Court Tells Former NRA President The First Amendment Protects Far More Than Polite Speech

from the what's-this-about-the-2nd-Amendment-protecting-the-First? dept

Here in America, unpleasant speech is still protected speech, something a federal court recently reminded a plaintiff. (h/t Adam Steinbaugh)

The person bringing the lawsuit is Marion Hammer, the first female president of the National Rifle Association. A frequent target of online criticism, hate mail, and harassment, Hammer decided to sue a handful of her many, many detractors. The lawsuit [PDF] alleges an ongoing campaign of harassment and cyberstalking engaged in by the four defendants.

The suit was filed in July. Three of the four defendants failed to respond. The fourth, Lawrence T. “LOL” Sorensen, responded with a motion to dismiss for failure to state a claim. Sorensen argued his communications with Hammer were protected speech. The judge agrees. In Robert Hinkle’s short decision [PDF], the judge reminds Hammer that the First Amendment protects a lot of speech people don’t like, even when it’s targeting them.

Mr. Sorensen sent Ms. Hammer two emails, each transmitting one or more photographs showing injuries from gunshot wounds. Sending these unsolicited to anyone, even a public figure who advocates gun rights, was inappropriate, indeed disgusting. As Ms. Hammer correctly notes in response to the motion to dismiss, “there are limits on how people can treat those with whom they disagree.” Or at least on how people should treat those with whom they disagree. Emails like these should not be sent in a civilized society.

That does not mean, though, that emails like these can be made criminal or even tortious. Tolerating incivility, at least to some extent, is a price a nation pays for freedom. There is no clear line between incivility, on the one hand, and effective advocacy, on the other. Turning loose a legislature, judge, or jury to ferret out incivility would deter and even sometimes punish the robust public discourse that is essential to freedom—the public discourse whose protection is the main object of the First Amendment.

The judge notes that simply finding someone else’s behavior unseemly isn’t a federal case, especially not when First Amendment rights are on the line. He notes Sorensen never threatened Marion Hammer “explicitly or implicitly” when he sent her photos of gunshot wounds. All the email said was “Thought you should see a few photos of handiwork of the assault rifles you support.” The second was along the same line, noting that the attached photo of a dead John F. Kennedy showed the damage done by an “outdated military rifle” and that today’s rifles were far more powerful and “far more destructive.”

The court reminds Hammer the First Amendment doesn’t work the way she wants it to work. If the First Amendment only protected polite discourse, it would be useless. Not only that, but the sending of gunshot wound photos to an advocate of gun ownership is not harassment or cyberstalking. It’s a discussion of a matter of public interest, even if the discussion is largely one-sided.

The photographs were germane to the policy debate that Ms. Hammer regularly participated in and Mr. Sorensen apparently sought to join. Sending these photographs, at least in these circumstances, was not tortious. And treating them as tortious would violate the First Amendment.

As Adam Steinbaugh notes in his follow-up tweet, it would be nice to have a federal anti-SLAPP law in place to deter lawsuits like these. If Hammer felt she may have to pay Sorensen’s legal fees for bringing a misguided lawsuit against him, she may have decided to leave him out of it. Now, Sorensen’s out time and money for doing nothing more than engaging in protected speech.

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Comments on “Court Tells Former NRA President The First Amendment Protects Far More Than Polite Speech”

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58 Comments
W. M. Bucket (s'il vous plait: prononcer boo-kay) says:

So, 3 out of 4 so accurate that aren't contested.

Three of the four defendants failed to respond.

Guess those’ll be default judgments = WIN.

As usual, Techdirt cheers incivility, esp against "political" opponents who are engaging in thier protected advocacy.

Marion Hammer should send the anti-Constitutionalist gun-grabber images of DEAD victims who didn’t have a gun to defend selves with. — BUT WON’T because irrelevant emotional and gruesome imagery isn’t the way conservatives advocate.

But if I was able to post here images of the thousands Palestinian victims of Israeli Defense Forces protesting the wall and apartheid society, you’d go berserk. — Won’t even be able to stand this little bit of text being seen without a warning and extra click!

Techdirt’s notion of free speech is to protect yourselves from what don’t want to see. — SO YOU AGREE with Hammer IN PRINCIPLE!

bob says:

Re: So, 3 out of 4 so accurate that aren't contested.

Techdirt’s notion of free speech is to protect yourselves from what don’t want to see. — SO YOU AGREE with Hammer IN PRINCIPLE!

What evidence do you have to support the idea that the writers of techdirt support that misinterpretation of the 1st amendment? Especially since that is exactly opposite what the article was stating.

Jeff Green (profile) says:

Re: So, 3 out of 4 so accurate that aren't contested.

It is entirely possible that 3 out of 4 defendants don’t actually exist and non-existent defendants frequently keep their own council.
Personally I have always regarded the American worship of free speech above all else as downright silly but I’ve not seen Techdirt wandering from that stance. The IDF are far too often a bunch of vile thugs who use the excuse that there are vile thugs on the other side as an excuse to do whatever the hell they like but it is hardly relevant here.
Sending pictures of the outcome of gunshots to an advocate of everyone carrying and using their weapons is even in my jaundiced anti-American view of Free Speech so completely clearly uncriminal that I can’t understand why you bothered posting it, still you have the right to your opinion, however silly.

James Burkhardt (profile) says:

Re: So, 3 out of 4 so accurate that aren't contested.

Failed to Respond =/= in the wrong. Depending on what pre-suit efforts were made to resolve the conflict, the filing of the suit may have had the same effect as a strongly worded letter/threat would another. That is, they choose to stop their actions. And then they ignored the suit, because Americans love to do that. And many may have ignored suits because they can’t afford a lawyer, not realizing that some response is best.

Also, acknowledging the legality of the incivility, does not invalidate the acknowledgement of its incivility, nor does it cheer incivility. It only notes that a court is not way to remedy that behavior. No where does the author praise the incivility. Only says it is legal. Which as Popehat notes, if your only defense is that it’s not illegal to say, it’s probably not speech you should engage in. But the Moral/ethical questions (“should/should not”) of civil speech are not legal (“Can/can not”) arguments.

Stephen T. Stone (profile) says:

Re:

Techdirt’s notion of free speech is to protect yourselves from what don’t want to see.

Well…yeah. You have the absolute right to protect yourself from speech you do not want to see—but that right does not extend into a right to block someone else’s speech entirely. I consider the Westboro Baptist Church’s speech to be offensive and reprehensible; that subjective opinion does not grant me an objective legal right to silence them in any way. I can simply ignore them—or, better yet, counter them with less reprehensible speech/expression—but I cannot force them into silence just because I hate their “God Hates Fags” signs.

Anonymous Coward says:

Re: So, 3 out of 4 so accurate that aren't contested.

“But if I was able to post here images of the thousands Palestinian victims of Israeli Defense Forces protesting the wall and apartheid society, you’d go berserk.”

No, I would thank you for proving how harmful guns are. And why Persia Palestinians are victims, most of them at least.

The one good thing i see from this piece of news is that, if the NRA director doesn’t want to see the consequences of what they’re advocating for, they at least have enough of a conscience to know that what they’re doing is evil. They just are too greedy to stop.

“BUT WON’T because irrelevant emotional and gruesome imagery isn’t the way conservatives advocate.”

Thanks for this little bit of alternative facts, but I’d rather have actual facts.

Anonymous Coward says:

when the shoe's on the other foot ...

Displaying gruesome pictures as a form of protest, once a common tactic by anti-abortion activists, is one Constitution “right” that has been restricted by US courts.

https://slate.com/news-and-politics/2013/08/gruesome-abortion-photos-and-the-supreme-court-the-justices-refuse-to-stand-up-for-the-first-amendment-rights-of-protestors.html

Hopefully the “right to be offensive” (or not) will apply equally to both liberals and conservatives when they’re protesting controversial emotional issues.

Anonymous Coward says:

Re: when the shoe's on the other foot ...

I remember seeing those gruesome abortion pictures and laughing a lot.

The bullet ridden people are real.

A bloody baby head on salad tongs is not real and just being unnecessarily grotesque.

I really don’t know why I need to explain to you that people don’t rip baby heads off from the womb from salad tongs and why just being a lying dick might not get you many points with the judge but here we are.

People think all exploration past the Van Allen belt is fake.

The world is flat.

And that democrats rape children in pizza parlors.

James Burkhardt (profile) says:

Re: Re: when the shoe's on the other foot ...

Yes, but that’s not in the logic of the court rulings refrenced by that post..

A better tack might have been to lean on the legal rulings in this case, and highlight that the judge noted that this images were being sent as a valid support of an argument that the plaintiff chose to be a part of by his own decisions, and were narrowly spoken only to him.

Contrasting the abortion protest cases, where it was a restriction based on the obscene content being thrust upon everyone, including those who chose to otherwise not be part of the debate, and those for whom such images are highly damaging.

Anonymous Coward says:

Re: Re: when the shoe's on the other foot ...

“Tactically and morally, there’s little distinction between anti-abortion zealots and anti-gun zealots.”

The two groups, being at opposite ends of the political spectrum, almost never agree on anything. In this case, an exclusively “woman’s rights” issue and a mostly “man’s rights” issue. The one thing they do agree on, however, is that when the baby’s father (alone) is the one who decides to abort his child, it’s murder.

https://www.usatoday.com/story/news/nation-now/2018/08/02/spiking-drink-abortion-pill/894804002/

I’ve never quite understood the legal concept behind this, unless we accept the notion that equality does not really exist and a mother’s legal rights are far superior than a father’s legal rights. And that an unborn fetus can simultaneously be both a person in the eyes of the law and not a person, depending on the situation, in a kind of legalized cognitive dissonance.

Anonymous Coward says:

Re: Re: Re:2 when the shoe's on the other foot ...

But is a fetus considered “her own body” or distinct person with legal rights? And if the answer is “her own body” then how is getting an involuntary abortion any different than getting an involuntary amputation, which while certainly not a nice thing to have done on anyone, would not conceivably be considered murder?

I’m not an ideological “pro-lifer” but one who finds the legal aspects of pre-term babies confusing. For instance, why is it that (secretly pregnant) teen-age girls who give birth in a public toilet and pull the flush will be tried for murder (same as if they killed someone else’s child) yet had they instead gone to a Planned Parenthood clinic that week and got a late-term abortion, everything would be perfectly legal? It’s a very fine line that separates the crime of murder from the non-crime of abortion. and unlike many other types of legal offenses such as speeding or illegal drug possession, the crime(s) and penalites are essentially binary rather than incremental.

As with assault weapons, abortion is something that modern technology has created, a highly contentious issue today that was never even a concern for previous generations. I’m going to guess that Techdirt, as a virtual stag party, has never touched on that distinctly female issue, and probably all the better.

Anonymous Coward says:

Re: Re: Re:3 when the shoe's on the other foot ...

Late term abortion isn’t at 8.75 months bro. You would do well to learn a teeny bit about abortion before you go spouting off your ignorance like, well an “ideological pro-lifer.” Seriously abortion has been contentious since at least Roman times.

An example that might help you understand seemingly arbitrary additives better is put thusly. A teeny imaginary line seperate smoking weed legally in Colorado and going to jail for it in Utah.

Wendy Cockcroft (user link) says:

Re: Re: Re:3 when the shoe's on the other foot ...

Okay, as a woman, I’ll bite:

I’m not an ideological "pro-lifer" but one who finds the legal aspects of pre-term babies confusing.

I’m not an ideological conservative but I do share your confusion. Mind you, "Pro-life" is a misnomer, they’re actually anti-choice and the ideology is all about controlling and restricting female sexuality. They’re not interested in protecting the unborn, that’s just a by-product of their activism. Consider this: there are fewer maternal deaths — and abortions — in blue states where the welfare is more generous. This is because pregnancy requires medical care throughout the pregnancy, not just at the end when it comes out.

For instance, why is it that (secretly pregnant) teen-age girls who give birth in a public toilet and pull the flush will be tried for murder (same as if they killed someone else’s child) yet had they instead gone to a Planned Parenthood clinic that week and got a late-term abortion, everything would be perfectly legal?

The law differentiates between pre-born and post-born. Once it’s out, it’s a person in the eyes of the law. The trouble with granting full personhood to the unborn as we in Ireland previously did is that it pitted the mother against her own foetus and basically sided with the foetus. On paper, that’s great. In practice, don’t get me started. Okay, I’ll start:

http://on-t-internet.blogspot.com/2018/05/irelands-8th-amendment-referendum-what.html

http://on-t-internet.blogspot.com/2018/05/irelands-8th-amendment-repeal-why-are.html

http://www.patheos.com/blogs/lovejoyfeminism/2012/10/how-i-lost-faith-in-the-pro-life-movement.html

It’s a very fine line that separates the crime of murder from the non-crime of abortion. and unlike many other types of legal offenses such as speeding or illegal drug possession, the crime(s) and penalites are essentially binary rather than incremental.

Whatever. When pregnancy robs you of your own personhood and effectively renders you a ward of the state with no rights of your own, that’s a problem.

As with assault weapons, abortion is something that modern technology has created, a highly contentious issue today that was never even a concern for previous generations.

Wrong, wrong, wrong.

https://en.wikipedia.org/wiki/History_of_abortion

You might be surprised to learn that the anti-abortion movement is the recent thing.

I’m going to guess that Techdirt, as a virtual stag party, has never touched on that distinctly female issue, and probably all the better.

Lurk moar. Ignorant authoritarians hop in to TD comments to opine on the subject on a regular basis, which is what prompted the above blog posts from On T’internet. If they were truly pro-life they’d be screaming for gun control and better welfare provision for pregnant women and for poor children, but they don’t so excuse me for having no respect for them and their lies and hypocrisy.

I’m not ideologically pro-life, but damn it I see a correlation between making ob-gyn care and meds (including contraceptives of every kind) available to those who need it and welfare and healthcare during and after pregnancy for women and children, and the abortion rate plummeting, so that’s what I recommend. I’m also horrified by gun worship and believe that criminals and loons should not have easy access to them. I suppose that makes me actually pro-life.

Wendy Cockcroft says:

Re: Re: Re:2 when the shoe's on the other foot ...

** you sound like a pro-lifer, all right.**

Anti-choice, Thad. Anyone who cared about the “all lives matter” thing wouldn’t discriminate. Anti-choicers think of women as talking incubators with no rights and our health means little to them. That “love them both” thing is downright cruel and evil in practice, which is why Ireland repealed its 8th Amendment earlier this year.

Lawrence D’Oliveiro says:

Re: Re: when the shoe's on the other foot ...

Tactically and morally, there’s little distinction between anti-abortion zealots and anti-gun zealots.

OK, I’ll bite.

Anti-abortion “pro-lifers” tend to be in favour of the death penalty. Real human lives seem to count less to them than mere fertilized eggs.

Gun-control advocates tend to be in favour of saving real human lives, rather than sacrificing them.

Which do you think sounds like a consistent position?

Wendy Cockcroft (user link) says:

Re: Re: Re: Re:

They tend to be more efficient at killing large numbers of people quickly. Consider this: you get two shells in a shotgun and have to reload after firing them. You kill by aiming and shooting at point blank range.

In a machine-gun with multiple bullets per clip, you spend less time reloading and can kill more people from further away by swinging your gun across as you shoot.

nasch (profile) says:

Re: Re: Re:2 Re:

Not to come across like a gun nut or anything but…

you get two shells in a shotgun and have to reload after firing them.

With some shotguns. Others you can load six shells. There are military issue shotguns that are drum fed automatic fire weapons, though I don’t know that civilians can get their hands on those.

You kill by aiming and shooting at point blank range.

Depending on what you mean by point blank range. Effective range for a shotgun could be 30 yards or more, depending on many factors. Personally I wouldn’t call that point blank.

In a machine-gun with multiple bullets per clip

Machine guns generally don’t have magazines (which is what almost everyone means by "clip"). They are usually belt fed, and are designed for sustained fully automatic firing. In the US, they are expensive, rare, and difficult to obtain. You’re probably thinking of semi-automatic rifles, which are easy to get at a variety of stores.

can kill more people from further away by swinging your gun across as you shoot.

That is not how guns are used unless firing indiscriminately into a crowd. Such incidents are dwarfed by the number of one-on-one murders using handguns. If you really want to do something about people being killed by guns in the US, you have to do something about the handguns, because they’re the real problem. Death by rifle is a much smaller issue even if that’s what gets on the news.

Should you be in a different country, perhaps things are different for you there – and then of course you wouldn’t have the 2nd amendment to worry about.

Wendy Cockcroft (user link) says:

Re: Re: Re:3 Re:

Thank you for correcting me. I know sod all about guns except what I see in the media. I do believe that restricting possession of any gun to sensible law-abiding folk would be a good start. As others have pointed out, domestic violence is a good indicator as to whether or not someone is likely to escalate to murder. It might be worth starting there.

Anonymous Coward says:

Re: yes, "hate speech" really is a crime

You are correct. Even constructing macabre Halloween-type art that is not directed at any particular person can be considered a death threat, which this guy got 6 months in jail for doing:

https://www.whsv.com/content/news/Court-Virginia-man-who-hung-noose-in-yard-not-protected-by-1st-Amendment-402493176.html

ECA (profile) says:

civilized society

That is interesting, and I will give an explanation..
Dogs have a long history with mankind..
From Wild to Equal Family member and protector, then to a Domesticated Lump on your floor.

Why get a Large dog? now? friendship? Partner in crime? Protector? something to scare your Ex?
Lie in a large City and train your dog to Spit, in the Corner.. Is that FAIR?? Or do you wander behind him along the street to pick up his waste??

But this is killing them. They need Room they need a job. they need Attention you arnt giving them..SQUIRREL..

You need abit of WILD in your life also..that way you wont be so FAT..

Toom1275 (profile) says:

Instead of going federal, it sounds like she should have used state-level anti-abuse laws. If someone keeps sending abuse after being told to stop, a protective order can be sought. If it continues after granting, then using the court to punish the abusive turdlings can happen. Nothing in the 1A gives the defendants the right to force their vile hate to be seen by another.

Two things, though:
One, a plaintiff can only really act on their own behalf. They can get a "Stop sending this shit to me" protective order, but they can’t get a "stop sending this shit to us one.

And, of course, 1A would completely protect the defendants if they had decided to write blogs instead of emails.

Thad (profile) says:

Re: Re:

From context, it was clear that the images were not threats: “Thought you should see a few photos of handiwork of the assault rifles you support” clearly indicates that Sorenson is attempting to disgust and shame Hammer, not threaten her.

Hammer does not appear to have made a claim of harassment. The court can’t rule on a harassment claim if none is presented.

James Burkhardt (profile) says:

Re: Re:

In threats, context matters.

“Man, it would be horrible if something happened to that [insert valuable property here], you need fire insurance” is a friendly comment when made by a friend.

“Man, it would be horrible if something happened to that [insert valuable property here], you need fire insurance” is a threat when made by a representative of a protection racket.

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