Welcome to the redesigned Popehat

We've fixed the place up some. Hope you like it. If anything isn't working right, feel free to leave a comment or else send me an email.

As you can see, the most recent post will always display at the top. Below that you'll see whatever relatively new post and old post we've chosen to sticky this week. The rest of the posts are below. You can also navigate some of our most popular tags and categories above, or navigate by author, date, or category on the right-hand menu down the page a bit.

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Edited to add: Some people have been having problems with the front page not serving them the most recent posts. That's been an issue for a while. We think it's a problem with Cloudflare caching, and we're going to address it.

Lead Us Not Into Temptation

Imagine a controversial feminist, much maligned for incendiary rhetoric about gender relations. Scheduled to make a speech to like-minded people in some bastion of conservatism, she is approached by male critics, doused with several drinks, and pursued down the street by an angry, shouting crowd, quite plausibly out to do her physical harm.

This scenario shouldn't be hard to imagine; outspoken women of all political stripes get death threats and abuse all the time. Most of us would condemn it. Most of us would be dismayed by the attack on our hypothetical feminist.

Yet too many of us are willing to cheer when the person doused with drinks and pursued down the street is saying things we find to be horrific and evil.

Take the oozing pustule Daryush Valizadeh, better known as Roosh V. Roosh — whom we have mocked before — is thoroughly awful in every way. He's a vocal anti-Semitic conspiracy theorist, a proud rapist of women too drunk to consent, and generally a grotesque dehumanizer of women. He wrote a piece suggesting that rape should be legal on private property. Though he now claims it was satire, it's a testament to his persona that it's perfectly plausible that he meant it literally. At the very least, it's satire in the Ann Coulter sense, meaning that he wrote what he thought and then just punched it up a little bit.

Naturally he's controversial. Just as naturally, he has fans. Nobody ever went broke telling folks they're right to hate the people they already hate, and that all their ills are the fault of the people their foes. Roosh planned a Canadian tour, which predictably was met with a petition to deny him entry to Canada. In other words, people used their free speech to petition the government to use force and state power to exclude someone based on his speech. That's a worthy subject of its own post, but put it aside for now.

While in Montreal, out in the city looking for women to whom he could be a repulsive tool, Roosh had several drinks thrown on him and was pursued down the street by an angry group shouting obscenities.1 Many responses have been amused, triumphal, or approving.

It's beyond my modest abilities to feel empathy for Roosh; I won't pretend to. There is in my gut, in my lizard brain, a visceral joy at seeing him humiliated and threatened.

But we try not to order society via our lizard brains, and that's a good thing. Now, if we were to govern by my lizard brain, that would be perfectly acceptable, because my deep-seated hates and fears and instincts are all reasonable and proper. The problem is all those other damn lizard brains out there, worn by lunatics with different hates and fears and instincts. Roosh has a lizard brain too, and so do the losers willing to pay sixty bucks to hear him talk about how evil non-plastic women are. When we unleash the lizard brains — when we give into the temptation to ignore the distinction between speech and assault, between insulting and attacking — we will find to our great regret that the majority of lizard brains don't work like the ones we see on our carefully moderated Twitter feed. Most lizard brains are really fucking scary. For every lizard brain cheering when someone we hate gets chased down the threat by a screaming mob, there's two our three lizard brains ready to cheer when that happens to someone we agree with. I am more afraid of the consequences of normalizing and condoning this behavior than I am gleeful about the humiliation of an awful person.

I'm not saying you shouldn't revile Roosh. I'm not one of the people saying we need to respond gently to Roosh so his speech won't be chilled. Quite the contrary. Revile away. But keep your hands to yourself. Drench people in words, not beer. Let your words pursue them down the street.

Yes, I know. This is "concern trolling" or "slippery slope fallacy" and lack of perspective and sympathy for the devil and so forth. But go out unto the internet and look around and see the freaks and scum and extremists. Then come back and look me in the eye and tell me it's a good thing to encourage that crowd to react to speech like this.

When Lightning Strikes An Utter Tool

Harry Vincent is a 19-year-old college student and kind of a dick. That's banal. Lots of 19-year-olds are dicks, and many of them are college students. Harry Vincent is notable because he has been struck by proverbial lightning — he offended someone online, and that person had the inclination and free time to complain about him to his university, and his university had the shitty values and utter lack of proportion or good sense to punish him for it. That's an unlikely chain of events. But do we really want it to be more likely?

Harry Vincent goes to Texas Christian University. In his spare time, he likes to say "beaners" and imagine people he doesn't like being "exiled" to the Sahara Desert, which he may or may not think is a country.

ThatsNotWhatAnApostropheIsForDipshit

DeepThoughts

HurrHurrrImaPatriot

That's Harry — indifferently literate, choadish, kinda racist, and not particularly creative or good at any of it. The average 13-year-old on Reddit would school his sorry ass on being notably offensive in a hot second. Harry — who goes by @classypatriot, and probably not ironically — is just plain dull.

The internet is oozing with Harrys. But this one caught the attention of a some no-rocket-scientist-either woman in Maryland who encouraged her readers to complain to TCU about him. Harry wasn't speaking on behalf of TCU, or using their Twitter account, or talking to or about TCU students, and wasn't a TCU public relations official or anything. This person "Kelsey" apparently just felt that assholes shouldn't go to college. Ridiculous. Who would run our hedge funds?

Normally this wouldn't be a problem. If sensible people had received Kelsey's complaints of private-time toolbaggery by Harry, they would have shaken their heads and gone back to whatever it is that the hideously swollen academic-administrative class does all day. But apparently TCU lacks sensible people, because TCU suspended Harry Vincent and restricted him from dorms and campus activities. The FIRE has the story, and wrote TCU a stern letter. TCU is a private entity and not bound by the First Amendment — but, as FIRE points out, they claim to celebrate free speech, and ought not if they're going to act like this.

Does TCU, a private entity, have the right to suspend Harry without anything resembling due process for engaging in patently protected speech? Yep. Is its decision to do so worthy of our respect? No. It's ridiculous. First of all, it's arbitrary. I guaranfreakingtee you that a sizable percentage of TCU's student body routinely acts like assholes on the internet. Harry's being singled out because a petty and disturbed person ran across him — he's been struck by lightning. Second, it's unsustainable. Even the army of administrators that colleges support these days can't possibly keep up with policing and regulating the private online speech of students. It's a waste of money to try. Third, this runs contrary to what a college ought to be. TCU isn't some American madrassa openly advocating for uniform thought, like a Bob Jones or a Liberty. If you go to one of those places, you know what you're getting into. No, TCU is nominally a respected academic institution devoted to free inquiry. Suspending people for political expression, however uncreatively dickish, is thoroughly un-academic.

The appropriate American remedy for Harry Vincent being a bigoted twerp is (1) absent fatal alcohol poisoning, him growing up, and (2) more speech imposing social consequences. I suppose being suspended from a private institution is a form of social consequence, but it's a thoroughly disproportionate and disreputable one. Imposing official school punishments on the Harry Vincents of this world suggests that the TCUs of this world can't counter his oafish speech — that all the professors and administrators and earnest students cannot make a convincing counter-argument to some slackjawed dipshit saying "beaner." Doesn't inspire much confidence in the educational system, does it?

TCU deserves scorn for this. They deserve an object lesson as well. If TCU thinks that it ought to regulate its students' private speech when the fragile pussywillows of the internet object to it, why not take TCU at its word and help it along? I'm sure it will be easy to identify TCU students on social media and comment sections and blogs. Why not examine what they say, and write to the administration of TCU if it irks anyone? I'm not just talking about Harry Vincent's sophomoric twaddle. For every TCU student who says #blacklivesmatter, someone ought to write TCU protesting that #alllivesmatter, FOR FEELS. For every student who says something unflattering about Israel there ought to be an angry email. For every off-color joke, there should be a statement about the over-sexualization of society. For every student who makes a hurtful remark about political groups, TCU's administrators ought to get a missive from a Concerned Person. Maybe it's ridiculous to take personal offense at those things, you might say. Well, you might think so. But TCU is clearly interested in how random internet citizens feel about their students and their words. How can we not help them along? You can find email addresses here. Be polite.

Postscript: if you are inclined to write a comment complaining that I ought to be defending free speech without criticizing the speech or the speaker, kindly snort my taint, fool.

James Woods Punches The Muppet

There was an episode of the 1990s sitcom Murphy Brown in which Murphy, played by Candace Bergen, appeared on kid's TV show to soften her image. The show features Muppets; it's a transparent stand-in for Sesame Street. Murphy, true to type, loses her temper and punches one of the Muppets, eventually ripping its head from its felt shoulders.

It's rarely productive to punch the Muppet.

Somebody should have reminded James Woods. He's just wound up and thrown a haymaker at a Muppet, suing some anonymous troll on Twitter for suggesting that he's a "cocaine addict." Woods filed a complaint in L.A. County Superior Court claiming $10 million in damages for defamation and false light invasion of privacy. He's represented by Lavely & Singer, as people like him tend to be in making errors of judgment like this.

Woods probably has plenty of money, and can afford to waste it on this sort of enterprise. That means that he won't be ruined if the semi-anonymous Twitter user hits him with an anti-SLAPP motion and wins attorney fees — which could easily be in the mid to high six figures.

Why do I think that Twitter troll "@abelisted" (now deleted) can win an anti-SLAPP motion in defense of this suit? Because he's a Twitter troll, and reasonable people would take his tweets as abuse, hyperbole, and satire, not as a statement of fact. Therefore they can't be defamatory.

Only provable statements of fact can be defamatory. Insults, abuse, hyperbole, overheated rhetoric, satire, irony, and the like cannot be. Whether a particular statement is one of fact or opinion is generally a legal question for the judge, not a question for the jury. Moreover, the judge must evaluate whether the statement is one of fact or opinion based on the context in which the statement was made. "The contextual analysis requires that courts examine the nature and full content of the particular communication, as well as the knowledge and understanding of the audience targeted by the publication." Bently Reserve L.P. v. Papaliolios, 218 Cal. App. 4th 418, 427 (2013). Increasingly, California courts have recognized that online rhetoric is more likely to be interpreted by its audience as cathartic trash-talk, not a factual assertion. This is especially true when it occurs someplace particularly known for overheated rhetoric, like a gripe forum. Furthermore, California courts have recognized that anonymity and semi-anonymity increase the audience perception that statements are rhetorical rather than factual.

Anyone familiar with Twitter knows it to be overrun with trolls, malcontents, comical and satirical characters, and deranged stone-throwers. Every indication is that "@abelisted" falls into this category. In fact, Woods' own complaint does an excellent job of setting up the argument that @abelisted is engaged in hyperbolic insult, not factual assertion:

The owner of the AL Twitter Account has thousands of followers and, since at least December 2014, has undertaken to engage his followers with a campaign of childish name-calling targeted against Woods. In the past, AL has referred to Woods with such derogatory terms as "prick," "joke," "ridiculous" "scum" and "clown-boy."

So, Woods concedes that exaggerated insults by a Twitter troll are the context for the troll eventually saying "cocaine addict James Woods still sniffing and spouting."

Woods compounds this impression by emphasizing and griping about non-factual statements clearly protected by the First Amendment:

Indeed, a search on Google.com for "Abe List James Woods" yields the outrageous statements from the AL Twitter Account as the top two results, including one that calls Woods "a ridiculous scum clown-boy."

Moreover, @abelisted's profile — now deleted, but available through Google cache — explicitly suggests that his tweets are not all to be taken seriously:

TrollsGonnaTroll

Moreover, @abelisted's tweets show him to be a rather banal critic of conservative figures, quick to insult and criticize them. He probably targets James Woods because Woods is an outspoken conservative, something that tends to agitate narrow-minded folks who are used to entertainment figures being outspoken liberals.

In short: the context of @abelist's tweets, especially as emphasized by Woods himself, overwhelmingly suggest that any reasonable reader familiar with that context would take the "cocaine" tweet as part of a pattern of hyperbolic abuse by a trollish partisan, not as a factual assertion meant to be taken at face value. I won't say that Woods' complaint is frivolous or sanctionable, but @abelisted definitely has a very strong anti-SLAPP motion available to him, and Woods could easily wind up paying his attorney fees.

@abelist is a punk, but you get to be a punk in America without being held financially liable for it.

Either James Woods got shitty advice, or James Woods' attorneys failed to convince him to act sensibly. The Streisand Effect has already begun; four to five orders of magnitude more people will hear about @abelisted's stupid tweet than would have without this lawsuit. What's the point?

Don't punch the Muppet, James Woods.

Edited August 28 to add: "John Doe", who runs the @abelisted account, has retained me to represent him in Mr. Woods' suit. I will not be discussing the matter here during the litigation, at least until we have a ruling on an anti-SLAPP motion. As always, my law firm does not control, approve, or endorse anything I write on Popehat; it's a purely personal project.

L.A. Court Prohibits Center for Medical Progress From Publishing Some Undercover Materials About Abortion

My co-blogger Adam Steinbaugh contributed to the factual and legal research of this post.

A group called the Center for Medical Progress ("CMP") has been releasing a series of "undercover" videos as part of a campaign against Planned Parenthood and abortion. This week, a judge of the Los Angeles County Superior Court issued an order prohibiting them from publishing a narrow range of materials on that subject.

This post addresses the First Amendment implications of that order, not the legal, political, and social issue of abortion and/or Planned Parenthood's practices.

[Read more…]

Popehat Signal: Please Help Mandy Nagy And Her Family

It's time for the Popehat Signal. I failed last time I lit it in this case, but I'm lighting it again, hoping that the community of civic-minded, speech-cherishing, evil-fighting lawyers will respond.

I need your help defending a stroke victim and her family against a domestic terrorist who has replaced his bombs with ongoing vexatious litigation.

[Read more…]

The Man We Need: Kickass J. Biteme, Presidential Candidate

I'd like you to meet Kickass J. Biteme, candidate for President of these United States.

Mr. Biteme — or Kick, as he prefers to be called — says what he thinks. And what he usually thinks is that American politics is petty, venal bullshit.

Kickass tells it like it is. He calls out the media for a pack of smug, entitled scribblers every day. He knows how we can deal with America's enemies: blow them right the fuck up, instanter. He kicks over the trough of slops from which Congress feeds and mocks their pretensions. He knows how to cure ever social ill, how to meet every challenge: do something fast and muscular, and stop talking. He has no truck with carefully crafted campaign statements.

"But why do I need Kickass Biteme?" you might ask. "Trump's my man."

Well, sure. Trump's got a decent shot at winning your id's vote. Trump's sure of himself. Trump's loud. But Trump's a real person, and therein lies his flaw. The realities of his past disrupt the sweet song of our viscera. Kickass Biteme's got no baggage. When Kick rants about government for sale, we won't be troubled by reminders that he's been a frequent buyer. When Kick vents against the target of the day, we won't have to remember that he was sucking up to them a moon's turn ago when it suited his purposes. When Kick blasts manufacturers for sending jobs overseas, nobody's going to be handing around polos with his vulgar insignia made by Laotian eight-year-olds. When Kick cuts a sneering interviewer off at the knees, we can be confident that it's robust American moral vigor, not just the latest thread in a tired pattern of childish petulance. Kick is pure. Kick isn't a poseur.

Since the ballot doesn't (yet) have a box for "none of the above," Kick is the word and the way — Kick is the guy we back to say "not a single one of you lying narcissistic motherfuckers deserves anything more than a boot in the ass." Kick is the way we ask "why should we pretend be happy that it's time to choose between the clap and a crowbar to the nuts again?" Kick's how we express our outrage at the naked emperor, at the sordid, venal pantomime of American politics — without the cognitive dissonance of endorsing someone who is, themselves, clearly full of shit, someone who is just clever and cynical enough to see our disgust as a distinct voting bloc.

Vote Kick in 2016. Accept no imitations.

Lawsplainer: Did Gawker Aid and Abet Extortion? Nah.

tl;dr: nah.

Last week Gawker Media published an unusually vile story about an escort's apparent attempt to blackmail a married entertainment executive. In just one post, Gawker outed a man for an alleged same-sex encounter and acted as the willing instrument of blackmail.

Many Internet Lawyers have suggested that Gawker committed extortion, or acted as accessory after the fact to extortion, and that its writers may be criminally liable.

Are they?

Answer: no, probably not.

Assume For the Moment They Aren't Just Credulous Hacks

Let's set aside for the moment the distinct possibility that the whole incident is the invention of an unbalanced conspiracy theorist who duped Gawker through the intricate method of saying something scandalous that reinforced their worldviews.

Let's also assume, for the sake of argument, that the escort's communications to the victim constituted extortion: that at some point he said something like "use your influence to help me with my legal problem or I will reveal to the media that you sought to hire me for sex." Gawker's post containing some of the alleged communications is down, and we can hardly trust Gawker to have reported them completely or accurately.

Did Gawker Commit Extortion? No.

Title 18, United States Code, section 875(d) makes extortion a felony:

Whoever, with intent to extort from any person, firm, association, or corporation, any money or other thing of value, transmits in interstate or foreign commerce any communication containing any threat to injure the property or reputation of the addressee or of another or the reputation of a deceased person or any threat to accuse the addressee or any other person of a crime, shall be fined under this title or imprisoned not more than two years, or both.

Many courts have defined "other thing of value" broadly enough that it can probably include the victim's use of his influence to assist the extortionist in a legal matter.2

The escort may have violated this statute, but Gawker didn't. So far as we know, Gawker and its writers didn't demand anything of value from the victim. Rather, once the extortionist came to them, they printed his story. They carried out the course of action threatened by the extortionist, but they didn't make the threat or demand the thing of value themselves.

Was Gawker an Accessory after the Fact? No.

Title 18, United States Code, section 3 criminalizes being an accessory after the fact. However, that status is narrowly defined to helping people escape:

Whoever, knowing that an offense against the United States has been committed, receives, relieves, comforts or assists the offender in order to hinder or prevent his apprehension, trial or punishment, is an accessory after the fact.

Gawker didn't do that. If anything, publishing the extortionist's story made it more likely he'd be caught.

Did Gawker Conspire To Commit Extortion? No.

I don't think Gawker conspired to commit extortion, either. The elements of federal conspiracy are "1) an agreement to accomplish an illegal objective, 2) coupled with one or more acts in furtherance of the illegal purpose, and 3) the requisite intent necessary to commit the underlying substantive offense." But here the unlawful objective is demanding something of value (an exercise of influence) in exchange for silence. There's no indication that Gawker did that or agreed to it. If Gawker had said "unless you help this guy, we'll publish," that would be conspiracy to commit extortion. But what Gawker did instead was publish the threatened embarrassing information. There's no indication that they attempted to help the extortionist get anything from the victim.

Did Gawker Aid and Abet Extortion? No.

Someone can also be guilty of extortion if they aid or abet it under Title 18, United States Code, Section 2:

(a) Whoever commits an offense against the United States or aids, abets, counsels, commands, induces or procures its commission, is punishable as a principal.
(b) Whoever willfully causes an act to be done which if directly performed by him or another would be an offense against the United States, is punishable as a principal.

The elements of aiding and abetting are:

(1) that the accused had the specific intent to facilitate the commission of a crime by another, (2) that the accused had the requisite intent of the underlying substantive offense, (3) that the accused assisted or participated in the commission of the underlying substantive offense, and (4) that someone committed the underlying substantive offense.

That's not what Gawker did. Gawker didn't intend to help the extortionist get something of value from the victim in exchange for silence. That's the opposite of what Gawker wanted — a lurid story to draw clicks. Gawker lacked specific intent to extort, so didn't aid and abet extortion.

There Oughta Be A Law

You could imagine a law that, like a prohibition of receiving stolen property, makes it illegal to publish embarrassing facts to help an extortionist carry out their threat. But that law would probably run afoul of the First Amendment, like any law that ascribes to a publisher of information the liability of their source.

Gawker and its writers probably didn't violate federal law.3 Whether they have civil liability is a different (and potentially more complicated) question. And, of course, they have moral liability: they're vermin.

Living To Make A Difference

I was over 40 the first time something I wrote was published. The first thing I did was send an email to my high-school English teacher, Kathi Condell.

Ms. Condell — that's how I continue to think of her, even after she married again and demanded that I call her Kathi — taught several of my literature and writing classes. That was 30 years ago now. Her lessons remain. I remember them when I think about what I read and when I consider how and what to write.

Kathi Condell had a gift for connecting with teens. She was supportive without being indulgent, and age-appropriate without being condescending. She had high expectations, and conveyed a quiet confidence that those expectations were reasonable and achievable.

More than that, she taught literature and writing not as means, but as ends. Everyone knew you had to write well and get good grades to get into a good college, and get a good job, and so forth. Everyone understood the grind, particularly at a school like mine. But Kathi Condell believed we should be well-read because we loved reading, that we should reflect on what we read because it was meaningful and pleasurable, and that we should treat writing as a form of artistic expression, not merely a tool. She helped teach me that writing could be useful and expressive at the same time.

I wanted to be a lawyer from a very young age. She was always respectful of that goal, but always encouraged me to think about writing as an art whatever I did as a job. As I graduated college, and law school, and moved from job to job, she congratulated me but always asked me "but what are you doing to write?" For many years I wasn't doing much. That's why it felt so good to tell her that I was making an effort to write for writing's sake. I wanted her to know that she'd been right, and that I remembered.

Kathi Condell Herroon passed away Monday. I love to write, and that's because of two people — Kathi Condell, and my father. Thank you.

What if we could all live so that thirty years down the road, people we've touched want to share news with us about what we've helped them achieve?

Judge Lisa Gorcyca Doesn't Hate Kids. Judge Lisa Gorcyca Hates Failure To Submit.

Judge Lisa Gorcyca, a judge in Oakland County, Michigan, is getting quite a lot of press this week for sending three kids to juvenile detention.

Judge Gorcyca doesn't preside in criminal court. She doesn't rule on delinquency petitions in juvenile court. She's a judge in the Family Division. And she sent three kids to juvenile detention — and specifically ordered them separated — because they didn't obey her orders to cultivate a warm relationship with their estranged father.

[Read more…]