(Part 2/2) Devils' Advocate: Meet The Lawyer Fighting To Keep Nazis And Trolls On Twitter
Randazza may have gotten his Porsches from porn, but he got his passion from politics, and developed an eye for media-savvy trolls long before the rise of the alt-right. In 2009, a Florida computer science student registered a domain, “GlennBeckRapedAndMurderedAYoungGirlIn1990.com,” as, he said, a parody of Beck’s questioning style, in which he frequently asked guests to prove a negative. Beck filed a defamation suit against him with the World Intellectual Property Organization. Randazza took the case and successfully argued that the site was a political statement. Afterward, having proved the point and drawn an enormous amount of attention to the site, Randazza suggested that they give the domain to Beck.
“It was fun shoving his bullshit right up his ass,” Randazza said.
Mostly, though, Randazza was good at keeping porn clients on the right side of the law. In 2009 he got hired as general counsel for Liberty Media, the gay porn giant. That job went sour. In 2012, Randazza quit amid mutual recriminations; Liberty claimed that Randazza had been ripping them off with outside work, and Randazza claimed that he had been ripped off, harassed, and wrongly fired. In 2015, Randazza lost at arbitration — in which he was represented by Ken White, of Popehat.com — and was ordered to pay Liberty $600,000. (Earlier this year, a federal bankruptcy judge vacated the award.)
“It was fun shoving his bullshit right up his ass.”
It was a dark year. Randazza’s marriage began to fall apart at the same time. One of the people who got him through was Mike Cernovich. The two had known each other by reputation since the mid-2000s, when they both had active legal blogs. (Cernovich started Crime & Federalism in 2004, years before his turn to men’s self-help and anti-feminism on his better-known blog, Danger & Play.) They got to know each other better when Randazza represented dozens of legal bloggers and other publishers, including Cernovich and Ken White, who were sued for defamation by a lawyer, Joseph Rakofsky, for reporting that he had been laughed out of court for poor performance by a judge. (The suit did not go well for Rakofsky.)
Years later, Cernovich reached out to his old attorney when he learned that Randazza was struggling.
“Mike was there for me when things started to go bad,” Randazza said. “A lot of my personal life started to fall apart. A lot of people who were swinging from my nuts started to let go.”
The two became close friends, and Randazza began to represent Cernovich in intellectual property and open records cases. That’s how he became the house free speech lawyer for the right-wing internet.
“People who were politically aligned with him saw that I did good work for him,” Randazza said. “They trusted me despite me not being a political ally. I believed in their rights.”
But Randazza does more than simply believe in and protect the rights of his new clients. One of the open records cases he’s litigated for Cernovich involves Jeffrey Epstein, the disgraced financier who pleaded guilty in 2008 to soliciting prostitution and procuring a person under 18 for prostitution. Epstein’s alleged sexual abuse of minors has been for years extrapolated into a wide-ranging conspiracy theory on the right regarding a child sex ring that involves the Clintons, Hollywood executives, and the financial elite. Cernovich, who promoted the Pizzagate conspiracy, has consistently pushed pedophilia conspiracies. In pursuing open records cases for him, Randazza appears to be furnishing Cernovich with fresh ammunition. (Both men point out that the Reporters Committee for Freedom of the Press filed an amicus brief, signaling their support, in the matter.)
Beyond providing his noxious clients material aid and comfort in the disinformation wars, Randazza’s critics say, he’s failed to maintain a barrier of professionalism between himself and their rhetoric. Unlike the stoic ACLU lawyers who argued for the First Amendment liberties of neo-Nazis in the 70s in Skokie, for someone doing a supposedly solemn duty, Randazza sure seems to be having a blast. He attended the January internet-right party “A Night for Freedom” in DC. He regularly appears on Infowars to discuss First Amendment law. He’s made the bizarre, seemingly tongue-in-cheek argument that his client Andrew Anglin shouldn’t be responsible for coordinating the harassment of a Jewish real estate agent because he doesn’t believe the Holocaust happened. Whether or not it’s part of a vigorous representation, Randazza appears to have bought into some of his clients’ bullshit. In a July column titled “Just Because You’re Defending Nazis Doesn’t Mean You Have to Be a Prick About It,” Above the Law editor Elie Mystal lambasted Randazza, with whom he is friendly, for publicly stating that Alex Jones has compassion for the Sandy Hook parents:
“If you are going to make your career along the lawyerly duty to give the most disgusting among us a competent legal defense, then stick to the law. If you have a First Amendment argument, MAKE IT, and leave the rehabilitation of Alex Jones’s character to Donald Trump. … Court is the place where we have stylized arguments about the technical legality of proposed atrocities,” wrote Mystal.
Indeed, in the anti-snowflake right, Randazza seems to have met his rhetorical tribe, a group of offense-giving white guys who relish backlash. Recently, the subject of North Korea’s large untapped gold deposits came up on a conference call between Randazza, Anglin, and Randazza’s partner, Jay Wolman, who is Jewish. Randazza impersonated Eric Cartman from South Park and repeated that character’s joke about Jews knowing where gold is hidden. Anglin asked Randazza if he was red-pilled. Randazza laughed and said of course not.
“I have an affinity for people who stir shit,” Randazza said. “I’ve been stirring shit since I learned how to stir shit.”
“I’m going to bring the fist of fury and I’m not going to cover it in the most comfortable lubricant.”
People who stir shit: While we were sitting in his office last month, Randazza received a call from Dennis Hof, the Nevada pimp who is the Republican candidate for state legislature in his district. Nye County had just revoked Hof’s brothel license, which Randazza said was an act of political retribution. (Randazza also has an office in Las Vegas, and he represented Hof in a successful First Amendment case against the county, which took down some of his campaign signs.) On the call, Randazza referred repeatedly to a county employee as a “cunt,” as the men plotted how to take revenge.
“I’m going to bring the fist of fury and I’m not going to cover it in the most comfortable lubricant, Dennis,” Randazza said.
Like his clients, Randazza relishes shocking speech. No matter how much his political views diverge, he shares with them a tone, which in 2018 has become a form of politics all its own. And judging by his tweets bemoaning outrage culture and wokeness, he sees threats to that tone as a threat to American free expression, even if those threats have nothing to do with the First Amendment.
“Absolutists to their discredit mow the lines between these two,” Mystal told me. “Most of the First Amendment absolutists think political correctness has been a scourge on America. It crosses the line from defending a principle to defending the idea that anybody can say anything to anyone else with no repercussions.”
The problem with this kind of conflation, Mystal said, is that it reorients the threat to liberty from the government to the threat to liberty posed by callout culture. It’s a misdirection of the “don’t tread on me” impulse focused on cultural authority instead of government authority — hence the concept of cultural libertarianism. That’s how President Trump, the most powerful man in the world, can present himself as the target of a powerful conspiracy to his base.
“If you’re going to put your whole flag on the First Amendment,” Mystal said, “That flag needs to be firmly planted against the government.” Randazza’s defenses of Jones and Anglin don’t involve government action; they’re lawsuits filed by private citizens whose lives have been irrevocably altered by speech.
Mystal’s point echoes one long popular among liberal First Amendment thinkers. In his famous survey of freedom of speech in America, A Worthy Tradition, Harry Kalven arrived at one central meaning of the law: that “seditious libel cannot be made the subject of government sanction.”
“A case against an asshole does not have an impact limited to assholes.”
Neither the Trump administration nor state governments are censoring conservatives, who hardly pose a seditious threat to the government. Indeed, it’s hard to say that there’s a proper First Amendment threat to conservative speech at all. In fact, it’s probably easier to make the opposite case. Unlimited corporate money has been protected as political speech under the First Amendment since Citizens United v. FEC. The Supreme Court, moving ever rightward, recently ruled that labor unions cannot compel nonmember workers who benefit from union protections to pay dues, on the grounds that doing so violates their free speech rights. In her dissent in the case, Janus v. AFSCME, Justice Elena Kagan accused her conservative colleagues of “weaponizing the First Amendment.”
Still, Randazza and other First Amendment advocates argue that it’s impossible to separate the cases against Jones and Anglin from other future censorship that could result from judgments against them — a precedent that could eventually be aimed at more vulnerable political groups.
“That’s fencing off in an unrealistic way the impact of cases involving Nazis,” Ken White told me. “A case against an asshole does not have an impact limited to assholes.”
It’s a tough message to deliver in a time when it seems like the assholes are winning. Do they really need the help? Ask Randazza why he’s defending people whose entire raison d’être is triggering the libs, and he throws up his hands. The principle is the thing that has got us this far, he says, and it’s the thing that he’ll continue to fight for.
“It’s like evolution. I’m not smart enough to say where’s it going. I’m not smart enough to tell you where the marketplace of ideas will lead us. Maybe the apex animal is the cockroach or the rat. Maybe that’s where the marketplace leads us.”
Judging by the current state of Twitter, Facebook, and YouTube, not to mention the national discourse, the marketplace of ideas may have already crowned the cockroach. And yet these networks, under political and cultural pressure to fight the spread of disinformation and harassment, have in Section 230 a very powerful can of Raid. That is, near-absolute authority to moderate their platforms, over and above cries of chilled speech from the right.
However prominent those cries, they may well be met with popular indifference. Just as Marc Randazza formed his beliefs around free speech in a liberal culture that lionized the First Amendment for protecting Vietnam protesters and Larry Flynt, young people in 2018 are forming their opinion of free speech in a moment when those most loudly claiming its virtues are conspiratorial grifters like Alex Jones and racists like Andrew Anglin and Richard Spencer. It’s not clear that they like what they see.
Even as Randazza argues his clients’ cases on First Amendment grounds, he may well be harming the popular sentiment around free speech that is one of the only bulwarks against platforms unilaterally censoring all they want. He may be defending the neutral principle of free speech in the courts while helping to damage it in the speech arenas of the present and future.
Those close to him seem to have some understanding of that potential damage. Recently, Ronald Green, Randazza’s partner, called to say he had serious misgivings about taking on a very high-profile prospective client. (Randazza and Green told me this anecdote on the condition that I not name the client.) Green thought that this person was motivated to speak so he could make money, regardless of the truth. It might set a bad example, he reasoned, to argue that this speech, which was full of conspiracies and inflammations, should be protected under the First Amendment.
“Sometimes we have to take people on who we find unsavory, but that’s what a commitment to the First Amendment means,” Randazza told Green. Discussion over. They took the client — consequences be damned.
In the wake of the recent campus free speech debates, polling around millennial and Generation Z support for free speech principles has become the subject of fierce debate. Those on the right and the center claim the data show a drop in tolerance for dissenting viewpoints, and those on the left say the data show that these groups are only against certain kinds of dissenting viewpoints (namely, racist speech). Even assuming no change in popular support for free speech principles and absent regulation, there’s very little, besides their own squeamishness, to stop social platforms from developing their own speech codes to a place that excludes much of the far right. It’s true that these platforms act genuinely afraid of the conservative response to accusations of censorship. Still, it’s hard to imagine, if the platforms move gradually enough, that conservatives can stop the move to speech rules that seek to guarantee what Kate Klonick calls “the fair opportunity to participate.”
Of course, even well-intentioned speech rules are incredibly difficult to design; they can chill wanted speech, and they can backfire. In 1987, the University of Michigan enacted anti–racial harassment speech codes in response to a series of racist incidents on campus. In the 18 months the code was enforced, before being struck down in federal court, 20 black students were charged by white students with using speech such as “white trash.”
Some version of this, the dreaded false equivalence, already exists on the internet. Right-wingers on Twitter, including Cernovich, have turned the tactic of reporting offensive past tweets into a poisonous campaign against liberals — winning temporary suspensions. (BuzzFeed News staffers, including me, were caught up in the most recent round of this.) More ominously from a legal standpoint, a judge in California recently overruled a motion to quash a subpoena that now has the potential to unmask Randazza’s anonymous Charlottesville client. It’s easy to imagine how a different kind of judge might look to such a ruling to justify unmasking, say, far-left protesters. And First Amendment advocates like Randazza will be the first to say “I told you so.”
Marc Randazza may be helping to hurry the process by which young Americans come to see a guiding cultural principle as a cynical tool.
That’s why Marc Randazza fights for a neutral principle that protects everyone’s right to express their views. He argues it’s the best way to structure public discourse. His clients have included not just bombastic right-wingers but the American Muslim Women Political Action Committee, the political activist Vermin Supreme, the Satanic Temple, a woman blogger whose coverage of the Steubenville High School rape case turned it into a national story, and the controversial civil rights attorney Lisa Bloom. He lives his ideals.
But the First Amendment in the United States isn’t in danger. When white supremacists wanted to rally in Washington in August, they received a police escort and their own subway car. What’s in danger is the status of near-total free speech as an unalloyed cultural virtue in the eyes of an American public who has seen unfettered free speech on the internet help flay the country apart. What’s in danger is a thousand virtual Skokie marches a day hindering the still real democratic potential of social platforms. And in not just representing, but rhetorically casting in with the loudest, least sympathetic, and least sincere people to claim the firstness of the First Amendment — people whose speech is totally unthreatened by the current federal government — Marc Randazza may be helping to hurry the process by which young Americans come to see a guiding cultural principle as a cynical tool.
Which would be a shame. Because there are urgent free speech cases out there. In August, federal agents arrested a 33-year-old Boston man who tweeted that he would give $500 to anyone who killed an ICE agent. It’s a despicable sentiment — one that should have gotten the man kicked off of Twitter. But this man has been charged with “using interstate commerce to transmit a threat to injure another.” His speech clearly falls short of the famous Brandenburg v. Ohio test for incitement, which allows for punishment only of speech that is calculated to produce “imminent lawless action” and is likely to actually produce that action. And given the number of death threats lodged every day on social media, the prosecution seems selective, to say the least.
Back at Randazza’s office in Gloucester, I asked him why he does what he does. He pointed out the window at the old town. “People came here in 1623,” he said. “I don’t buy the mythology that they came here for freedom. They came here to be zealots. This country has been the shit stirrer since the day it was founded.” He paused. “I am having fun, but I’m tired too. I love doing this because I sincerely love this country. I believe what I do is the only way that I know how to pay this country back.” He began to cry. ●
September 27, 2018, at 12:08 a.m.
The ACLU has not taken the case of Brandon Ziobrowski, a Massachusetts man arrested for offering a reward to anyone who would kill an ICE agent. An earlier version of this story claimed the organization was representing him.