendment. The
principal�s right to forbid conduct that substantially interfered with school discipline was
outweighed by the students� right to free expr
Your Answer: Tinker v. Des Moines Independent Community School District, 1969
Correct Answer: Tinker v. Des Moines Independent Community School District, 1969

5) The Court ruled all school-sanctioned prayer in public schools unconstitutional.
Your Answer: Engel v. Vitale, 1962
Correct Answer: Engel v. Vitale, 1962

6) During World War I, a socialist political activist mailed fliers to draftees urging them to
peacefully protest the draft. Justice Oliver Wendell Holmes wrote that the First Amendment
did not protect him since, during wartime, such expression would create a clear and present
Your Answer: Schenck v United States, 1919
Correct Answer: Schenck v United States, 1919

7) The Supreme Court applied protection of free speech to the states (incorporation)
Your Answer: Plessy v. Ferguson, 1896
Correct Answer: Gitlow v New York, 1925

8) The Supreme Court protected flag-burning as symbolic speech: �Government may not
prohibit the expression of an idea simply because society finds the idea itself offensive or
Your Answer: Buckley v. Valeo, 1976
Correct Answer: Texas v. Johnson, 1989

9) The Court stated that the First Amendment protected all statements about public officials,
unless the speaker lies with the intent to defame. This case overturned a judgment awarding
damages to an Alabama policeman after a major American newspaper ran a critical ad.
Your Answer: No answer given
Correct Answer: New York Times v. Sullivan, 1964

10) The Supreme Court ruled that the an extremist political party could not be prohibited
from marching peacefully, simply because of the content of their message.
Your Answer: Village of Skokie vs. National Socialist Party, 1978
Correct Answer: Village of Skokie vs. National Socialist Party, 1978

11) This case set forth rules for obscenity prosecutions, but also gave states and localities
flexibility in determining what is obscene. The four dissenters argued even the most general
attempt to define obscenity for the entire nation was outside the scope of the Court�s power.
Your Answer: Brandenburg v. Ohio, 1969
Correct Answer: Miller v. California, 1973

12) The Court struck down a Pennsylvania law requiring that each public school day open
with Bible reading.
Your Answer: Abington School District v. Schempp, 1963
Correct Answer: Abington School District v. Schempp, 1963

13) The Supreme Court held that the 1996 Communications Decency Act was
unconstitutional, since it was overly broad and vague in its regulation of speech on the
internet, and it attempted to regulate indecent speech, which is protected.
Your Answer: Reno v. ACLU, 1997
Correct Answer: Reno v. ACLU, 1997

14) This case lifted a temporary injunction against publication of leaked information, since
such publication would not cause an �inevitable, direct and immediate� event imperiling the
safety of American forces; often referred to as the Pentagon Papers case.
Your Answer: New York Times v. United States, 1971
Correct Answer: New York Times v. United States, 1971

15) This case extended to the states the federal protection of the right to peaceably
assemble for lawful discussion (incorporation).
Your Answer: Dejonge v Oregon, 1937
Correct Answer: Dejonge v Oregon, 1937

16) The Court ruled a state school board�s policy requiring students and teachers to recite
the pledge of allegiance unconstitutional.
Your Answer: Wisconsin v. Yoder, 1972
Correct Answer: West Virginia State Board of Education v. Barnette, 1943
Don't get caught in the Net
(How to stay out of trouble)
Volume 12, Issue 1 - September 2007

Teachers have a morality clause in their contracts that holds them to a higher standard than ordinary
citizens, says Livermore Education Association President Keith Pickering-Walters.

Joseph isn’t his real name, but his story is true. The first-year teacher in San Bernardino County created a
MySpace page to share some photos of a Halloween party with his friends. He made sure that all of the
photos were innocuous and featured nothing that could possibly be considered objectionable. Since he
put no restrictions on it, it could be viewed by anyone who so desired.

Even though he never discussed it with his fifth-graders, one of his students found his page. And he asked
to be admitted as a “friend.”

“Dummy me, I let him in, because I knew there was nothing bad on my page,” says Joseph, who prefers
not to be identified.

The student read a message posted by another of Joseph’s “friends” and linked to that person’s page
where he found something questionable and showed it to his mother. She showed it to the school
administrator. And Joseph was placed on administrative leave and ultimately fired — because of
something that was on someone else’s page.

Joseph has no idea what that student saw, but he is plenty angry and hurt. “It was wrong that this

In San Diego, a middle school instructor was put under investigation by his school district after someone
entered his “restricted” MySpace page and showed his principal what was there. Despite being selected
Teacher of the Year at his site, he was asked to step down from chaperoning a trip to the East Coast
because his character was called into question.

CTA defended the teacher, arguing that his website was not connected to his work as a teacher.

These cases are not unusual. Teachers — mostly young ones — are getting tangled in Internet
controversies throughout the U.S. In Virginia, a teacher was fired in January for posting a website
displaying artwork created by painting his buttocks and pressing them against a canvas. And in
Pennsylvania, a woman was denied a teaching degree on the eve of her graduation because of her
MySpace photo from a college Halloween party two years prior captioned “Drunken Pirate.”

Incidents such as these are sparking debates about free speech and what school employees are allowed
to do on their own time — and on their own computers.

“Teachers definitely have First Amendment rights to do anything lawful on non-working time — and we will
defend those First Amendment rights,” says CTA’s Chief Counsel Beverly Tucker. “But we can never
guarantee the outcome. Because of this, we urge teachers to take advantage of modern media and
technology, but to use discretion and common sense.”...
South Pacific Countries Crack Down on Free Speech
Jesse Kline
June 18, 2010

There must be something in the water down in the South Pacific. Following the recent news
that an Australian state is considering tough new legislation banning swearing in public,
comes word that Thailand has blocked 43,000 websites accused of defaming the king.

Thai authorities are using strict Internet crime laws, along with laws that make it illegal to
criticize the monarchy, plus emergency powers the government granted itself following the
recent outbreak of anti-government protests. The latest crackdown comes after 17,000
other websites were blocked, supposedly for national security reasons...
It's great to live in America.  

Even though Judge Judith Hayes is misusing the power of the government to attempt to shut
down my site, I feel much safer than the editor of this website in Rwanda.  Still, it's important
that Judge Hayes be reined in, because the path to oppression is a slippery slope.

Editor of blocked website murdered in Rwanda
Submitted by Rebekah Heacock on 25 June, 2010 - 10:37.
OpenNet Initiative

Earlier this month we blogged about the Rwandan government's announcement that it would
begin blocking the website of independent newspaper Umuvugizi if the paper did not cease

Today, the BBC reports that the acting editor of Umuvugizi was shot and killed in front of his
house in Kigali. The paper's chief editor — currently in exile in Uganda — has accused the
government of orchestrating the murder, but Rwandan authorities are denying all
involvement in the incident.

Curiously, the government is also denying that it is behind the blocking of Umuvugizi's
website, which is currently inaccessible within Rwanda. This seems unlikely, given that last
month the country's Media Council Executive Secretary, Patrice Mulama, went on record
threatening to censor the paper online.

Rwanda is currently scheduled to hold presidential elections in August.
To get the
benefits of free
speech, we need
an educated

Freedom of speech
is a two-edged sword
East Oregonian

As we celebrated the
birth of our nation on
the Fourth of July, I
was considering one of
the glorious things
about life in the United
States: our First
Amendment guarantee
of freedom of speech.
Anyone here can
express their views
vocally, in writing, or
through art, no matter
how radical,
uninformed or foolish
they may appear to

This right, however, is
a two-edged sword.
Other people are free
to express views and
opinions contrary to
our own in books, on
large billboards or
through other mass
media (such as talk
shows or letters to the
newspaper). We have
the freedom to laugh,
become enraged or
completely ignore
views contrary to our
own. In political
matters, we also have
the freedom to
campaign publicly for
those who support our
own ideals.

Still, there are a lot of
folks whose public
statements are
motivated by bigotry,
prejudice, ignorance,
misinformation or
financial gain. How do
we guard against being
misled by such opinions?

Along with the freedom
of speech comes the
responsibility of each
citizen to educate
him/herself to discern
truth and ulterior
motives behind what
they read and hear.
We need to broaden
our scope and not rely
on only one source of
information on any
given subject.

Too many of us listen
to only one radio
station, one television
newscast, one
evangelist or one
mentor. Too many of
us explain our views
with statements that
begin: "My husband
says..." or "My father
always told me..." or
"The guys at work told
me that they heard... ."
Almost daily, we
receive e-mails from
well-meaning friends or
associates that pass
on stories from
unidentified sources.
We then forward them
on to other friends and
associates as if they
were proven truths,
only to learn that they
are far from fact! We
become outraged by
stories of the misdeeds
of public officials,
sports "heroes" and
others passed on by
word of mouth or
through innuendo from
radio and TV "shock
jocks" who proclaim
themselves bearers of
"the real truth."

We all need to become
more responsible
citizens by gleaning
information from
various sources and
several sides on
important issues. We
need to use our sense
of logic, discernment,
and fairness before
exercising our own
freedom of speech...
Public Entities & Press
Silence is Golden
Public records

Brown Act
Permanent Injunction
Marsha Sutton
Secrecy v. Free Speech
Good Journalists

The ad SDUT didn't print

David Blair-Loy
Shinoff on gay rights
and free speech
David Blair-Loy
Freedom of Speech
Attacks on Free Speech
Don Siegelman Trial
Lawsuit Grijalva
Site Map
San Diego Education
Report Blog
SDER II on Poway USD
gay rights and
free speech
Lawsuit against Danielle
Grijalva for website
revealing violence against
foreign exchange students
Fair use--Righthaven LLC v. Hoehn
Threat Type: Lawsuit         
Date:  01/11/2011
Status: Pending         
Location:  Nevada
Legal Claims: Copyright Infringement

Party Issuing Legal Threat:        
Righthaven LLC        
Party Receiving Legal Threat:
Wayne Hoehn

Righthaven LLC, a Las Vegas company associated with Las Vegas Review-Journal owner
Stephens Media LLC, filed a copyright infringement lawsuit against Wayne Hoehn.  
Righthaven alleged that Hoehn copied an article from the Las Vegas Review-Journal without
permission and posted it to the forums of the website Madjack Sports.

In his answer, Hoehn argued that his use of the article was protected as fair use, and that
the court lacked jurisdiction over the case, as Hoehn is a Kentucky resident, the website in
question is hosted in California, and his comments concerned matters in California and

Hoehn filed a motion for summary judgment on February 2, 2011, arguing that Hoehn's
copying of the article was for a transformative purpose and educational use.  As such,
Hoehn wrote, his copying is protected as fair use and as Righthaven failed to show
otherwise, Hoehn is entitled to summary judgment.  In its response, Righthaven argued that
there are too many genuine issues of fact regarding Hoehn's copying to warrant summary
judgment, and that Hoehn's copying was not fair use.
Copyright infringement--Righthaven LLC v. Hyatt

Threat Type: Lawsuit         Date:  10/06/2010
Status: Pending         Location:  Nevada
Disposition:          Verdict/Settlement Amount: n/a
Legal Claims: Copyright Infringement

Righthaven LLC, a Las Vegas company associated with Las Vegas Review-Journal owner
Stephens Media LLC, filed a copyright infringement lawsuit against Bill Hyatt, a New York
blogger.  Righthaven alleged that Hyatt copied an article from the Las Vegas
Review-Journal without permission and posted it on his website,

After Hyatt did not respond to Righthaven's lawsuit, on February 10, 2011, Righthaven filed
a motion for default judgment and demanded it be awarded attorney fees, $150,000 in
statutory damages, and an order that be transferred from Hyatt to Righthaven.


2/23/2011 - The Media Bloggers Association ("MBA") moved to file an amicus brief with the
court.  In the brief, the MBA argued that Righthaven's claim to ownership of the copyright in
the article in question is dubious, as the copyright assignment appears to be invalid.  The
MBA also argued that Righthaven should not be awarded any more than nominal damages
at most, as it "is not a content producer trying to preserve ts relevant market from the
unceasing raids of content pirates, but a dedicated litigation house that acquires rights
from other entities solely to sue essentially defenseless 'infringers' for their supposed
infringement."  And the MBA argued that the court lacked jurisdiction to order the transfer
of to Righthaven, as such an award is only an appropriate remedy in
cybersquatting cases, which this is not.
Rajagopal v. Does

Threat Type: Lawsuit         
Date:  10/22/2010
Status: Pending     
Legal Claims: Defamation; Tortious Interference
Plaintiff Legal Counsel:        Domingo J. Rivera        
Defendant Legal Counsel: Michael H. Page, Paul A. Levy, Public Citizen Litigation Group;
Rebecca K. Glenberg,
ACLU of Virginia

Usha Rajagopal, a plastic surgeon in San Francisco, sued ten John Does for defamation
and various business torts in Virginia state court.  The claims stem from reviews of
Rajagopal posted by the defendants on Rajagopal also subpoenaed Google
to determine the identities of five of the Does.

One of the Does, Cannoli38, moved to quash the subpoena.  He argued that because he
and the other Does have a First Amendment right to speak anonymously, Rajagopal must
make a five-part showing that satisfies the Dendrite standard to identify the Does.  
Cannoli38 argued that Rajagopal did not give the Does noticed as required by Dendrite,
nor did she provide any evidence supporting her claims against the Does.

Cannoli38 alleged that the Does' reviews consisted solely of opinion statements, which are
protected by the First Amendment, and restatements of an article from SFWeekly, a San
Francisco news site, that posted a story about Rajagopal's advertising practices and
allegations brought against her by the California Medical Board.  Cannoli38 argued that
the balance of the equities weighed against Rajagopal.

Cannoli38 also called upon Rajagopal and her attorney to be sanctioned, as he argued the
lawsuit is meritless, has no ties to Virginia, and was meant to be an end run around
California's anti-SLAPP law, which would likely prevent Rajagopal from pursuing the case in
her home state.
Does First Amendment allow
citizens to investigate public
"It is not enough to allow dissent. We must demand it."  Robert Kennedy

You can't rely on attorneys to protect free speech.  They are too much a
part of the establishment.
Free speech blog posts
Yahoo has little use for the opinion of the California Court
of Appeal's opinion on free speech
Yahoo! censored my website because I published an Amazon
book review
November 18, 2011
by Maura Larkins

Yahoo erased one of my webpages a couple of days ago. Why did Yahoo do it? Was my
website obscene? Did it advocate violence or hatred? Quite the contrary. See for yourself: I
have re-published the information on this new page. It seems that I stumbled onto some
information that someone doesn't want revealed. The information is contained in an Amazon.
com book review.

The webpage in question was written several years ago; the only recent information on the
page was the book review and a short comment, both of which were located in a difficult-to-
find spot that could be reached only after scrolling down a considerable distance. My page
discussed the need to address evil when it is small in order to prevent greater evils like the
Holocaust. Local school attorney Daniel Shinoff said that comparing local conflicts to pre-
Nazi Germany was unacceptable and he accused me of being anti-Semitic for doing so. He
even put his accusation into a sworn statement in an ongoing legal case.

But in a different legal case, he made a different argument. Voice of San Diego noted the
following regarding a recent case involving Otay Water District:

A History of Death Threats, Scandal and Sewage-Tainted Water
by Rob Davis
Voice of San Diego

..."When the agency's attorney, Dan Shinoff, presented his case to the ethics board in
March, he zeroed in on what he called Shilling's malicious critique of Gonzalez and Bonilla.
Shinoff, who's paid $250 an hour by the district, appeared to be settling a campaign score.
Talking to commissioners, he unfurled an inflated oratory filled with its own baseless

"Shinoff tried to connect Shilling to an anonymous website that attacked Gonzalez.
And yet Shinoff offered no proof it was Shilling's site. Shinoff said the criticism
was symptomatic of the country's devolving political discourse.

"Somebody's going to be a victim if we continue this in this society," Shinoff told the board,
noting the shooting rampage that had left six dead and 13 wounded in Tucson, Ariz. a few
weeks earlier.

He said an ethics board member shouldn't be allowed to make such attacks — not
with so much at stake. A rebuke was absolutely necessary, he said.

"I urge you with my heart and with my soul for you to do the right thing," he said.
"I come from a family of concentration camp survivors. And I can tell you from a very
personal perspective, permitting this sort of dialogue only leads to tragedy..."

My page about the need to discuss evil in its mundane manifestations had existed for years.
It includes a discussion of my shock when I learned that Daniel Shinoff was not descended
from Holocaust survivors. I learned this in an April 27, 2003 story in the North County Times
story that has been removed from the newspaper's archives. The story said that Mr.
Shinoff's wife was the daughter of Holocaust survivors.

Then two-and-a-half days ago I was shocked to find the following book review by Mr.
Shinoff's wife on

Amazon Customer Review
July 29, 2007
By Michelle Shinoff
This review is from: The Outrage (Paperback)
I have been a student of the holocaust since graduating with a major in Judaic studies. I am
also a relative of survivors of the horrors of nazi Germany. Mischa's experience was an
incredibly unique perspective from an unusual human being. Most Holocaust experiences do
not parallel this unique perspective. The lessons and sense of family that Mr. Kopiec brings
to this story are uplifting. I hope that this book can find its way into the homes of not only the
Jewish community but also those of any human being that has no tolerance for
discrimination, or the atrocities of genocide. Further, I believe that there are important
lessons embodied in this story, that are a contribution to the Jewish people.

Mrs. Shinoff states that she is "a relative of survivors of the horrors of nazi Germany." Could
it be possible that even the NCT story exaggerated Mr. Shinoff's connection to the
Holocaust? I added a short update and the text of the book review to my webpage. I tucked
them both into a spot far down on the page. Here's the text I added:

Update Nov. 15, 2011
Okay. Now I'm really starting to wonder where the truth lies in this story. It looks like even the
claim that Michelle Shinoff is the daughter of Holocaust survivors might not be true. Here's
something she wrote herself. She describes herself as a "relative of survivors of the horrors
of nazi Germany..."

Exactly what benefit does Yahoo! get by helping Dan and Michelle Shinoff conceal
information that they themselves have placed in the public record? I thought Yahoo would
quit violating the constitution after I won against them in the California Court of Appeal last
August. (Previously, Yahoo had interfered with my site at the request of Shinoff's law firm,
Stutz Artiano Shioff & Holtz.) When a third-grade teacher wins against a big law firm, you
know that the law firm must have been clearly in the wrong. So what is Yahoo thinking?

This issue is of particular significance since it relates directly to a case that is ongoing in
San Diego Superior Court.
More than 40 faculty condemn arrests of Occupy UCLA
protesters in letter to Chancellor
November 21, 2011

Dozens of faculty have condemned the arrest of 14 Occupy UCLA protesters Friday in an
open letter to Chancellor Gene Block, citing concerns about limitations on free speech.

More than 40 UCLA faculty members have signed the letter, dated Nov. 20. Calls for
restraint also come as sister campuses UC Davis and UC Berkeley respond to harsh
criticism for police actions toward on-campus Occupy movements.

Interactions between police and Occupy protesters at UCLA have so far been peaceful. On
Thursday, Occupy UCLA protesters set up about 30 tents in Wilson Plaza, planning to stay
for the night.

The day before, administrators had repeatedly warned protesters of a ban against
temporary structures on campus grounds. A campus curfew is also in place between
midnight and 6 a.m. Occupy members were told of the university policies they were violating,
UCLA spokesman Phil Hampton said on Friday.

Around 5 a.m. on Friday, the Occupy camp was circled by university police. Thirteen
students and one alumnus who refused to leave the grounds were arrested on
misdemeanor charges of unlawful assembly and failure to disperse. They were cited and
released about six hours later, police said.

But the authors of the letter say the administration did not have a valid reason to clear the
plaza and arrest the protesters.

“Their crime, formally, was to violate a campus policy against camping,” the letter stated.
“But in reality they were arrested for engaging in political speech at a time and in a manner
that did not please the campus administration.”

Some faculty members are concerned students were disciplined for exercising their right to
free speech, said Tobias Higbie, associate professor of history and one of the drafters of
the letter.

“They’re not out there camping … it’s a protest,” Higbie said. “To say that they’re going to
remove them because they have tents seems a very narrow interpretation of campus policy.”
Stolen Valor Act overturned by Ninth Circuit, under
appeal to Supreme Court

FAC files amicus brief in US Supreme Court “false speech” case
February 7, 2012 by Peter Scheer   

The First Amendment Coalition has filed an amicus brief in a US Supreme Court case,
United States v. Alvarez,  that will test the limits of free speech protection for false speech.  
FAC’s brief was written by lawyers Gary Bostwick, Jean-Paul Jassy and Kevin Vick of  LA
law firm Bostwick & Jassy, LLP.
The Alvarez case concerns a local politician in Southern California who was prosecuted
under an obscure federal law, the Stolen Valor Act, which makes it a crime to falsely claim
to have been awarded the Congressional Medal of Honor. Alvarez’s conviction was
overturned by the Ninth Circuit federal court of appeals on First Amendment grounds.
The Supreme Court’s prior decisions in the areas of libel and elsewhere have extended
protection to some false speech as a prophylactic measure, needed to assure adequate
First Amendment protection for true speech. The Justice Department contends that First
Amendment protection for false speech should be narrowly limited to those areas.
FAC’s brief argues that the Court should resist the government’s invitation to carve out a
new category of non-protected speech under the First Amendment. FAC also points out
that the infamous Sedition Act of 1798, which criminalized “false and malicious writings”
against the federal government, would survive First Amendment scrutiny under the test
urged by the Justice Department.

Decision of Ninth Circuit
"Finding no appropriate way to avoid the First Amendment question Alvarez poses, we hold
that the speech proscribed by the Act is not sufficiently confined to fit among the narrow
categories of false speech previously held to be beyond the First Amendment's protective
sweep. We then apply strict scrutiny review to the Act, and hold it unconstitutional because
it is not narrowly tailored to achieving a compelling governmental interest."

617 F.3d 1198 (2010)
UNITED STATES of America, Plaintiff-Appellee,
Xavier ALVAREZ, aka Javier RGK-1 Alvarez, Defendant-Appellant.

No. 08-50345.
United States Court of Appeals, Ninth Circuit.

Argued and Submitted November 4, 2009.
Filed August 17, 2010.
1199*1199 Jonathan D. Libby, Deputy Federal Public Defender, Los Angeles, CA, for the

Craig H. Missakian, Assistant U.S. Attorney, Cyber and Intellectual Property Section, Los
Angeles, CA, for the plaintiff-appellee.

Before: T.G. NELSON, JAY S. BYBEE, and MILAN D. SMITH, JR., Circuit Judges.

Opinion by Judge MILAN D. SMITH, JR.; Dissent by Judge BYBEE.

MILAN D. SMITH, Circuit Judge:

Defendant-Appellant Xavier Alvarez conditionally pleaded guilty to one count of falsely
verbally claiming to have received the Congressional Medal of Honor, in violation of the
Stolen Valor Act (the Act), 18 U.S.C. § 704(b), (c),[1] reserving his right to appeal the Act's

1200*1200 The Act, as presently drafted, applies to pure speech; it imposes a criminal
penalty of up to a year of imprisonment, plus a fine, for the mere utterance or writing of
what is, or may be perceived as, a false statement of fact—without anything more.

The Act therefore concerns us because of its potential for setting a precedent whereby the
government may proscribe speech solely because it is a lie. While we agree with the
dissent that most knowingly false factual speech is unworthy of constitutional protection and
that, accordingly, many lies may be made the subject of a criminal law without creating a
constitutional problem, we cannot adopt a rule as broad as the government and dissent
advocate without trampling on the fundamental right to freedom of speech. See Jonathan
D. Varat, Deception and the First Amendment: A Central, Complex, and Somewhat Curious
Relationship, 53 UCLA L.Rev. 1107, 1109 (2006) ("[A]ccepting unlimited government power
to prohibit all deception in all circumstances would invade our rights of free expression and
belief to an intolerable degree, including most notably—and however counterintuitively—
our rights to personal and political self rule."). Rather we hold that regulations of false
factual speech must, like other content-based speech restrictions, be subjected to strict
scrutiny unless the statute is narrowly crafted to target the type of false factual speech
previously held proscribable because it is not protected by the First Amendment.

The rule the government and dissent urge us to apply in order to uphold the Act would, if
adopted, significantly enlarge the scope of existing categorical exceptions to First
Amendment protection. All previous circumstances in which lies have been found
proscribable involve not just knowing falsity, but additional elements that serve to narrow
what speech may be punished. Indeed, if the Act is constitutional under the analysis
proffered by Judge Bybee, then there would be no constitutional bar to criminalizing lying
about one's height, weight, age, or financial status on or Facebook, or falsely
representing to one's mother that one does not smoke, drink alcoholic beverages, is a
virgin, or has not exceeded the speed limit while driving on the freeway. The sad fact is,
most people lie about some aspects of their lives from time to time. Perhaps, in context,
many of these lies are within the government's legitimate reach. But the government cannot
decide that some lies may not be told without a reviewing court's undertaking a thoughtful
analysis of the constitutional concerns raised by such government interference with speech.

Finding no appropriate way to avoid the First Amendment question Alvarez poses, we hold
that the speech proscribed by the Act is not sufficiently confined to fit among the narrow
categories of false speech previously held to be beyond the First Amendment's protective
sweep. We then apply strict scrutiny review to the Act, and hold it unconstitutional because
it is not narrowly tailored to achieving a compelling governmental interest.


Xavier Alvarez won a seat on the Three Valley Water District Board of Directors in 2007. On
July 23, 2007, at a joint meeting with a neighboring water district board, newly-seated
Director Alvarez arose and introduced himself, stating "I'm a retired marine of 25 years. I
retired in the year 2001. Back in 1987, I was awarded the Congressional Medal of Honor. I
got wounded many times by the same guy. I'm still around."

Alvarez has never been awarded the Congressional Medal of Honor, nor has he spent a
single day as a marine or in the 1201*1201 service of any other branch of the United
States armed forces. In short, with the exception of "I'm still around," his selfintroduction
was nothing but a series of bizarre lies.

Alvarez's misrepresentations during the 2007 water district board meeting were only the
latest in a long string of fabrications. Apparently, Alvarez makes a hobby of lying about
himself to make people think he is "a psycho from the mental ward with Rambo stories."
The summer before his election to the water district board, a woman informed the FBI about
Alvarez's propensity for making false claims about his military past. Alvarez told her that he
won the Medal of Honor for rescuing the American Ambassador during the Iranian hostage
crisis, and that he had been shot in the back as he returned to the embassy to save the
American flag. Alvarez reportedly told another woman that he was a Vietnam veteran
helicopter pilot who had been shot down but then, with the help of his buddies, was able to
get the chopper back into the sky.

In addition to his lies about military service, Alvarez has claimed to have played hockey for
the Detroit Red Wings, to have worked as a police officer (who was fired for using
excessive force), and to have been secretly married to a Mexican starlet. As the district
court observed, Alvarez "live[s] in a world, a make-believe world where [he] just make[s] up
stories all the time.... [T]here's no credibility in anything [he] say[s]."

After the FBI obtained a recording of the water district board meeting, Alvarez was indicted
in the Central District of California on two counts of violating 18 U.S.C. § 704(b), (c)(1).
Specifically, he was charged with "falsely represent[ing] verbally that he had been awarded
the Congressional Medal of Honor when, in truth and as [he] knew, he had not received the
Congressional Medal of Honor." Alvarez appears to be the first person charged and
convicted under the present version of the Act.

Alvarez moved to dismiss the indictment, claiming that the Act is unconstitutional both on its
face and as applied to him. The district court denied the motion. Alvarez then pleaded guilty
to the first count, reserving his right to appeal the First Amendment question. He was
sentenced to pay a $100 special assessment and a $5,000 fine, to serve three years of
probation, and to perform 416 hours of community service. This case addresses Alvarez's
timely appeal of the constitutional issue.


Alvarez brings both facial and as-applied[2] challenges to the validity of the Act under the
First Amendment. We review the constitutional question de novo. See Perry v. L.A. Police
Dep't, 121 F.3d 1365, 1367-68 (9th Cir.1997).

We have jurisdiction pursuant to 28 U.S.C. § 1291.


The Act provides:

1202*1202 Whoever falsely represents himself or herself, verbally or in writing, to have
been awarded any decoration or medal authorized by Congress for the Armed Forces of
the United States, any of the service medals or badges awarded to the members of such
forces, the ribbon, button, or rosette of any such badge, decoration, or medal, or any
colorable imitation of such item shall be fined under this title, imprisoned not more than six
months, or both.
18 U.S.C. § 704(b). The prescribed prison term is enhanced to one year if the decoration
involved is the Congressional Medal of Honor, a distinguished-service cross, a Navy cross,
an Air Force cross, a silver star, or a Purple Heart. Id. § 704(c), (d).
Behind nullified law, a man's fight
He feels vindicated by reversal of state statute shielding officers
By Greg Moran
November 13, 2005

For most people, a misdemeanor arrest nearly a decade ago wouldn't be that big of a deal.

Darren Chaker was convicted in 1999 of knowingly filing a false complaint against El Cajon
police officers. The 9th Circuit Court of Appeals reversed the conviction Nov. 3.

For Darren Chaker, his 1996 arrest in El Cajon was much more than that.

Eventually, he made a federal case out of it.

And, in a ruling that has sent a minor tremor through police officer groups and civil
libertarians, he won.

A three-judge panel of the federal 9th Circuit Court of Appeals ruled Nov. 3 that a
law making it a crime to knowingly make a false complaint against a police officer
was unconstitutional.

The panel said the law was flawed because it unfairly punished the content of speech.
Specifically, the court found that the law targets only those who knowingly make a false
complaint about a police officer while leaving unpunished someone who knowingly makes a
false report praising an officer.

The justices said a law that punishes only people who engage in knowingly false speech
that is critical of police officers – and does not sanction people who make knowningly false
comments supportive of police – "turns the First Amendment on its head."

After years of trying to get his conviction overturned, Chaker said he feels vindicated and
is pleased that the ruling could benefit others.

"I was so determined to vindicate myself, because I felt the conviction was improper," he

But the case is probably not over.

San Diego Deputy District Attorney Kelly Rand said her office might ask a larger panel of
the circuit court to review the ruling by the three judges. If that fails, the case could go the
U.S. Supreme Court.

"This case is not over yet," she said.

The state law at issue was enacted in 1995 in the wake of what legislators said were a
flood of complaints against police after the Rodney King beating in 1991.

Rand noted that the law was unanimously upheld in 2002 by the state Supreme Court,
ruling in a case from Oxnard in Ventura County. She said it does not infringe on free
speech because people with complaints against police can still protest on the street, in
forums, or in writings.

Instead, she said, the law specifically targets those who knowingly file a false official
complaint with the department. Police agencies are required to investigate such
allegations, which takes up time and resources.

"If you file a formal complaint against the police that requires an investigation," she said,
"and you know from the beginning it is false, then there is no utility to that complaint other
than to waste public tax dollars."

That is not how Chaker sees it. He said that because he made a complaint about how he
was arrested by El Cajon police in April 1996, he was subsequently branded a criminal.

Chaker, of Beverly Hills, represented himself throughout most of the legal battle, which took
him to state and federal courts several times. But he enlisted the assistance of the
American Civil Liberties Union for the appeal in front of the 9th Circuit panel.

Chaker is no stranger to courtrooms. He has filed numerous suits over the years, and in
1996 was declared a "vexatious litigant" in San Diego County. That is a finding made by
courts against people who repeatedly file lawsuits that are deemed to be lacking in merit or
otherwise unfounded. The designation means no further suits from such a person can be
filed without the permission of the court.

Chaker said his lawsuit-filing days are behind him. He was able to pursue this case
because it was an appeal from a criminal conviction and not subject to the vexatious-litigant

The case began when Chaker was arrested on a misdemeanor theft-of-services charge in
April 1996, for getting his car from a repair shop without paying for it.

Those charges were eventually dismissed by the court.

Chaker filed a complaint with El Cajon police, saying his wrist was twisted and he was
struck twice in the ribs when he was arrested. El Cajon police investigated and found the
complaint unwarranted.

Then, 11 months after the disputed arrest, prosecutors charged Chaker with knowingly
filing a false complaint.

After one jury deadlocked, a second convicted him in February 1999. He was sentenced to
two days in jail, 15 days of public service and three years on probation.

To this day Chaker stands by his complaint. "He twisted my wrist," he said. "In my mind, no,
I did not make a false complaint because he used excessive force."

The officers involved in the case could not be reached for comment.

After the conviction, he appealed and lost, then filed a series of habeas corpus petitions in
the state Supreme Court. None was granted. He also filed a petition in federal court in San
Diego, and lost there, also.

Around that time he enlisted the support of the ACLU, which argued the bulk of the appeal.
Mark Rosenbaum, legal director of the ACLU in Los Angeles, said the ruling affirms the
principle that "citizens should not be stifled."

False complaints can be handled through perjury prosecutions, he said, and not by
punishing speech.

"The public should not be gagged from bringing legitimate concerns about police officers,"
he said. "A core purpose of the First Amendment is to encourage close scrutiny of the
workings of government."

Richard A. Epstein
April 26, 2013
The Incompleteness of the Harm Principle

A response to Jason Pontin’s essay on free speech.

Jason Pontin has written a perceptive analysis of a timeless question:  what changes in
law need to be adopted in order to account for technological advances (see “Free
Speech in the Era of Its Technological Amplification”)? In answering that question, he
takes the right approach by taking up John Stuart Mill’s harm principle, which at its core
makes this claim:

“The sole end for which mankind are warranted, individually or collectively, in interfering
with the liberty of action of any of their number is self-protection … The only purpose for
which power can be rightfully exercised over any member of a civilized community, against
his will, is to prevent harm to others. His own good, either physical or moral, is not a
sufficient warrant.”

This principle is both profound and incomplete. The last sentence announces a strong
antipaternalist manifesto that no government, individual, or group should be able to
reform the private preferences of other individuals. That principle is a welcome recipe for
social peace: if the rule were otherwise, it would be necessary to decide which individuals
or groups occupied the dominant position with respect to other groups. Any interested
group would find it most difficult to choose on neutral principles which group should have
that preferred position. In contrast, a principle of parity works as well for large and
fractured societies as it does for smaller and coherent ones, by making that question
irrelevant. Score one for Mill.

Mill does less well, however, in defining how the harm principle works. One possible
implication of this principle is, as Pontin notes:

The only principle I can imagine working is yours, where “harm” is interpreted to mean
physical or commercial injury but excludes personal, religious, or ideological offense.

Pontin’s version is clearly correct insofar as it excludes “religious or ideological offense”
from the category of what lawyers call “cognizable” harms. That odd term “cognizable” is
meant to capture this dual understanding. The offense that people take at the conduct of
others cannot be dismissed with a wave of the hand, given that these feelings are often
deep and long–lasting. They are in fact real harms, subjectively experienced. So the
willingness to cut them out of the harm principle cannot rest on a simple denial of the fact,
but must rest on the awareness that for the long-term success of the system, each person
must waive that claim against all others, no matter how acute the feeling.

Essentially, the comprehensive judgment is that we all are better off when we have to
suffer the slings and arrows of this sort of abuse than we are when these attacks are
subject to extensive legal control that runs the serious risk of state censorship. The claim,
therefore, behind the offense principle is one of universal privilege to hurt the feelings of
others, and not a factual claim that there is no harm at all. That difference matters,
because when voluntary institutions put speech codes into place for their members, they
are responding to a real harm that by consent can be controlled within a limited forum,
even if the state cannot dictate that same relationship among strangers. Private ordering
has advantages that public ordering cannot match.

Why then the difference? The simplest explanation is that any effort to transport the harm
principle to larger social settings gives everyone a huge incentive to become truly
offended at the speech of others so that they can now have a lever to suppress their
ideas. The angrier you get, the greater your rights. Work yourself into a white heat, and
the world must yield to your outrage. That dynamic will not work in a private setting where
the organizer of the group has strong incentives to prevent any systematic move to
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