The New York Times is reporting that conspiracy theorist Alex Jones has hired Marc Randazza to defend him against the lawsuit filed by the families of the Sandy Hook shooting victims over Jones’s claims that the shooting was some kind of hoax.

Since days after the 2012 shooting at Sandy Hook Elementary School in Newtown, Conn., Mr. Jones has spread bogus theories that the families were “crisis actors” in a government plot to confiscate Americans’ firearms. The families have endured online abuse, physical confrontations and death threats from Mr. Jones’s devotees.

Unfortunately, the Times story finds an unhelpful angle, as telegraphed by its title, “Lawyers for Neo-Nazi to Defend Alex Jones in Sandy Hook Case.” Reporter Elizabeth Williamson probably did not write that headline, but she did write the rest of the story:

Alex Jones, an online conspiracy theorist who claims the Sandy Hook massacre that killed 20 children and six adults was a hoax, has hired lawyers representing a founder of the neo-Nazi Daily Stormer website to defend him against defamation claims brought in Connecticut by families of seven Sandy Hook victims.

[…]

Marc Randazza and Jay Wolman of the Las Vegas-based Randazza Legal Group are defending Mr. Jones in Connecticut. The lawyers also represent Andrew Anglin, the co-founder of the Daily Stormer, who is being sued for harassment by a Montana woman after Daily Stormer followers subjected her to a torrent of anti-Semitic slurs and threats. Mr. Anglin has cited Mr. Jones as an early influence.

It’s a general principle of legal ethics that everyone is entitled to a lawyer. Alex Jones and Andrew Anglin are no exception. They are entitled to a lawyer, so somebody in the legal profession has to represent them. In this case, they’ve picked Marc Randazza.

Scott Greenfield, who manages to write about all legal things before I do, has found some dumb reactions to Randazza’s representation of Jones, and one of them is a common but tiresome response from Above the Law‘s Elie Mystal, who should know better.

And I respect what he’s doing. No, I don’t agree. I don’t think he should be doing it. Just because Nazis deserve a legal defense doesn’t mean you’re a good person for defending them.

That’s a slight variation of something lawyers must hear a lot when they defend unlikable clients: “Just because somebody has to represent them, that doesn’t mean you have to do it. You could have said no.”

That’s a weak argument. Everyone, including guys like Alex Jones and Andrew Anglin, has a right to legal representation. As an ethical matter, the legal profession, considered broadly as an institution, owes them a duty of defense, no matter how unpleasant it may be. And when faced with a repellent duty that someone has to fulfill, there is no virtue in refusing the duty when you that know someone else will have to do it. If Randazza had refused to take this case, then some other poor lawyer would be stuck in his place, having to endure the same stupid crap.

Beyond that, guys like Alex Jones and Andrew Anglin deserve a defense simply because our legal system is built around the assumption that they will get one. Our adversarial system encourages both sides to present their strongest and most aggressive argument in court. So although Jones and Anglin may be bad people, they aren’t necessarily as bad as the opposing party accuses them of being. That doesn’t mean they did the specific things that the lawsuit alleges. That doesn’t mean the people suing them are entitled to everything they’re asking for. A one-sided proceeding does not produce justice. Which is why everyone deserves a defense.

I suppose you could ask, even if everyone deserves a defense, why it is that Randazza seems to represent so many figures from the alt-right.

…he’s taken on a number of far-right clients, including Daily Stormer founder Andrew Anglin, the alt-right site GotNews and its founder Chuck Johnson, right-wing internet personality Mike Cernovich, and the alt right-beloved forum 8chan. Last month, he also entered the case of alt-righters and neo-Nazis accused of conspiracy to riot in Charlottesville.

I think the reason is probably the obvious one: They pass his name around between them. You defend dentists against malpractice suits, you get calls from other dentists. You defend cops from brutality claims, you get calls from other cops. And you defend alt-right trolls, you get calls from other alt-right trolls. That’s just how word-of-mouth marketing works.

(If I had to guess — and guessing is much less work than investigating — I wouldn’t be surprised if Mike Cernovich was the key. Randazza is a long-time legal blogger at Legal Satryicon, and long before Cernovich was a leading figure on the alt-right, he had a perfectly normal legal blog called Crime and Federalism, which he shared with Connecticut lawyer Norm Pattis. In those early days, the legal blogosphere was a small community, and Cernovich almost certainly would have been aware of Randazza. I was part of that community, and I knew both of them.)

Marc Randazza is not some kind of “Nazi lawyer.” He’s a well-known First Amendment lawyer who has helped a lot of different kinds of people, sometimes for free. In a small way, I’m one of them. Randazza’s blog has one of the most hilariously pugilistic Terms and Conditions pages I’ve ever seen, and when I asked him something about it, he told me I could use it on my blog if I wanted to, and he let me list him as the legal contact for Windypundit.

At another time I was thinking of registering a “Windypundit” trademark, and Marc gave me some free advice. He even offered to do the registration for me. (I didn’t take him up on it because it felt funny to ask him to work for free, even though he’d offered.) It would be misleading to say Marc Randazza is my lawyer — he’s never represented me in anything — but I wouldn’t be surprised if our minor interactions meet the technical legal definition of a lawyer-client relationship.

What it comes down to is this: When planning the military defense of a country, you want the battle against the invaders to start at its borders, not in its heartland and cities. The same is true when defending free speech. We want the battles to occur at the fringes, with the weirdos and deplorables, because if we’re fighting for the freedom of speech of people who say ordinary things, we’ve already lost the war.

Marc Randazza is one of the people fighting for us at the fringe.

A while back, the Los Angeles Times published an op-ed by Laura Beth Nielson arguing that there’s a case for restricting hate speech.

As a sociologist and legal scholar, I struggle to explain the boundaries of free speech to undergraduates. Despite the 1st Amendment—I tell my students—local, state, and federal laws limit all kinds of speech. We regulate advertising, obscenity, slander, libel, and inciting lawless action to name just a few. My students nod along until we get to racist and sexist speech. Some can’t grasp why, if we restrict so many forms of speech, we don’t also restrict hate speech.

That’s where things get wobbly:

The typical answer is that judges must balance benefits and harms.

Okay…this feels awkward… Nielsen is a professor of sociology and the director of the legal studies program at Northwestern University, and she’s also a research professor at the American Bar Foundation, whereas I’m just a loudmouthed blogger. And yet…I’m pretty sure she’s wrong.

The limits on our First Amendment rights are narrowly defined, and to the extent that those rights are balanced, it’s not by judges. First Amendment lawyer Ken White explains the distinction, in another LAT piece:

Censorship advocates often tell us we need to balance the freedom of speak with the harm that speech does. This is arguable philosophically, but it is wrong legally. American courts don’t decide whether to protect speech by balancing its harm against its benefit; they ask only if it falls into a specific 1st Amendment exception. As the Supreme Court recently put it, “[t]he First Amendment’s guarantee of free speech does not extend only to categories of speech that survive an ad hoc balancing of relative social costs and benefits. The First Amendment itself reflects a judgment by the American people that the benefits of its restrictions on the Government outweigh the costs.”

Back to Nielson:

At the same time, our regime of free speech protects the powerful and popular. Many city governments, for instance, have banned panhandling at the behest of their business communities. The legal justification is that the targets of begging (commuters, tourists, and consumers) have important and legitimate purposes for being in public: to get to work or to go shopping. The law therefore protects them from aggressive requests for money.

Yeah, I’m not a big fan of some of those anti-panhandling laws either.

Consider also the protections afforded to soldiers’ families in the case of Westboro Baptist anti-gay demonstrations. When the Supreme Court in 2011 upheld that church’s right to stage offensive protests at veterans’ funerals, Congress passed the Honoring America’s Veterans’ Act, which prohibits any protests 300 to 500 feet around such funerals.

Again, Nielson is some kind of expert and I’m not, but…I’m pretty sure that particular law is written in a way that is viewpoint neutral: It doesn’t prohibit protests based on the content of the protesters’ speech. In fact, it doesn’t prohibit protests at all. It prohibits disrupting veterans’ funerals.

Nielson does go on to make an important point in what I think is the best part of her piece:

So soldiers’ families, shoppers and workers are protected from troubling speech. People of color, women walking down public streets or just living in their dorm on a college campus are not. The only way to justify this disparity is to argue that commuters asked for money on the way to work experience a tangible harm, while women catcalled and worse on the way to work do not — as if being the target of a request for change is worse than being racially disparaged by a stranger.

In fact, empirical data suggest that frequent verbal harassment can lead to various negative consequences. Racist hate speech has been linked to cigarette smoking, high blood pressure, anxiety, depression and post-traumatic stress disorder, and requires complex coping strategies. Exposure to racial slurs also diminishes academic performance. Women subjected to sexualized speech may develop a phenomenon of “self-objectification,” which is associated with eating disorders.

These negative physical and mental health outcomes — which embody the historical roots of race and gender oppression — mean that hate speech is not “just speech.” Hate speech is doing something. It results in tangible harms that are serious in and of themselves and that collectively amount to the harm of subordination. The harm of perpetuating discrimination. The harm of creating inequality.

This part of Nielson’s argument is a solid explanation of why hate speech is unethical. In fact, I would go further: One of my recurring themes around here, usually in connection with economics, is that just because some benefit or cost isn’t tangible doesn’t mean it isn’t real. So even if people hurt by hate speech didn’t suffer tangible harms, they may still have suffered harm. For lack of a better word, their “hurt feelings” matter.

The hard part, however, is figuring out what to do about it. It is here that Nielson’s argument runs into the usual problems.

Instead of characterizing racist and sexist hate speech as “just speech,” courts and legislatures need to account for this research and, perhaps, allow the restriction of hate speech as do all of the other economically advanced democracies in the world.

Many readers will find this line of thinking repellent. They will insist that protecting hate speech is consistent with and even central to our founding principles. They will argue that regulating hate speech would amount to a serious break from our tradition. They will trivialize the harms that social science research undeniably associates with being the target of hate speech, and call people seeking recognition of these affronts “snowflakes.”

But these free-speech absolutists must at least acknowledge two facts. First, the right to speak already is far from absolute. Second, they are asking disadvantaged members of our society to shoulder a heavy burden with serious consequences. Because we are “free” to be hateful, members of traditionally marginalized groups suffer.

I acknowledge both of these facts, but I don’t think they get Nielson where she wants to go.

Actually, Nielson never says where she wants to go. Beyond a vague statement that “courts and legislatures need to…perhaps, allow the restriction of hate speech,” she never spells out what remedy she wants for the problem she identifies. So let’s get that out in the open: In order to protect members of traditionally marginalized groups from hateful speech, Nielson wants to make hate speech a crime.

How do you think that will turn out?

Pop quiz: If a middle-aged white guy walking down the street in a business suit calls a black woman a “cunt,” and at the same time in a different part of town a young black male walking down the street in baggy pants and a do-rag calls a white woman a “cunt,” which one of them is more likely to be arrested for hate speech? Which one is more likely to be stuck in jail because they can’t make bail? Which one is more likely to be pressured into pleading guilty because they are locked up? Which one is more likely to serve time in a cage? Which one is more likely to have trouble finding a job because they have a criminal record?

Oh, I’m sure there will be a few high-profile prosecutions of racist white guys — maybe some prosecutor will try to make his bones prosecuting Milo Yiannopoulos or Richard Spencer — but you’re kidding yourself if you think most of the arrests won’t be of people from the same groups that always get arrested for petty crimes: Blacks, Hispanics, poor people, immigrants, and the mentally ill.

History has shown that creating whole new reasons for incarceration rarely works out well for members of traditionally marginalized groups. Make hate speech a crime, and sooner or later we’ll be reading stories about a 45-year-old homeless black man killed by cops who were arresting him for a racist slur.

I’ve been taking some mild heat on Twitter for this response:

Honestly, I can’t even remember why exactly I don’t like Gavin McInnes. Somewhere between his annoying appearances on The Independents and the amazingly awful crap he wrote for the cesspool that is Thought Catalog, I developed my opinion that he is a huge asshole. However, I also support a broad concept of free speech, so I support his right to speak unmolested. The combination just feels a bit weird.

I had a similar response earlier to the news that reputed neo-Nazi Richard Spencer got sucker-punched on video.

There’s something I find fascinating about the tension I feel when this kind of thing happens. I despise neo-Nazis and their fellow travelers, but I support their right to free speech. Those of us who hate what they’re saying have every right to criticize them, and the people who invite them to speak, and the people who come to hear them. But we do not have the right to use violence (or the threat of violence) to stop them from speaking, or to otherwise prevent people from hearing them. That’s not how freedom of speech works.

It’s tempting to allow a few exceptions — Nazis for God’s sake! — but exceptions have a way of swallowing the rule. Shortly after everyone got so excited about a Nazi getting attacked, protesters at a university apparently became violent enough that they shut down a speaking event by a gay Jewish man. That gay Jewish man was Milo Yiannopoulos, a noted alt-right troll, so lots of people cheered his being shut down for his “hate speech,” but note how quickly some people went from cheering a neo-Nazi getting silenced to cheering the silencing of a man the real Nazis would have sent to the gas chamber twice over.

If nothing else, this kind of thing seems like bad strategy. We’ve just elected a president who campaigned against “political correctness” blown all out of proportion, and now protesters are handing him real examples of political correctness gone too far. He even tweeted about the Milo incident and threatened to cut UC Berkeley’s funding. That’s probably an empty threat, but you can bet a lot of his followers agreed with it. And given Trump’s own hatred of free speech, is it really a good idea to be making the argument that some speech deserves to be suppressed? Trump would almost certainly suppress speech that the protesters like.

(Also, this incident got Milo far more attention than he’s had in months. Was that really a good result for the protesters?)

I firmly believe in freedom of speech, and for reasons both principled and practical, I have no trouble supporting the rights of Gavin McInnes, Milo Yiannopoulos, and Richard Spencer to speak and be heard.

However…I still enjoy it when bad things happen to to assholes. Especially Nazi assholes.

There’s been a lot of talk about “fake news” lately, apparently because some people blame it for Donald Trump’s election. Over at Bloomberg View, columnist Noah Feldman, who’s also a professor of constitutional and international law at Harvard, thinks it’s time to do something about it. Basically, he doesn’t think our experiment with free speech is working out:

In the free marketplace of ideas, true ideas are supposed to compete with false ones until the truth wins — at least according to a leading rationale for free speech. But what if the rise of fake news shows that, under current conditions, truth may not defeat falsehood in the market? That would start to make free speech look a whole lot less appealing.

I’ll leave the legal analysis up to the lawyers (Scott Greenfield’s review of this article is scathing), but I think the professor has an interesting analysis of the problem. I think his solution is wrong, which I’ll get to later, but his analysis is still interesting.

But to take the marketplace metaphor seriously means admitting that sometimes, markets fail. Holmes himself gave us the most famous example of market failure when he said, in a different 1919 case, Schenck v. United States, that even “the most stringent protection of free speech would not protect a man in falsely shouting fire in a theatre and causing a panic.”This thought experiment in turn led Holmes to his most famous formulation of free speech doctrine: that the question in every case is whether the words “create a clear and present danger.”

Falsely shouting fire in a theater is a perfect example of market failure in the communication of ideas. The person shouting knows he is lying — but others don’t know, and won’t have time to check. The words will cause an immediate panic, even if everybody is acting rationally, because the only logical thing to do is to get out, and get out quickly.

The “marketplace of ideas” is mostly a metaphor, not a literal marketplace, but putting aside the questionable value of Holmes’s example, this is actually a fairly good analogy to the kind of market failure that can occur because of asymmetric information between the parties.

As the Nobel Prize winning economist George Akerlof showed in his classic 1970 article, “The Market for Lemons,” asymmetric information can systematically distort the quality of what’s available in the market. In his stylized example, if good cars and lemons are both for sale, and consumers know this but don’t know which are which, they will be willing to pay the average price. That will lead the sellers to withhold the good cars, which could fetch a higher price — but that in turn will lead consumers to lower the price they are willing to pay. The resulting spiral of adverse selection leads to market failure.

As it happens, it’s a lot more expensive to generate true news stories than false ones. News requires reporting and research and institutional structures like editors and fact checkers to support them. Fake news only takes one person’s imagination. And there is certainly information asymmetry between the person who writes a story and the person who reads it. Applying the Akerlof analysis suggests that fake news could conceivably drive out true news.

This is an interesting example of applying economic thinking to a problem that is not normally considered economic in nature. “The Market for Lemons” argued that in the presence of asymmetric information about quality, buyers wouldn’t know how to identify quality products and therefore the market would not reward sellers for quality. Sellers of high-quality products would therefore leave, and the process would spiral down until only very low-quality products were trading. In the worst case, the market would disappear completely.

Ackerlof’s paper takes asymmetric knowledge about product quality as a given, but in real-world markets it’s often not clear whether asymmetric information is a serious problem. That’s not a slam on Ackerlof. He was clear about his assumptions, and there’s strong evidence that asymmetric information does cause real problems in some markets. (It rules how insurance plans are designed and sold.) But there’s also evidence that many real-world markets have found ways to circumvent the problem.

The most common solution is for sellers to try to reduce the information asymmetry by establishing and maintaining a reputation. This makes use of the fact that buyers will want to purchase the same product over and over, so if a seller has a history of producing good products, buyers can rely on that history to guide their purchasing decisions. This sets up a positive feedback loop: The seller’s reputation gives buyers confidence in the product and therefore a willingness to pay more money, and that increase in potential future revenue makes it valuable for sellers to have a good reputation, which makes it worthwhile for sellers to build a good reputation by expending the effort to produce a quality product.

Another common solution is for buyers to try to reduce the information asymmetry by relying on third parties to provide reliable assessments of product quality. I had to buy a snowblower for the first time this year, and I relied on information from knowledgeable friends, Consumer Reports, a variety of web sites, and online buyer reviews at Home Depot, Lowes, and Amazon. In this age of the internet, information is easier to find than it’s ever been.

(Other solutions, such as offering easy returns and product warranties are effective as well, but I can’t see a way to apply them to news.)

Feldman, however, doesn’t seem interested in any of these solutions. He goes straight to stepping on necks:

The classic solution to market failure is regulation. Holmes, in his fire-theater example, certainly believed that was permitted by the First Amendment.

The question is whether government regulation of fake news would be justified and lawful to fix this market failure.

Justified? No, not even under Holmes’s example. If you’re in a crowded theater and someone shouts “Fire!”, your best move is to get out as fast as possible. You don’t have time to reflect on the shouter’s claim and debate it with your fellow theatergoers. The “market failure” in shouting fire in a crowded theater is that there’s no time for the “marketplace of ideas” to operate.

Reading the news doesn’t come with that kind of urgency. There’s plenty of time to research stories and read what other people are saying about them.

Obviously, it would be better if the market would fix the problem on its own, which is why attention is now focused on Facebook and Google. But if they can’t reliably do it — and that seems possible, since algorithms aren’t (yet) fact-checkers — there might be a need for the state to step in.

Here’s where Feldman tries to play a trick on his readers. He starts by saying the problem is that Facebook and Google are unable to function as fact checkers, which is fair enough, and then he says the state should “step in.” But he doesn’t just want the government to provide the fact checking that he says is needed. He wouldn’t need to write an article about that because fact-checking isn’t legally controversial: Government employees are free to research the statements of fact within a news story and publish their evaluation, and government press offices do that all the time already.

No, what Feldman wants is for the government step into the marketplace of ideas and pick winners by force, which is why he runs into concerns about constitutionality.

Under current First Amendment doctrine, that wouldn’t be allowed. The Supreme Court has been expanding protections for knowingly false speech, not contracting it. And it would be extremely difficult to separate opinion from fact on a systematic basis.

From there, Feldman’s argument dissolves into attacking a straw man with a flurry of hand waving:

But we shouldn’t assume that the marketplace of ideas works perfectly. And given that, we shouldn’t be slavishly committed to treating the marketplace metaphor as the basic rationale for free speech.

Perfection is not the standard. I don’t think anyone believes the marketplace of ideas is perfect. But if you propose to replace the free market with something else, you should at least do your audience the courtesy of trying to explain why your proposed solution would be better, and Feldman doesn’t even try. It’s like he thinks it’s just obvious that of course government can do this.

The current freakout over false news depends on two major items of concern: (1) That fake news is produced by liars, and (2) that fake news is believed by fools. Feldman’s proposal is utterly lacking in detail, but I’d love to hear why he’s so sure that his solution will not be created and carried out by more of the same liars and fools.

For Christ’s sake, we’ve spent the last year and a half watching a gruesome demonstration of how government leaders are chosen. What in God’s name makes anyone think those people should have the final word on what’s true in the news?

False news that hinders public discussion and encourages irrationality may have a role in the marketplace; but it doesn’t contribute to the good functioning of democracy.

Speaking of democracy, politicians are notorious liars. Unsurprisingly, so are a lot of the government functionaries who work for them. I’m not talking about crazy anti-government conspiracy theories, either, I’m talking about the routine lies that government employees tell to keep their jobs and make them easier: Cops lying about incidents, experts exaggerating their credentials, and department heads who refuse to recognize facts that would be inconvenient for the continued funding of their departments.

I’m talking about the Drug Enforcement Agency refusing to recognize the medical benefits of marijuana long after its acceptance by the medical community. I’m talking about the Tuskegee syphilis experiment. I’m talking about the numbing sameness of the lies that many cops tell on the stand. I’m talking about the legal fictions that label people as drug dealers when they don’t deal drugs, as pimps when they aren’t pimping anyone, and as money launderers when they aren’t laundering money.

I’m sure Professor Feldman imagines that when the government implements his fake news suppression program they will decide which news is real or fake with the help of wise and honest scholars (such as himself). I think it’s more realistic to assume it will be staffed by people like TSA agents, DMV clerks, and those public school administrators who call the cops when a kid makes a shooting gesture with his fingers.

A few months ago I complained that New York State Attorney General Eric T. Schneiderman and other state Attorneys General appeared to be starting a campaign to intimidate climate skeptics and/or deniers under the guise of investigating ExxonMobil.

Now comes news of a counterattack: Rep. Lamar Smith (R-Tex.) has issued congressional subpoenas for Schneiderman and Massachusetts Attorney General Maura Healey, along with nine climate activist groups, requesting all relevant communications between the groups and the attorneys general in order to investigate a possible conspiracy “to act under color of law to persuade attorneys general to use their prosecutorial powers to stifle scientific discourse, to intimidate private entities and individuals, and deprive them of their First Amendment rights and freedoms.”

I have two responses to this development:

(1) AH-HA-HA-HAHA! LIVE BY THE SWORD, DIE BY THE SWORD, MOTHERFUCKERS!!! PAYBACK’S A BITCH, AIN’T IT?

and

(2) This is really very wrong.

I have no actual sympathy for AGs Schneiderman and Healey. They are government employees, public servants subject to oversight and review. They started this, and for their attempts to stifle free speech they deserve to be gang-subpoenaed by congress, repeatedly.

The climate activist groups, on the other hand, are citizens exercising their free speech rights to discuss matters of public importance and — to the extent that they communicated with various attorneys general — petition the government. They don’t have to explain themselves to anyone.

As I said before, this is not how science is supposed to work. That’s not how debate over public policy is supposed to work.