Hey guys. Update on current happenings after the break.
First though, a quick history dip you can skip if you're hip.
The story thus far:
- I wrote a blog post about this one time I dumped an infamous developer/activist after discovering a general pattern of hypocrisy/co-opting of political movements for personal gain. My main concern that ███████████████████████████████ was hinted at for those in the know though otherwise left unstated, but that's not important right now.
- The internet exploded.
- Discussion was actively suppressed across multiple sites and communities, and a number of media outlets collectively decided it would be best to look the other way. The explosion continued exploding(?) for the next week, despite what seemed like a coordinated cross-community cross-outlet effort not to fuel the fire.
- After it became clear this wasn't going away, there was a marked switch in coverage of events from "block information" to "spread misinformation." Also at some point, ten articles in one day pronounced that gamers were dead. Gamers seemed to generally disagree with this prognosis.
- A leak from a journos group revealed there was in fact a coordinated cross outlet effort to bury the issue.
- Gamergate was born -- and covered by most outlets the same way Occupy was covered by FOX News. Or #BlackLivesMatter was covered by -- uuuhh, FOX News. Which is to say, the concerns that caused the explosion were minimized or swept under the rug, and media coverage focused solely on the existence of the explosion as a scandal in and of itself. People became increasingly worried that everything had turned into FOX News.
- Back in my neck of the woods, that dev I had the misfortune of dating went into damage control mode. Dev's basic PR strategy amounted to: spread counter-narrative and misinformation, discredit and silence the opposition, leverage official channels in any way that might increase public perception of legitimacy. In following her usual MO of "you can be most effective by being more ruthless than anyone expects," dev took out an infamously broken type of court order to serve as a makeshift gag-order. The "hearing" for this order lasted maybe 10 minutes. Judge did not allow me to present evidence in my defense. Judge refused to hear the First Amendment objections. Judge did not even give me an opportunity to speak. My attorney was upset enough by the whole thing that he took the initiative of compiling the record and docketing the appeal pro-bono.
- It is unclear whether dev was aware of the increasing concern among legal scholars for this sort of order to be used in violation of the First Amendment.
- The appeal application sat on a shelf at the lower court for a few months, presumably to ripen. In the meantime, dev was trying very hard to land me in jail for basically anything dev could make a case for. At one point, dev filed a complaint for my tweeting "#GamerGate owes me a drink." All claims from this ~5 month period refered to #GamerGate as a hate mob. No claims noted the variety of charitable causes (from anti-bullying to suicide-prevention to food drives) it has donated upwards of $90k to. Rude.
- Most of dev's violation claims did not make it past the clerk. Three did. A prosecutor was assigned to these violation claims.
- My attorney and I notified the prosecutor that we were appealing the underlying order. The prosecutor agreed to hold off on prosecuting until the appellate court had decided on whether or not the order should, under any legal interpretation, have been granted in the first place.
- Appeal application continued to ripen until, at some pint in April, it was finally docketed.
- I was all like "Guys, I'mma write the brief."
- You guys were all like "It's dangerous to go alone. Take this." And gave me a bunch of money to hire an appellate attorney.
- I hired an appellate attorney. Oh, and also someone told me to email law professor and superhero Eugene Volokh, who said he would help out and write an amicus brief for free(dom of speech).
- Dev heard tales of the appeal, and was not pleased. Dev attempted to take out a duplicate order out-of-state, presumably as a fallback in case I won the appeal in my state.
- Volokh referred me to an attorney who agreed to take on the case for that new order literally over the weekend and on a pay-what-you-can basis. That attorney did an excellent job, and I hope to pay him back in full some day [currently half way there]. Anyway, we won.
- This left dev with no fallback, and a risk of losing some narrative points if the appellate court ruled in my favor. This simply would not do.
- Dev hired Giant Legal Conglomerate Wilmer Hale, who assigned four(?) attorneys to dev's case.
- We filed for Direct Appellate Review hoping the state Supreme Court would fast-track the case into their purview based on the constitutional questions posed. We then filed our appellate brief with the appellate court.
This space intentionally left blank to reflect on the fact that we have gone from a 10 minute hearing about a blog post, to a case involving Eugene Volokh and Giant Legal Conglomerate Wilmer Hale.
21) Wilmer Hale told the MA Supreme Court "There's no need to get involved here. We're vacating the underlying order. It's cool."
22) Wilmer Hale vacated the underlying order, and filed a response brief with the Mass Appellate Court essentially arguing "Oh god pleeease look the other way on this. We've vacated the order, rule the case moot. Official scrutiny does not serve our client's
PR best interests."
23) The Supreme Court said "we'll let the appellate courts do their thing before we get involved."
24) We filed a reply brief with the appellate court to the effect "it's not moot because the order can still be reissued at any time, and only an opinion from this court could prevent that. And also there are still the existing violation claims pending." The appellate courts pondered.
So, last we left off, the Supreme Court said "go through the appellate court." Wilmer Hale argued that the case should be ruled moot because the underlying order was vacated. We argued that this doesn't offer sufficient protection in the future, nor does it resolve the matter of the pending violation claims.
Since then -- the violation claims have disappeared. The prosecutor was asked to drop them, and, as soon as the prosecutor agreed, Wilmer Hale filed a letter with the appellate court informing them that the violation charges had been dropped, so there was now almost no conceivable reason not to rule the case moot.
We might consider that, because the plaintiff really really wants the appeals court to rule the case moot, the plaintiff (or perhaps Wilmer Hale) may, in a roundabout way, be admitting that the First Amendment really does exist. Given the information available thus far, we might even charitably interpret the plaintiff's request that the underlying order and all pending charges be dropped as something resembling a begrudging mea culpa.
Unfortunately, this is not a Holiday Special. Plaintiff didn't simply drop the underlying charges, but also requested the prosecutor replace them with a different charge. Mass General Laws chapter 265 section 43a. Criminal Harassment. Which is precisely another one of those small handful of laws that has first amendment scholars concerned about the potential for misuse as a First Amendment loophole.
Dropping the pending charges and replacing them with this new one has a pernicious effect. Even though the new charge is based on the same underlying claims, it's technically a different legal issue altogether. Which means, even if the appellate court were to rule that order was invalid, that ruling would (arguably) offer much less relief toward this new charge (depending on the wording, anyway). And since the appellate court's ruling would offer less relief, Wilmer Hale can use that forced change in circumstance to make a stronger argument in favor of mootness with one hand, while actively restricting my speech with the other (my speech would necessarily be "chilled" as the proceedings for this replacement charge are underway). The only way to get the appellate court to also chime in on this replacement charge would be to lose the new charge, then file yet another appeal (which would take yet another year or two).
If that all sounds a bit grim, it's not! The Appellate Court has not only not ruled the case moot yet, but seems to have just signaled the opposite. They've just scheduled oral argument for some as of yet to be decided date between March 1st - 18th. They might hypothetically still rule the case moot after oral argument -- but the fact that they scheduled it all given the circumstances is quite encouraging.
So, this is it. As far as moments of truth and things which might be important go -- like it or not, March is probably gonna be one of them. From a somewhat depressing/comedic perspective, it's "important" enough to someone that they hired Giant Legal Conglomerate Wilmer Hale to prevent it from happening. More seriously, and more broadly, it is important enough that it could lead to real and lasting change in at least some small pocket of the universe.
Like, holy shit there is actually a chance that this sets legal precedent.
I mean like, if you're into that, or whatever.
No big deal.
If you wanna chip in -- know that the recent legal maneuvering leaves me with basically no clue what the odds are that we'll win -- but on my end at least, I'm gonna try.