Judge Posner Smacks Around Cabbies For Thinking That Cities Allowing Uber Violates Their 'Property Rights'

from the that's-not-how-this-works dept

It's no secret that cab companies and many cab drivers don't much like Uber and Lyft. Competition is tough. And cabs in most cities have survived thanks to artificial limits on competition through medallions and the like. This has always been a stupid, and frequently corrupt, system. For years, before Uber and Lyft came along, people talked about the ridiculousness of artificially limiting competition in this manner, but it was only once those companies came along that the true ridiculousness was made clear. While some forward looking cabbies have embraced these and similar systems, others have been fighting the new reality, often in fairly ridiculous ways. In Milwaukee and Chicago, cab companies sued those cities, arguing that allowing this type of competition amounted to a Fifth Amendment violation, in the form of "taking private property for public use without just compensation." What private property, you might ask? Well, according to the cab companies, the artificially restricted competition is their property. No, really.

The district courts didn't buy it, and now that it's moved up to the 7th Circuit appeals court, Judge Richard Posner isn't buying it either. In the two decisions -- Joe Sanfelipo Cabs v. City of Milwaukee and Illinois Transportation Trade Association v. Chicago, Posner makes quick work of explaining to these folks that the government restricting competition from entering your market isn't a property right that those who benefit from it get to make claims over (though he does, unfortunately, say that patents are a form of property in dismissing the "absurd" claims from the cabbies):

The plaintiffs’ contention that the increased number of permits has taken property away from the plaintiffs without compensation, in violation of the constitutional protection of property, borders on the absurd. Property can take a variety of forms, some of them intangible, such as patents. But a taxi permit confers only a right to operate a taxicab (a right which, in Milwaukee, may be sold). It does not create a right to be an oligopolist, and thus confers no right to exclude others from operating taxis.

Posner notes that if there had been an explicit promise not to change regulations, that might have been one thing, but there was not. Similarly, he admits that the taxi permits are property, but that's unrelated to the issuing of more permits:

The taxi permits issued by the Milwaukee city government are property, but have not been “taken,” as they do not confer on the holders a property right in, amounting to control over, all transportation by taxis and taxi substitutes (such as Uber) in Milwaukee.

And then he basically says "welcome to a market economy, cabbies":

Undoubtedly by freeing up entry into the taxi business the new ordinance will reduce the revenues of individual taxicab companies; that is simply the normal consequence of replacing a cartelized with a competitive market. But the plaintiffs exaggerate when they predict ruination for themselves. Buses and subways and livery services and other taxi substitutes have not destroyed the taxi business; nor has Uber or Lyft or the private automobile or for that matter the bicycle. Taxicabs will not go the way of the horse and buggy— at least for some time.

That's from the case against Milwaukee. The Chicago ruling is pretty similar:

All seven of the plaintiffs’ claims are weak. The first is that allowing the TNPs into the taxi and livery markets has taken away the plaintiffs’ property for a public use without compensating them. A variant of such a claim would have merit had the City confiscated taxi medallions, which are the licenses that authorize the use of an automobile as a taxi. Confiscation of the medallions would amount to confiscation of the taxis: no medallion, no right to own a taxi, ... though the company might be able to convert the vehicle to another use. Anyway the City is not confiscating any taxi medallions; it is merely exposing the taxicab companies to new competition—competition from Uber and the other TNPs.

“Property” does not include a right to be free from competition. A license to operate a coffee shop doesn’t authorize the licensee to enjoin a tea shop from opening. When property consists of a license to operate in a market in a particular way, it does not carry with it a right to be free from competition in that market.

Posner doubles down on just how dumb this argument is by the cab companies:

Taxi medallions authorize the owners to own and operate taxis, not to exclude competing transportation services. The plaintiffs in this case cannot exclude competition from buses or trains or bicycles or liveries or chartered sightseeing vehicles or jitney buses or walking; indeed they cannot exclude competition from taxicab newcomers, for the City has reserved the right (which the plaintiffs don’t challenge) to issue additional tax medallions. Why then should the plaintiffs be allowed to exclude competition from Uber? To this question they offer no answer.

All that the City gives taxi‐medallion owners is the right to operate taxicabs in Chicago.... That isn’t a right to exclude competitive providers of transportation.

Perhaps more importantly, though, Posner also shoots down the argument that it's unfair that Uber gets to operate under a different regulatory regime:

The plaintiffs argue that the City has discriminated against them by failing to subject Uber and the other TNPs to the same rules about licensing and fares (remember that taxi fares are set by the City) that the taxi ordinance subjects the plaintiffs to. That is an anticompetitive argument. Its premise is that every new entrant into a market should be forced to comply with every regulation applicable to incumbents in the market with whom the new entrant will be competing.

Here’s an analogy: Most cities and towns require dogs but not cats to be licensed. There are differences between the animals. Dogs on average are bigger, stronger, and more aggressive than cats, are feared by more people, can give people serious bites, and make a lot of noise outdoors, barking and howling. Feral cats generally are innocuous, and many pet cats are confined indoors. Dog owners, other than those who own cats as well, would like cats to have to be licensed, but do not argue that the failure of government to require that the “competing” animal be licensed deprives the dog owners of a constitutionally protected property right, or alternatively that it subjects them to unconstitutional discrimination. The plaintiffs in the present case have no stronger argument for requiring that Uber and the other TNPs be subjected to the same licensure scheme as the taxi owners. Just as some people prefer cats to dogs, some people prefer Uber to Yellow Cab, Flash Cab, Checker Cab, et al. They prefer one business model to another. The City wants to encourage this competition, rather than stifle it as urged by the plaintiffs, who are taxi owners.

And, later:

There are enough differences between taxi service and TNP service to justify different regulatory schemes, and the existence of such justification dissolves the plaintiffs’ equal protection claim. Different products or services do not as a matter of constitutional law, and indeed of common sense, always require identical regulatory rules.... If all consumers thought the services were identical and that there was therefore no advantage to having a choice between them, TNPs could never have gotten established in Chicago.

There are all sorts of arguments people can make about whether or not companies like Uber and Lyft are good (and I'm a fan of them), but arguing that they're "taking property" away from cab medallion holders is not a legitimate argument.

Filed Under: car hailing, chicago, competition, medallions, milwaukee, property, property rights, richard posner, ride sharing, taxis

Appeals Court Rejects Prior Restraint In Defamation Case; Could Have Gone Further

from the make-it-so dept

As highlighted by the folks at EFF, Judge Richard Posner has ruled in an appeal on a defamation case, tossing out an injunction against two individuals who defamed two other people. The details of the actual case fall into the "somewhat nutty" category, involving some religious stuff that we'll skip over as not relevant. What you need to know is that two people (Patricia Ann Fuller and Paul Hartman) were sued and found to have defamed Kevin McCarthy and Albert Langsenkamp. Some of those people go by other names and titles (including Mr. Langsenkamp referring to himself as a Papal Knight of the Holy Sepulchre), but we'll leave that aside. The court found in favor of the plaintiffs and said that the defamation occurred. The only real issue on appeal was whether or not the judge's decision to issue a very broad injunction against Hartman and Fuller was appropriate.

And here we come to an issue that comes up semi-frequently in discussions of defamation cases: if you are found guilty of defamation, can you be (1) forced to take down the defamatory content and (2) barred from saying it again (or saying something like it)? For the most part, courts have said that you cannot have an injunction against defamation, because that's classic prior restraint in violation of the First Amendment. That is, the government cannot tell someone "you cannot say that." So, in most cases, the remedy for defamation is a monetary one (along with the satisfaction of a court ruling saying that what was said about you was false). There are some fairly narrow exceptions in some courts that have argued that it's okay to tell someone that they cannot repeat the very same statements found to be defamatory.

However, while there are a bunch of rulings on this topic, it's never quite gone to the Supreme Court, so there's at least some ambiguity. In this case, the District Court judge basically ignored all of that and issued a massively broad injunction. Without having the jury specifically determine which statements were defamatory, the judge issued an injunction saying that they couldn't publish any of the statements that the plaintiffs claimed were defamatory -- or "any similar statements" -- and further ordered Hartman to take down his entire blog.

That's pretty clear prior restraint, and indeed the three judges on the appeals court all agreed, throwing the case back to the district court. As Posner noted, the lawyers for Fuller and Hartman were... shall we say... not the most professional, which may have contributed to the result:

The conduct of the litigation in the district court by the lawyer representing Fuller and Hartman showed, as the district judge explained in granting the request for attorney’s fees, a serious and studied disregard for the orderly processes of justice. That disregard has persisted on appeal. Many of the grounds on which Fuller and Hartman seek reversal were waived, are frivolous, or are incomplete, with the important exception of the permanent injunction entered by the district judge, to which we devote the balance of this opinion.

Part of this included not filing a timely objection to the injunction, which in most cases would mean that this issue wouldn't be reviewed. However, Posner notes that given the seriousness of prior restraint and the First Amendment, it's still appropriate to explore this issue, especially since the public could be harmed:

Fuller and Hartman missed the deadline for responding to McCarthy’s motion for a permanent injunction, however, and ordinarily such a miss would have justified the judge’s rejecting any objection to the injunction as untimely. But the injunction in this case had the potential to harm nonparties to the litigation because enjoining speech harms listeners as well as speakers.

Posner's main issue with the injunction is just how incredibly broad it is, and the fact that the jury never determined if each specific statement was defamatory. He stays away from the larger question of whether or not defamation can ever be enjoined, by noting that the broad nature of this injunction is reason enough to toss it:

But this is not a case in which we have to decide whether defamation can ever be enjoined because, even if it can be, the injunction issued by the district judge cannot be sustained. An injunction against defamatory statements, if permissible at all, must not through careless drafting forbid statements not yet determined to be defamatory, for by doing so it could restrict lawful expression. The injunction that the district judge issued in this case was of that character, owing to its inclusion of vague, open-ended provisions for which there is no support in the jury verdict or, so far as appears, in the district judge’s own evaluation of the evidence. We have no jury findings as to which statements were defamatory, and the plaintiffs didn't even ask the judge to address that absence, so he didn’t. As illustrative of the injunction’s resulting excessive breadth, notice that it orders Hartman to take down his website, which would prevent him from posting any nondefamatory messages on his blog; it would thus enjoin lawful speech.

As Posner further notes:

An injunction against speech harms not just the speakers but also the listeners (in this case the viewers and readers). “[T]he First Amendment goes beyond protection of the press and the self-expression of individuals to prohibit government from limiting the stock of information from which members of the public may draw.” ... The injunction in this case is so broad and vague that it threatens to silence Fuller and Hartman completely.

Unfortunately, Posner does not just toss out the injunction completely, but rather sends it back to the lower court to try again, meaning that the judge may get another chance to try an injunction.

There's a good concurring opinion from Judge Diane Sykes, who agrees with tossing out the injunction, but disagrees with sending it back to the lower court, making an even stronger argument in saying that injunctions are an inappropriate remedy for defamation, citing numerous cases that make this argument:

More fundamentally, the question whether an injunction is permissible at all in this context is a sensitive and difficult matter of First Amendment law. A court order permanently enjoining future speech is a prior restraint and as such is presumptively unconstitutional. Any prior restraint comes to us “bearing a heavy presumption against its constitutional validity,” Bantam Books, Inc. v. Sullivan, 372 U.S. 58, 70 (1963), and “permanent injunctions—i.e., court orders that actually forbid speech activities—are classic examples of prior restraints” because they impose a “true restraint on future speech,” Alexander v. United States, 509 U.S. 544, 550 (1993). As the Supreme Court explained in its seminal case condemning prior restraints, an injunction against future speech—making any publication of the suppressed speech punishable as contempt—is “the essence of censorship.” Near v. Minnesota ex rel. Olson, 283 U.S. 697, 713 (1931).

Consistent with this bedrock free-speech principle, the traditional rule in defamation law is that “equity does not enjoin a libel or slander[;] … the only remedy for defamation is an action for damages.” e360 Insight v. The Spamhaus Project, 500 F.3d 594, 606 (7th Cir. 2007) (quotation marks omitted); see also Metro. Opera Ass’n, Inc. v. Local 100, Hotel Emps. & Rest. Emps. Int’l Union, 239 F.3d 172, 177 (2d Cir. 2001); Kramer v. Thomp-son, 947 F.2d 666, 677 (3d Cir. 1991); Comm. for Creative Non-Violence v. Pierce, 814 F.2d 663, 672 (D.C. Cir. 1987). This rule “has enjoyed nearly two centuries of widespread acceptance at common law.” Kramer, 947 F.2d at 677; see also Erwin Chemerinsky, Injunctions in Defamation Cases, 57 SYRACUSE L. REV. 157, 167–68 (2007); Michael I. Myerson, The Neglected His-tory of the Prior Restraint Doctrine: Rediscovering the Link Be-tween the First Amendment and the Separation of Powers, 34 IND. L. REV. 295, 308–22 (2001).

The Supreme Court has not yet directly addressed whether injunctive relief is a constitutionally permissible remedy for defamation, but the general equitable rule accords with the Court’s prior-restraint jurisprudence dating back to Near, which invalidated a Minnesota statute that permitted the issuance of temporary and permanent injunctions against persons and organizations engaged in the publication of defamatory newspapers, magazines, or other periodicals. 283 U.S. at 702, 723; see id. at 712 (“[S]uppression is accomplished by enjoining publication, and that restraint is the object and effect of the statute.”).

While Judge Sykes notes that some courts have allowed very narrowly tailored injunctions for the specific repetition of statements, she questions the wisdom of those rulings, stating "I'm not sure I agree with this modern trend" and then notes that the key cases where this has occurred have very distinct facts associated with them that "make it difficult to map their holdings onto defamation law." And, she notes, the key cases that are often cited aren't really defamation cases at all. And thus injunctions in defamation cases are tricky to accept:

Defamation by its nature is highly contextual. A statement that is defamatory in one circumstance, time, or place might not be defamatory in another circumstance, time, or place. A permanent injunction as a remedy for defamation does not account for constantly changing contextual factors that affect whether the speech is punishable or protected. If factual circumstances change in a way that affects the defamation calculus, the person enjoined must risk contempt or seek the court’s permission to speak. As the Court said emphatically in Near, “[t]his is the essence of censorship.”

And thus, she feels that sending the case back down only opens up another opportunity for unconstitutional prior restraint -- and, tragically, gives off the belief that this is okay:

By offering the district court an opportunity to craft a new injunction, my colleagues imply that such a remedy is constitutionally permissible—indeed appropriate in cases of judgment-proof defamers who might not be deterred by a damages award.... I cannot join this part of the court’s opinion. At the very least, it wrongly implies that a core liberty secured by the First Amendment—the right to be free from prior restraints on speech—does not protect people who lack the means to pay a judgment.

It's too bad this wasn't the actual opinion, but it's still better than nothing. Overall it's a good ruling, but it would be nice to have it confirmed once and for all that injunctions against future speech are, indeed, prior restraint.

Filed Under: 7th circuit, defamation, free speech, injunctions, prior restraint, richard posner

Techdirt Reading List: The Little Book Of Plagiarism

from the plagiarize-this dept

We're back again with another in our weekly reading list posts of books we think our community will find interesting and thought provoking. Once again, buying the book via the Amazon links in this story also helps support Techdirt. Earlier this week, we wrote about an important (and useful) First Amendment ruling by 7th Circuit appeals court judge Richard Posner. Posner is one of the most well known judges around today, in part because of his prolific writing on many different subjects -- not all of which are directly about the law (though many are). One of his books that I quite enjoy is the short book he published back in 2007 called The Little Book of Plagiarism. It's a quick read at only 128 pages, but a worthwhile look into the history of plagiarism, and whether or not it's that big of a deal.

Plagiarism is one of those interesting things where people have wildly different reactions to it -- with some insisting it must be illegal (it's generally not, as there's no law against "plagiarism," though it may violate copyright law in some cases). However, some creative folks have finally begun to recognize that plagiarism can actually be a key element of being creative. Writers Malcolm Gladwell and Jonathan Lethem both wrote long articles more or less defending plagiarism -- with Lethem's article entirely plagiarized from other sources.

That's not to say that all plagiarism is excusable. Passing off another's work as your own is quite reasonably frowned upon in most instances, but what all of these -- including Posner's book -- suggest, is that it's the kind of infraction that doesn't need a legal response, but rather social shaming is actually quite effective at dealing with plagiarists and undermining their own credibility. Posner's book is not a defense of plagiarism by any means. It notes how unethical it can be and the problems associated with plagiarism, but does a nice job putting it into perspective, and noting that the context matters very much. And while there are times when it is clearly not acceptable to plagiarize, there are others where it's clearly a reasonable creative endeavor.

Filed Under: plagiarism, reading list, richard posner, techdirt reading list

Appeals Court Issues Fantastic 1st Amendment Ruling Against Censorious Sheriff Thomas Dart In His Crusade Against The Internet

from the go-away dept

We've written about Cook County Sheriff Thomas Dart and his desire to censor the internet for a few years now. Back in 2009, he sued Craigslist because he claimed it was "the single largest source of prostitution in the nation." As we noted at the time, Craigslist was just a platform, and suing it made no sense at all -- especially given that the company was more than willing to cooperate closely with law enforcement and help them track down people who were breaking the law online. In other words, whereas a sheriff who was actually interested in stopping law breaking might embrace the site and work with it to track down law breakers, Dart chose to sue the toolmaker. That lawsuit failed miserably, but Sheriff Dart never gave up his quixotic quest to blame internet companies for prostitution.

Over the past few years, Backpage.com has taken over the boogeyman reputation previously held by Craigslist when it comes to online prostitution. Back in July of this year, Dart proudly announced that he had scared Visa and Mastercard out of working with Backpage after he sent them a misleading letter effectively threatening them if they did not stop working with Backpage. Backpage quickly sued Dart and within weeks received a temporary restraining order, with the court wasting no time claiming that Dart's actions in getting Visa and Mastercard to stop doing business with Backpage was unconstitutional prior restraint. However, the court later appeared to change its mind and refused to issue an injunction, saying that while Dart's letter could be construed as a threat, it wasn't censorship since he had no legal authority over the payment companies.

Backpage quickly appealed to the Seventh Circuit appeals court -- which has now absolutely trashed Dart in a decision written by Judge Richard Posner. The entire ruling is well worth reading, but here are a few excerpts. Posner does not find the lower court's reasoning convincing at all, quoting Okwedy v. Molinari to explain why:

“The fact that a public-official defendant lacks direct regulatory or decisionmaking authority over a plaintiff, or a third party that is publishing or otherwise disseminating the plaintiff’s message, is not necessarily dispositive … . What matters is the distinction between attempts to convince and attempts to coerce. A public-official defendant who threatens to employ coercive state power to stifle protected speech violates a plaintiff’s First Amendment rights, regardless of whether the threatened punishment comes in the form of the use (or, misuse) of the defendant’s direct regulatory or decisionmaking authority over the plaintiff, or in some less-direct form.”

Posner is well aware of Dart's previous failed attempt to sue Craigslist and notes the obvious intention of the letter to payment companies:

The suit against Craigslist having failed, the sheriff decided to proceed against Backpage not by litigation but instead by suffocation, depriving the company of ad revenues by scaring off its payments-service providers. The analogy is to killing a person by cutting off his oxygen supply rather than by shooting him. Still, if all the sheriff were doing to crush Backpage was done in his capacity as a private citizen rather than as a government official (and a powerful government official at that), he would be within his rights. But he is using the power of his office to threaten legal sanctions against the credit-card companies for facilitating future speech, and by doing so he is violating the First Amendment unless there is no constitutionally protected speech in the ads on Backpage’s website—and no one is claiming that. The First Amendment forbids a public official to attempt to suppress the protected speech of private persons by threatening that legal sanctions will at his urging be imposed unless there is compliance with his demands....

Central to Backpage’s case is a letter of June 29 of this year that Sheriff Dart sent both to MasterCard’s CEO and Board of Directors and to the corresponding personnel of Visa. The letter is on stationery captioned “Office of the Sheriff,” and begins: “As the Sheriff of Cook County, a father and a caring citizen, I write to request that your institution immediately cease and desist from allowing your credit cards to be used to place ads on websites like Backpage. com.” Notice that he is sheriff first, father and citizen second; notice his use of the legal term “cease and desist”; notice that he calls MasterCard “your institution,” implying that the same letter is going to other “institutions”—namely other credit card companies—in other words that he is organizing a boycott. And notice that he doesn’t demand that “your institution” refuse to allow “your credit cards” to be used to pay just for ads on Backpage’s website that promote illegal products or services—he demands that “your institution” cease and desist from placing any ads “on websites like Backpage.com” (and a fortiori on Backpage’s own website) even though “adult” ads are only one of eleven types of classified ad published on the website. Visa and MasterCard got the message and cut all their ties to Backpage.

The letter goes on to state that “it has become increasingly indefensible for any corporation to continue to willfully play a central role in an industry that reaps its cash from the victimization of women and girls across the world.” The implication, given whom the letter is addressed to, is that credit card companies, such as MasterCard and Visa, “willfully play a central role” in a criminal activity (emphases added)—so they had better stop! Indeed, the letter goes on to say, those companies are “key” to the “growth” of sex trafficking in the United States. (Actually, as explained in an amicus curiae brief filed by the Cato Institute, Reason Foundation, and DKT Liberty Project, citing voluminous governmental and academic studies, there are no reliable statistics on which Sheriff Dart could base a judgment that sex trafficking has been increasing in the United States.) He is intimating that two of the world’s largest credit card companies may be criminal accomplices.

“Financial institutions,” the letter continues, “have the legal duty to file ‘Suspicious Activity Reports’ to authorities in cases of human trafficking and sexual exploitation of minors.” The letter cites the federal money-laundering statute, 18 U.S.C. § 1956, thereby intimating that the credit card companies could be prosecuted for processing payments made by purchasers of the ads on Backpage that promote unlawful sexual activity, such as prostitution. And “make no mistake,” the letter thunders: “Your [credit] cards have and will continue to be used to buy ads that sell children for sex on sites like Backpage.com. … The use of credit cards in this violent industry implies an undeserved credibility and sense of normalcy to such illicit transactions and only serves to increase demand.” And then, Posner notes, Dart makes his threat pretty damn clear:

And here’s the kicker: “Within the next week, please provide me with contact information for an individual within your organization that I can work with [harass, pester] on this issue.” The “I” is Sheriff Dart, not private citizen Dart— the letter was signed by “Thomas Dart, Cook County Sheriff.” And the letter was not merely an expression of Sheriff Dart’s opinion. It was designed to compel the credit card companies to act by inserting Dart into the discussion; he’ll be chatting them up. Further insight into the purpose and likely effect of such a letter is provided by a strategy memo written by a member of the sheriff’s staff in advance of the letter. The memo suggested approaching the credit card companies (whether by phone, mail, email, or a visit in person) with threats in the form of “reminders” of “their own potential liability for allowing suspected illegal transactions to continue to take place” and their potential susceptibility to “money laundering prosecutions … and/or hefty fines.” Allusion to that “susceptibility” was the culminating and most ominous threat in the letter.

Posner further notes that if an ordinary citizen had sent a letter with similar requests, and without the "demands," the payment companies likely would have been "discarded or filed away." Posner gets down to the truth of the matter:

Visa and MasterCard were victims of government coercion aimed at shutting up or shutting down Backpage’s adult section (more likely aimed at bankrupting Backpage--lest the ads that the sheriff doesn’t like simply migrate to other sections of the website), when it is unclear that Backpage is engaged in illegal activity, and if it is not then the credit card companies cannot be accomplices and should not be threatened as accomplices by the sheriff and his staff.

Posner points out that Section 230 protects Backpage from liability and the hints that Mastercard and Visa might be liable for federal crimes (which are exempt from Section 230) are ludicrous. He also knocks Dart for suggesting that all ads in the adult section of Backpage are illegal themselves, noting that plenty of it is perfectly legal, including fetishism and phone sex.

And thus:

As a citizen or father, or in any other private capacity, Sheriff Dart can denounce Backpage to his heart’s content. He is in good company; many people are disturbed or revolted by the kind of sex ads found on Backpage’s website. And even in his official capacity the sheriff can express his distaste for Backpage and its look-alikes; that is, he can exercise what is called “[freedom of] government speech.”... A government entity, including therefore the Cook County Sheriff’s Office, is entitled to say what it wants to say—but only within limits. It is not permitted to employ threats to squelch the free speech of private citizens. “[A] government’s ability to express itself is [not] without restriction. … [T]he Free Speech Clause itself may constrain the government’s speech.”

Posner clearly notes the potential slippery slope:

For where would such official bullying end, were it permitted to begin? Some public officials doubtless disapprove of bars, or pets and therefore pet supplies, or yard sales, or lawyers, or “plug the band” (a listing of music performances that includes such dubious offerings as “SUPERCELL Rocks Halloween at The Matchbox Bar & Grill”), or men dating men or women dating women—but ads for all these things can be found in non-adult sections of Backpage and it would be a clear abuse of power for public officials to try to eliminate them not by expressing an opinion but by threatening credit card companies or other suppliers of payment services utilized by customers of Backpage, or other third parties, with legal or other coercive governmental action.

Finally, Judge Posner rejects the lower court's claims that issuing an injunction would hurt Dart's own First Amendment rights:

The judge was further mistaken when he said that “the Sheriff’s own First Amendment rights are at stake in this case and the Court must therefore also consider the risk that erroneously entering an injunction would chill Dart’s own right to speak out on issues of public concern. Sheriff Dart has a First Amendment right to publicly criticize the credit card companies for any connection to illegal activity, as long as he stops short of threats” (emphasis added). But the judge himself, in the passages we quoted earlier, had been emphatic that Dart had not stopped short of threats. Those threats were not protected by the First Amendment; they were violations of the First Amendment.

This ruling has lots of great quotes that may be quite useful elsewhere. Over the years we've seen many politicians make similar threats -- often to similar results. Remember when former Senator Joe Lieberman pressured Amazon to stop hosting Wikileaks? And similar pressure led Mastercard and Visa to stop accepting donations for Wikileaks as well -- apparently in a deal with US diplomats. Lieberman (that guy again?!?) also famously put pressure on Google to censor websites that he deemed as promoting "terrorism" and similarly pressured Twitter to silence the feeds of people he didn't like. He also threatened the NY Times for publishing Wikileaks' documents.

And, of course, in just the last few weeks, we've seen increasing pressure from government entities potentially demanding censorship online of "bad" content in the wake of the Paris attacks. Hopefully, this ruling by Posner will provide a useful tool to combat such censorship. While it technically only applies in the 7th Circuit, Posner's rulings are influential in other circuits as well. Of course, there's a chance that Sheriff Dart will decide to waste more taxpayer money and seek for an en banc rehearing in the 7th Circuit or even ask the Supreme Court to hear the case as well. If so, this could become a key free speech case concerning government coercion to silence online speech.

Filed Under: 7th circuit, adult ads, censorship, first amendment, free speech, richard posner, thomas dart, threats
Companies: backpage, backpage.com, craigslist, mastercard, visa

Judge Posner Says NSA Should Be Able To Get Everything & That Privacy Is Overrated

from the and-he's-wrong dept

Judge Richard Posner is probably one of the most well-known and quoted appellate judges around. He's an excellent writer as well, and I enjoy many of his books and his rulings, though when he gets things wrong, he seems to get them so very, very wrong. When he's on, he's great. For example, his recent attack on copyright trolling and defending the public domain was great. He's also been good on patents. But... on surveillance he seems all too eager to side with the government.

Given that, there was little surprise that at a recent conference on cybercrime, Posner unloaded with some of his more ridiculous beliefs, essentially saying that the NSA should be able to spy on whoever they want because "national security" is more important than privacy (or the 4th Amendment, apparently):

“I think privacy is actually overvalued,” Judge Richard Posner, of the U.S. Court of Appeals for the Seventh Circuit, said during a conference about privacy and cybercrime in Washington, D.C., Thursday.

“Much of what passes for the name of privacy is really just trying to conceal the disreputable parts of your conduct,” Posner added. “Privacy is mainly about trying to improve your social and business opportunities by concealing the sorts of bad activities that would cause other people not to want to deal with you.”

Ah, the old "if you've done nothing wrong, you've got nothing to hide" trope. If that's true, then it does make you wonder what Posner himself is hiding. As Dave Maass pointed out, Judge Posner has redacted the name of his trust on his financial disclosure form. Posner doubled down on this by claiming that if someone looked at his mobile phone, they'd just find pictures of his cat and nothing too important:

“If someone drained my cell phone, they would find a picture of my cat, some phone numbers, some email addresses, some email text,” he said. “What’s the big deal?

“Other people must have really exciting stuff,” Posner added. “Do they narrate their adulteries, or something like that?”

No, they may not narrate their adulteries, but they may actually give away lots of information that, say, could be used to suggest adultery, which might then be used to blackmail someone. Or to push them to commit suicide.

Or to just embarrass them. To take an example that Judge Posner might actually relate to, his fellow appellate court judge (and about equal in "famous judge" stature) Alex Kozinski. Back in 2007, a disgruntled lawyer figured out a way to reach a personal web server that Judge Kozinski used to store random "funny things" he found online, including some "racy" images. The press picked up on the story and went crazy about this judge who apparently was keeping "obscene" images, including one that the press repeatedly claimed showed "bestiality." This was all over the press, including the LA Times. If you want to see the "bestiality" video, you can view it here on YouTube.

The point being, Kozinski wasn't really doing anything "wrong" (other than not properly securing his own personal web server). And yet someone (a lawyer unhappy with Kozinski) was able to take what he found on that web server, which was basically some jokey videos and pictures, and turn it into a big (and misleading) deal in the mainstream media, leading to a panel of federal judges having to do a full investigation. Yes, eventually they cleared Kozinski, but the point remains: if someone wants to make your life hell, and can get access to stuff you wanted kept "private," they can often do so. Even if you're a famous, big shot, appellate court judge.

Even worse, as Glenn Greenwald reminds us, Judge Posner is a complete and total hypocrite on this issue -- in a 2011 case concerning whether or not citizens have a First Amendment right to film the police, Posner was suddenly worried about the police's right to privacy:

JUDGE POSNER: Once all this stuff can be recorded, there’s going to be a lot more of this snooping around by reporters and bloggers.

ACLU attorney Richard O’Brien: Is that a bad thing, your honor?

JUDGE POSNER: Yes, it is a bad thing. There is such a thing as privacy.

Apparently it only applies to those in power, though. If there's any better demonstration of the privilege of the rich and powerful, it's difficult to think of an example that beats Judge Posner poo-pooing the idea that the public should be concerned about the NSA and its surveillance powers.

Filed Under: 4th amendment, alex kozinski, nsa, privacy, richard posner, surveillance

Appeals Court Uses Bogus Sherlock Holmes Case To Slam Copyright Trolling For License Fees, Suggests Antitrust Violations

from the could-be-worth-paying-attention-to-this-one dept

Back in June, we wrote about how the 7th Circuit appeals court, in a ruling written by Richard Posner, totally rejected the Sir Arthur Conan Doyle Estate's ongoing attempt to claim copyright over the character of Sherlock Holmes, even though everyone knows that all but 10 Holmes stories are in the public domain. The Estate asked the Supreme Court to put a stay on the ruling, which was quickly rejected, though it's still expected that the Estate will ask the Supreme Court to review the entire case (which the court seems unlikely to take).

In the meantime, Posner has again ruled on the case, concerning the plaintiff (remember, it was a declaratory judgment suit against the Estate), Leslie Klinger, and his request to have his attorneys' fees paid. The court grants the request but also uses the opportunity to trash the filing of bogus lawsuits around intellectual property with the hope of getting someone to pay up a small fee. In short, he bashes copyright and patent trolling pretty broadly in the ruling. Posner has been fairly vocal about his concerns with the patent system and patent trolling, but he clearly sees how it applies to copyright trolling as well. This ruling might be somewhat useful to those dealing with copyright trolling case (especially in the 7th circuit...).

Posner highlights a few recent papers about copyright trolling, and how troubling it is:

Copyright holders, the authors explain, have larger potential upsides and smaller downside risks to filing suit, since if they win they obtain damages but if they lose they don’t have to pay damages (although a loss, especially if recorded in a published opinion as in this case, may make it more difficult for them to play their extortionate game in future cases). So copiers or alleged copiers may be “induced into licensing [that is, paying a fee for a license to reproduce] the underlying work, even if this license is unnecessary or conveys non-existent rights."

He uses the example of the song Happy Birthday, which is currently involved in litigation, in a case that we've argued has some similarities to the Sherlock Holmes case. It's good to see Posner see the parallels. From there, he notes why it's so important to award attorneys' fees in these cases, otherwise trollish behavior will continue:

Unless Klinger is awarded his attorneys’ fees, he will have lost money—to be precise, $25,679.93 ($30,679.93 – $5,000)—in winning an appeal in which the defendant’s only defense bordered on the frivolous: a Pyrrhic victory if ever there was one.

And then, the bigger smackdown occurs:

The Doyle estate’s business strategy is plain: charge a modest license fee for which there is no legal basis, in the hope that the “rational” writer or publisher asked for the fee will pay it rather than incur a greater cost, in legal expenses, in challenging the legality of the demand. The strategy had worked with Random House; Pegasus was ready to knuckle under; only Klinger (so far as we know) resisted. In effect he was a private attorney general, combating a disreputable business practice—a form of extortion—and he is seeking by the present motion not to obtain a reward but merely to avoid a loss. He has performed a public service—and with substantial risk to himself, for had he lost he would have been out of pocket for the $69,803.37 in fees and costs incurred at the trial and appellate levels ($30,679.93 + $39,123.44). The willingness of someone in Klinger’s position to sue rather than pay Doyle’s estate a modest license fee is important because it injects risk into the estate’s business model. As a result of losing the suit, the estate has lost its claim to own copyrights in characters in the Sherlock Holmes stories published by Arthur Conan Doyle before 1923. For exposing the estate’s unlawful business strategy, Klinger deserves a reward but asks only to break even.

This is why fee-shifting and attorneys' fees are so damn important in both patent and copyright trolling cases. It's too bad that this year's patent reform bill was killed over this, just because some short-sighted trial lawyers hate fee shifting. Posner rightly explains just why it's important. Without it, it allows this extortion (and thank you to Posner for directly calling it that) to continue over and over again, because the cost of fighting back is just too high.

Posner also makes one other point that doesn't directly impact other trolling cases necessarily, but is interesting. He suggests that the Conan Doyle Estate may be playing with antitrust fire for abusing a "monopoly" it has no legitimate right over:

We note finally that the estate was playing with fire in asking Amazon and other booksellers to cooperate with it in enforcing its nonexistent copyright claims against Klinger. For it was enlisting those sellers in a boycott of a competitor of the estate, and boycotts of competitors violate the antitrust laws. The usual boycott is of a purchaser by his suppliers, induced by a competitor of the purchaser in order to eliminate competition from that purchaser.... This case is different, in its facts but not in economic substance or legal relevance, because the boycotters enlisted by the Doyle estate were buyers from the victim, rather than sellers to it. But functionally they were suppliers—suppliers of essential distribution services to Klinger.

In the end, the court tells the Estate to pay up $30,679.93 in legal fees to Klinger, which just covers the cost in the appeals court. Klinger is still seeking more for the cost of the district court ruling as well.

Filed Under: attorneys fees, copyright, fee shifting, leslie klinger, richard posner, sherlock holmes, trolling
Companies: conan doyle estate

How Dianne Feinstein Misled Congress About How 'Useful' NSA Spying Authorities Were In Stopping Plots

from the say-what-now? dept

We've been following the case of Adel Daoud for a little while now. He's one of the many people arrested for "terrorism" in one of the FBI's dozens of "home grown plots" in which they create their very own terrorist plot, dupe someone into "joining" and then arrest (and then relish in the headlines about stopping a terrorist "plot" that was never a real plot in the first place). In Daoud's case, the made up "plot" involved blowing up a Chicago bar. But the Daoud case got a lot more attention, because in the big "debate" over the renewal of the FISA Amendments Act (FAA) in late 2012, Senator Dianne Feinstein directly described the Daoud "plot" as an example of why the FAA and Section 702 were necessary. Here's what she said:

There is a view by some that this country no longer needs to fear attack. I don't share that view, and I have asked the intelligence committee staff to compile arrests that have been made in the last 4 years in America on terrorist plots that have been stopped. There are 100 arrests that have been made between 2009 and 2012. There have been 16 individuals arrested just this year alone. Let me quickly review some of these plots. Some of these may arrests come about as a result of this program. Again, if Members want to see the specific cases where FISA Amendments Act authorities were used, they can go and look at the classified background of these cases.

First, in November, 1 month ago, two arrests for conspiracy to provide material support to terrorists and use a weapon of mass destruction. That was Raees Alam Qazi and Sheheryar Alam Qazi. They were arrested by the FBI in Fort Lauderdale, FL. The next case is another conspiracy to provide material support. Arrested were Ralph Deleon, Miguel Alejandro Santana Vidriales and Arifeen David Gojali. These three men were planning to travel to Afghanistan to attend terrorist training and commit violent jihad; third, was a plot to bomb the New York Federal Reserve Bank; fourth, a plot to bomb a downtown Chicago bar; fifth, a conspiracy to provide material support to the Islamic Jihad Union; sixth, a plot to carry out a suicide bomb attack against the U.S. Capitol in February of 2012; seventh, a plot to bomb locations in Tampa, FL; eighth, a plot to bomb New York City targets and troops returning from combat overseas; ninth, a plot to assassinate the Saudi Ambassador to the United States; and it goes on and on and on.

So I believe the FISA Amendments Act is important and these cases show the program has worked

That caught the attention of a bunch of folks, because nowhere in Daoud's case had the government suggested it had obtained or used evidence via the FAA -- leading to serious questions about whether the government had been withholding evidence or if that evidence had been unconstitutionally obtained. Unfortunately, Daoud's attempt to get access to whatever evidence has been collected on him has been shut down by the courts. Judge Richard Posner issued a "supplemental classified opinion" to go with the original opinion we wrote about, but parts of that opinion have been released as well. Very large portions of it, however, remain totally redacted. What remains more or less says that the government did everything in a proper way and there were no constitutional problems. It also implies there was a ton of evidence pointing to Daoud's activities.

However, what caught my attention in the unredacted snippets of the ruling is Judge Posner basically claiming that Feinstein's claims about Daoud's case involving the FAA didn't actually mean the FAA was used:

The defendant's challenge relies primarily on a December 27, 2012 Senate floor speech by Senator Feinstein, who said: "There have been 16 individuals arrest[ed] just this year alone. Let me quickly just review what these plots were. And some of them come right from this program [meaning the FAA]. The counter-terrorism come[s] -- and the information came right from this program. And again, if members want to see that, they can go and look in a classified manner.... Fourth, a plot to bomb a downtown Chicago bar...." (emphasis added) (visited July 11, 2014).

The referenced "plot" is obviously the defendant's, and because the Senator used the examples to support the reauthorization of the FAA, the defendant not unreasonably interpreted her remarks to mean that the FAA had been used in his case. But an equally reasonable interpretation of the Senator's remarks is that she was merely saying that the defendant was one of the 16 individuals who had been arrested in 2012, same of whom had been arrested on the basis of such information. The Senate's Legal Counsel confirmed in a letter to defense counsel that "Senator Feinstein did not state, and did not mean to state, that FAA surveillance was used in any or all of the nine cases she enumerated, including [the defendant's] case, in which terrorist plots had been stopped.... Rather, her purpose in reviewing several recent terrorism arrests was to refute the "view by some that this country no longer needs to fear attack.'"

Reading the original quote, Posner is correct that before Feinstein lists the examples, she adds the caveat that "some" of them "may" have used the FAA. But she also concludes it by insisting that these prove that the FAA worked. If anything, this ruling highlights just what a disingenuous and deceiving speech Feinstein gave during the debate over the FAA. Any reasonable person listening to that speech would hear that and believe that this program (the FAA and its 702 surveillance program) was the key to breaking up all of those "plots." After all, the entire debate was about renewing the FAA.

And yet, now it's quite clear that Feinstein was just listing out any and all "plots" (and even that is not really accurate since so many, including Daoud, were plots created by the FBI itself, meaning they never needed the FAA anyway), and falsely implying the FAA was necessary to break them up. Feinstein's scare-mongering over what would happen without a renewal of the FAA was a big part of why it passed, and as this ruling more or less confirms, she completely mislead others in Congress and the American public about it.

Filed Under: adel daoud, dianne feinstein, fisa amendments act, fud, nsa, richard posner, section 702, surveillance, terrorism

Court Rejects Request That Secret NSA Evidence Used Against Terrorism Suspect Be Shared With Suspect's Lawyers

from the secret-courts dept

We've been following the case of Adel Daoud, an American citizen charged with terrorism. He's one of the many, many folks that was arrested following one of the FBI's infamous home grown plots (i.e. he was never actually involved in any terrorism, as all of his "co-conspirators" were actually FBI agents or informants, and there was never any actual threat or chance that he'd pull off an actual terrorist attack). Back during the (pre-Snowden) debates on renewing Section 702 of the FISA Amendments Act, Senator Dianne Feinstein used Daoud's case as a specific example of when the program had been useful in stopping terrorism.

That caught the attention of Daoud's lawyers, who noted that this was the first they'd heard of this, and it seemed pretty clear that the government had withheld the evidence that was used to bring Daoud to trial in the first place (which is, as you know, not really allowed). After asking for the evidence, the district court first said no, but then ordered that some of the documents being filed actually be shared with Daoud's attorneys (who have the necessary security clearances). The DOJ, of course, flipped out at this idea that the lawyers for someone they're trying to lock up forever should actually be able to see the evidence used against him and how it was collected.

This resulted in an appeals court hearing, which bizarrely had to happen twice after the FBI so scared court staff that they failed to record the public portion of the oral hearings. The hearings were also odd in that, at one point, everybody but DOJ folks and the judges were kicked out of the courtroom, raising serious questions about basic due process.

Unfortunately, Judge Richard Posner's ruling (right after coming out with his good ruling on the public domain) has found that the evidence does not need to be shared with Daoud's lawyers. He slams the district court judge for overreacting and over-valuing the concept of the "adversarial process" in the court room. Seriously.

The judge appears to have believed that adversary procedure is always essential to resolve contested issues of fact. That is an incomplete description of the American judicial system in general and the federal judicial system in particular. There are ex parte or in camera hearings in the federal courts as well as hearings that are neither or both. And there are federal judicial proceedings that though entirely public are nonadversarial, either partly or entirely.

Posner basically says that the district court judge herself should have looked over the materials first, to determine if it makes sense to pass them on, rather than defaulting to saying that they should be shared with the lawyers. As such, he basically reveals that the "secret hearing" that was held was to go over the material with the appeals court judges, and they're satisfied that nothing needs to be revealed to Daoud's attorneys.

...our study of the materials convinces us that the investigation did not violate FISA. We shall issue a classified opinion explaining (as we are forbidden to do in a public document) these conclusions, and why therefore a remand to the district court is neither necessary nor appropriate.

Posner also, not surprisingly, rejects the objection by Daoud's lawyers to that secret hearing, noting that it was necessary to determine if the DOJ lawyers were being fully honeset with the court:

Their objecting to the classified hearing was ironic. The purpose of the hearing was to explore, by questioning the government’s lawyer on the basis of the classified materials, the need for defense access to those materials (which the judges and their cleared staffs had read). In effect this was cross-examination of the government, and could only help the defendant.

Defense counsel’s written motion cites no authority for forbidding classified hearings, including classified oral arguments in courts of appeals, when classified materials are to be discussed. We don’t think there’s any authority it could cite.

And, voila, the secret law and secret courts and secret evidence continue unabated...

For a very good analysis of this ruling, I recommend Steve Vladeck's take, in which he notes that Posner seems to (somewhat bizarrely) confuse sharing details with Daoud's lawyers in secret, with "openness" to the public. As Vladeck notes, the district court judge recognized that not everything had to happen publicly, but was (reasonably) concerned that just having a judge look over the secret FISA court ruling would not be sufficient, since the judge would not have the same view as the defense attorneys. Posner seems to ignore or misinterpret all of that.

The problem, from Judge Coleman’s perspective, is that it may not always be possible for a district judge to determine whether disclosure is necessary (as opposed to whether it “may be necessary”) without the benefit of adversarial presentation. That is to say, § 1806(f) conditions the disclosure of classified FISA materials to a defendant (or, at least, his security-cleared counsel) upon a finding by the district judge that may, in some cases, only be possible with defense counsel’s participation. This is why, in her order mandating disclosure, Judge Coleman devoted so much of her energy to the importance of adversarial proceedings, especially in criminal cases—not because all proceedings in U.S. courts are adversarial (they’re not), but because, in this context specifically, adverse-ness makes it easier for a judge to have faith that she is comporting with her statutory and constitutional obligations.

But rather than accept—or at least sympathize with—Judge Coleman’s efforts to square a circle, Judge Posner derided them by suggesting that the government has a right to keep these materials secret, repeatedly criticizing calls (one is left to wonder from where) for “openness.” “Not only is federal judicial procedure not always adversarial,” Posner wrote; “it is not always fully public.” This is true, but entirely beside the point; Judge Coleman wasn’t seeking to open the proceedings; she was seeking to provide security-cleared defense counsel (who, just like everyone else, are subject to the Espionage Act) with access to classified information.

Filed Under: adel daoud, doj, evidence, fbi, fisa, franks hearing, richard posner, secrecy, terrorism

Once More, With Feeling: Sherlock Holmes Is In The Public Domain

from the elementary dept

Over the last few years, we've been covering the declaratory judgment lawsuit trying to establish that Sherlock Holmes is in the public domain. As explained, nearly all of the stories about Holmes were published prior to 1923, making them public domain in the US. However, there was one book with ten stories published after 1923, and those works are still covered by copyright, thanks to our nutty system of copyright extensions. Some Sherlock Holmes scholars/authors, Leslie Klinger and Laurie King, filed for declaratory judgment after the Sir Arthur Conan Doyle Estate threatened the publisher of their upcoming book (after successfully pressuring a previous publisher) that Sherlock Holmes is still covered by copyright and a license must be obtained. Klinger argued that he wasn't using anything from those works that were published post-1923.

While the Doyle Estate ignored the start of the case, after initially losing, it suddenly became interested arguing that the "character" of Holmes was not complete, and thus the new works somehow magically could extend backwards in time to keep the older versions out of copyright. Furthermore, it argued that in a world where Holmes is in the public domain, something horrible like others creating "multiple" versions of Holmes might happen (even though that's exactly what the public domain is supposed to enable). While there was some confusion, the judge didn't buy the Estate's argument, and found Holmes and his sidekick Dr. Watson to be in the public domain.

The Estate appealed, and got the unfortunate honor of having Judge Richard Posner handle the case, which he has done quite thoroughly, completely dismantling the Estate's arguments in affirming that Holmes and Watson belong to everyone, and not to the Estate. The key line:

We cannot find any basis in statute or case law for extending a copyright beyond its expiration. When a story falls into the public domain, story elements—including characters covered by the expired copyright—become fair game for follow-on authors...

Posner notes that while the ten stories published after 1923 (it's not fair to call them "new") are derivative works of the original, and the only thing protectable in those are the "original elements added" in those later stories. Everything done before that is public domain.

Posner has little time for the Estate's wacky theory of how much "harm" would come from people actually making use of a Sherlock Holmes in the public domain, by accurately recognizing that it is the public domain that often inspires tremendous new creativity.

The estate offers the hypothetical example of a mural that is first sketched and only later completed by being carefully painted. If the sketch is allowed to enter the public domain, there to be improved by creative copiers, the mural artist will have a diminished incentive to perfect his mural. True; but other artists will have a greater incentive to improve it, or to create other works inspired by it, because they won’t have to pay a license fee to do so provided that the copyright on the original work has expired.

Posner also destroys the rationale of the Doyle Estate in which they have a made up concept of "flat" and "round" characters, where "round" characters are continually added to through newer and newer works, and the characters are never fully complete because of all that adding. Posner notes that this whole thing has nothing to do with copyright law:

The estate defines “flat” characters oddly, as ones completely and finally described in the first works in which they appear. Flat characters thus don’t evolve. Round characters do; Holmes and Watson, the estate argues, were not fully rounded off until the last story written by Doyle. What this has to do with copyright law eludes us.

Posner further points out that, for all the talk that the Estate is worried about the harm of "new" versions of Holmes it doesn't like, in truth it seems clear that the Estate just wants to get paid. Finally, Posner notes that this appears to be an attempt to create a perpetual copyright, which violates the "limited times" aspect of the Constitution:

With the net effect on creativity of extending the copy-right protection of literary characters to the extraordinary lengths urged by the estate so uncertain, and no legal grounds suggested for extending copyright protection beyond the limits fixed by Congress, the estate’s appeal borders on the quixotic. The spectre of perpetual, or at least nearly perpetual, copyright (perpetual copyright would vio-late the copyright clause of the Constitution, Art. I, § 8, cl. 8, which authorizes copyright protection only for “limited Times”) looms, once one realizes that the Doyle estate is seeking 135 years (1887–2022) of copyright protection for the character of Sherlock Holmes as depicted in the first Sherlock Holmes story.

That seems like a rather useful line given the likelihood of a copyright term extension fight coming up in the next few years...

Filed Under: arthur conan doyle, copyright, laurie king, leslie klinger, public domain, richard posner, sherlock holmes
Companies: conan doyle estate, perseus books

Court Calls A Do Over In Terror Hearings After Failure To Record

from the are-they-allowed-to-change-arguments? dept

We covered how court staffers, totally spooked by FBI agents sweeping the court room for recording devices, failed to record the public portion of oral arguments in an important terrorism case (against Adel Daoud), meaning that there was no official recording or transcript of the hearing (part of which was also held in secret). But now, the court has called for a rare "do over" on the public portion of the hearing.

A federal appeals court in Chicago has rescheduled oral arguments in a terrorism case after courtroom staff failed to record a significant hearing.

The U.S. 7th Circuit Court of Appeals issued a notice on Friday saying it would rehear arguments June 11 in the case against Adel Daoud, who's accused of trying to set off a bomb near a Chicago bar in 2012.

So, um, what? The original was a dress rehearsal? Do they get to make different arguments, or are they expected to basically repeat the script they did a week earlier? Will it play out like an awkward re-enactment? And, most importantly, will Judge Posner, once again yell "Look! You answer my questions, not your questions!" at the lawyers?

Filed Under: 7th circuit, adel daoud, appeals court, do over, doj, fbi, recording, richard posner