Category: Politics & Current Events

17

What Charles Carreon could teach ICANN

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Popehat is happy to offer a new guest post from Cathy Gellis.

There is no question that the right of free speech necessarily includes the right to speak anonymously. This is partly because sometimes the only way for certain speech to be possible at all is with the protection of anonymity.

And that’s why so much outrage is warranted when bullies try to strip speakers of their anonymity simply because they don’t like what these people have to say, and why it’s even more outrageous when these bullies are able to. If anonymity is so fragile that speakers can be so easily unmasked, fewer people will be willing to say the important things that need to be said, and we all will suffer for the silence.

We’ve seen on these blog pages examples of both government and private bullies make specious attacks on the free speech rights of their critics, often by using subpoenas, both civil and criminal, to try to unmask them. But we’ve also seen another kind of attempt to identify Internet speakers, and it’s one we’ll see a lot more of if the proposal ICANN is currently considering is put into place.

In short, remember Charles Carreon? (more…)

91

Gamer Gate vs Anti Gamer Gate A Civil Discussion on Inclusiveness

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Consider this post a teaser trailer. Randi Harper, author of a Gamer Gate block bot and I will be debating discussing the thesis

"are the virtues of an open society / inclusiveness / debate best served by excluding those who are not in favor of full inclusiveness?"

(I think the answer is "no").

Randi's busy for a week or two (and so am I), but hopefully next week she and I will have the email discussion, which will then be tidied up for formating and posted here.

In Randi's words:

this is going to be fun. ;)

139

DoJ's Gag Order On Reason Has Been Lifted — But The Real Story Is More Outrageous Than We Thought

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Last Friday the folks at Reason confirmed what I suggested on Thursday — that the U.S. Attorney's Office for the Southern District of New York, after hitting Reason with a federal grand jury subpoena to unmask anonymous hyperbolic commenters, secured a gag order that prevented them from writing about it.

Nick Gillespie and Matt Welch describe how it all went down. Read it.

So, the truth is out — and it's more outrageous than you thought, even more outrageous than it appears at first glance.

What, you might ask, could be more outrageous than the United States Department of Justice issuing a questionable subpoena targeting speech protected by the First Amendment, and then abusing the courts to prohibit journalists from writing about it?

The answer lies in the everyday arrogance of unchecked power.

(more…)

260

Two Kinds of Freedom of Speech (or #Strangeloop vs. Curtis Yarvin)

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Two kinds of freedom of speech

I've argued a few times (sometimes conveying my message successfully sometimes not), that freedom of speech is not merely a legal issue centering on the first amendment, but also a cultural issue, centering on our willingness to tolerate the presence and the words of those we disagree with – even when we know that those ideas aren't merely foolish (e.g. preferring Chocolate ice-cream over a good French Vanilla), but actively destructive to individuals, families, and nations (take your pick – abortion pro/con, immigration pro/con, etc.) ( I note in passing that I've been called an "Enlightenment fundamentalist" by one of my Popehat co-bloggers for my willingness to engage with people outside the Overton window, and, no, he didn't intend it as a compliment; quite the opposite.)

I've even argued for years something sillier – silly because it should have to be argued at all – that we should enjoy non-political products by people that we disagree with politically (I gave as an example how I read books by China Mieville – a member of the International Socialist Organization and Socialist Workers Party).

Culture considered more important than law

In my earlier Gamer Gate post I talked about "entryism":

As a poet once said: Cthulhu swims slowly, but he only swims left. Isn't that interesting?

The blue team has made amazing progress over the last three hundred years. Occasionally by force of arms, but usually by a much more clever strategy: entryism.

Entryism, for those not hip to the lingo, is "a political strategy in which an organization or state encourages its members or supporters to join another, usually larger organization in an attempt to expand influence and expand their ideas and program. In situations where the organization being 'entered' is hostile to entryism, the entryists may engage in a degree of subterfuge to hide the fact that they are an organization in their own right."

Since World War II the Blue team in the US has entered into the stodgy old universities (taking advantage of the GI Bill and the resulting explosion in size of secondary education institutions), and taken them over completely. It has taken over the media (now called the "mainstream media" or MSM by the red team), because of this. It has taken over many corporate boards (although not all attempts have succeeded).

Over the last few years blue team has been rolling up red team's flank in a new battle: the tech world (or, pace Scott Alexander, they're actually trying to roll up the flank of a minor Red faction / ally that should perhaps be called "Gray": techno-libertarians).

This is a really smart move for Blue, as much of the economy has stalled out over the last ten years, and tech is the only area of growth. Who wants to own 90% of a stalled boat, when you could own 90% of a boat that's going somewhere?

Entryism is not a political or legal or economic mode of warfare ; it is a cultural mode.

But what are politics, law, and economies other than cultural structures?

Once you control Harvard Law, you control the courts. Once you control the courts, you control the laws. Once you control the laws, you control the people.

Or, alternatively: once you control the technology conferences you control the team leads, once you control the team leads, you control the engineers, once you control the engineers, you control the tech industry, once you control the tech industry, you control the 21st century economy.

(Godwin lulz: you know who else tried to take over education?)

If enlightenment law is destroyed, but enlightenment culture survives, we can rebuild the law.

…but if enlightenment culture is destroyed, then law necessarily follows, and there is no foundation to ever rebuild the lost freedoms on.

Thus one mote in the eye of the culture of free speech bothers me more than a beam in the eye of the law of free speech.

An anonymous email

Perhaps because I've written about free speech, or perhaps because I've written about "Urbit" twice before, or perhaps because of both I received an email with a pastebin URL.

The timeline

As best I can tell the the timeline of events is this:

Some time on or before 1 June the Strangeloop tech conference threw open its submissions process and Curtis Yarvin of the Tlon corporation submitted a proposal about his Urbit network / functional programming language. (Note: the Urbit talk description is at archive.is, because it's been memory-holed at the StrangeLoop website).

On 3 June Alex Miller of the Cognitect corporation sent told Curtis that his proposed speech was interesting enough to be worthy of being heard by "the creators and users of the languages, libraries, tools, and techniques at the forefront of the industry."

Then around 1pm on 3 June @bobpoekert noticed, in a relatively calm way, that Curtis had some off beat politics.

The calmness didn't last; @aphyr declared

And @bodil perceives that an error – the error of tolerance – has been committed, and hopes that it occurred only by accident, and will soon be corrected:

@joescii wonders how such an error of tolerance could possibly have happened

And @kf suggests that the tolerance was accidental – perhaps the Party merely forgot to do its due diligence and failed to ask software engineers if they are now, or have ever been, a card carrying member of any party right of center:

And one social justice warrior, @steveklabnik noted that

…oh, that's odd … the tweet is gone and the account is protected.

I guess Steve didn't like his own words being quoted to show that he like violence? Anyway, no problem, I took screenshots:

Who is this Steve Klabnik, by the way? Oh, just your average rails coder and violent communist!

The point being: Steve really, really, really doesn't like fascism. But initiating violence against his political enemies? That's different, and ggggggreat! And up there with initiating violence is getting thought criminals banned from technical conferences, it seems.

So there was a bit of a tempest in an organic, fair-trade teapot, and after five or so tweets, Alex Miller realized that Strangeloop had invited someone to speak on functional programming languages who might not, in his heart of hearts, agree that Thomas Carlyle was a dead white man who should be forgotten.

And thus, Alex Miller "fixed the glitch": he emailed Curtis and said that even though Curtis thoughts on functional programming were interesting enough to be heard at the conference, because of Curtis's thoughts on Carlyle and such, he was no longer welcome to talk to decent people about functional programming:

http://pastebin.com/e3X5xpNG

From: Alex Miller
Date: Wed, Jun 3, 2015 at 5:45 PM
Subject: Re: Strange Loop 2015 submission "urbit, a clean-slate functional stack"

Hi Curtis,

When your talk was posted on the Strange Loop web site today, I had immediate and vigorous feedback about the fact that you would be speaking at Strange Loop. I do not generally make any attempt to audit or care about the particular opinions or ideology of the people that I accept as speakers; I am generally focused on the content of the talks themselves.

However, in this case it is clear to me that your opinions in areas outside your talk are concerning enough for a significantly large number of attendees that those reactions are overshadowing the talk and acting as a distraction for launching the conference as a whole. Because of this, I am sorry that I must rescind your invitation and I will not be able to accept or include your talk at the conference. My apologies if this causes you any inconvenience.

Alex Miller

Or, to be a precise, it was alleged by an email I received that Alex had said this. Had Alex actually?

I reached out on 4 June and asked Alex if it was true:

Your circuit's dead, there's something wrong. Can you hear me, Alex Miller?

Despite several tweets asking for confirmation, Alex never responded to me. (Or at least that's my belief – I checked my mentions closely, but it's possible that a response slipped through.)

However the next day I saw a link being tweeted around; Alex, it seemed, had finally responded.

Strangeloop conference doubles down

https://s3.amazonaws.com/sl-notes/yarvin.txt

Curtis Yarvin submitted a talk in the Strange Loop 2015 Call for Presentations. The talk went through the review process and was one of about 60 talks selected for the conference out of about 360. The subject of the talk was urbit (attached below). While we use a multi-stage review process, ultimately all final decisions are made by me.

Earlier this week we published the bulk of the 2015 Strange Loop session list, including Curtis's talk. I quickly received feedback that Curtis also has an online persona under the name "Mencius Moldbug" where he has posted extensive political writings.

A large number of current and former speakers and attendees contacted me to say that they found Curtis's writings objectionable. I have not personally read them.

I am trying to create a conference where the focus is on the technology and the topics being presented. Ultimately, I decided that if Curtis was part of the program, his mere inclusion and/or presence would overshadow the content of his talk and become the focus. This would not serve the conference, the other speakers, the attendees, or even Curtis.

Thus, I chose to rescind Curtis's invitation and remove him from the program…

Alex Miller

So there we have it: Alex Miller believes in the heckler's veto:

If several people contact him saying "person X will speak on topic Y, but is bad because of opinion Z which he will not speak on, but I – the emailer – dislike", then Alex will exclude person X from his conference.

I defend Strangeloop on legal grounds

Now, Strangeloop is a private conference, and if Curtis' speech was going to violate one of the Strangeloop policies, I'd entirely support the legality of their decision.

Heck, even though Curtis' scheduled speech was entirely in keeping with every single one of their policies, and Strangeloop blatantly made up policies ad hoc in order to achieve the desired result, I support their right to do so. I've long supported the legal right of free association. The law (i.e. the government monopoly on violence) should not force people to socialize, work, or do business with those they prefer not to.

So, while I might not throw myself in front of literal tanks to keep the government from forcing Strangeloop to accept Curtis, I'd surely throw metaphorically throw myself in front of some metaphoric tanks, while I sit in my easy chair and type.

Side note: Lefties are Ayn Rand Acolytes

I've noticed a fascinating phenomena: ask a stereotypical rightist about some private action he doesn't like, and he'll say "anyone who doesn't like it should take their money elsewhere". As in "if a baker won't make cakes for gay couples, gays should take their money elsewhere", or "if Starbucks doesn't allow open carry, gun owners should take their money elsewhere".

Leftists are often more nuanced than this. Instead of using just a few of the ethical bases that Jonathan Haidt identified, as conservatives do, they use more.

Thus, instead of only embracing the "exit" branch of the "loyalty, voice, and exit" fork, they also embrace the "voice" branch: Whole Foods should stop selling meat, stop carrying Eden Foods products, abjure security guards, and open a new location.

Well, they're nuanced up to a point. It's been my sad experience to run into a majority of lefties who, as soon as you suggest to a leftist that they might change how they're doing things to be more progressive and congruent with the goals of an open and freedom-loving society, turn into Ayn Rand acolytes: "this is my bakery, and if you don't like it, go somewhere else!"

Curious.

But, still, I agree with them.

A call for consistency

I'll make a deal with lefties: I'll keep throwing myself in front of metaphorical tanks to defend their legal right to exclude Curtis and other wrongthink badfun people, if they'll defend a privately owned bakery, or a hobby craft store, or a –

Hey, wait, where are you guys going?

A few questions for Alex and the other conference organizers

Questions for Alex Miller (@puredanger), Ryan Senior (@objcmdo), Mario Aquino (@marioaquino), Nick Cowan (@notetoself_stl), and Bridget Hillyer(@bridgethillyer):

  1. Alex says that he does not "generally" consider political opinions, but – apparently – he does at least on occasion. What are the boundaries of acceptable opinions that one may quietly hold inside one's head while at Strangeloop ? May one hold a belief in a flat income tax? In no income tax? May one be a professed communist, wishing for the proletarians to rise up in armed revolution?
  2. If the organizers of Strangeloop have not read Curtis' political writings, how do you know that his beliefs are outside the bounds allowable at Strangeloop?
  3. If the answer is "significantly large number" of people complain, what is that number? One ? Two ? More ?
  4. Will that numeric threshold be applied in the future? If two or three conference attendees email you to say that some presenter's advocacy of, say, polyamory, or lesbianism, or whatever would make the conference something other than a "safe space", will you disinvite the speakers so that your conference attendees aren't forced to be in the same building as people they disagree with?
  5. Do you support the legal right of other conferences to discriminate against speakers based on characteristics that have nothing to do with their presentations?
  6. As adherents of the dominant (and growing!) ideology in America (Progressivism) do you think that diversity of opinions is our strength, or would you think that we would be better served by an ideological mono-culture?
  7. If you think "no", would that stance change if American society suddenly lurched to the right?
  8. Alex told Curtis that Strangeloop was canceling his talk because "reactions [ to his presence would ] act as a distraction for launching the conference". In light of the last few days, do you (plural) still think that banning Curtis was the most pragmatic approach to keeping attention focused where you wanted it?
  9. As your conference is intended to help curious and open-minded developers "make connections with the creators and users of new languages", and you've decided not to let them meet Curtis or hear about Urbit, where do you suggest they go for more information ?

A few questions for the conference sponsors

Questions for the corporate sponsors of Strangeloop, including Sparx, Machinezone, Cisco, Twosigma, Basho, Engineyard, Wolfram, Criteo, Mandrill, 8thlight, Asynchrony, Oreilly, Oasisdigital, Riotgames, Context.io, and Adzerk:

  1. In any of your HR documents do you describe your firm and workplace as "tolerant", "diverse", "welcoming", or "open"?
  2. Do you ask prospective employees about their personal beliefs, religion, or politics anywhere in the hiring process?
  3. Do you ask employees post-hiring about their personal beliefs, religion, or politics ?
  4. Have you ever found that excluding conservative candidates from your hiring process increases your pool of candidates?
  5. Would you fire an employee for personal beliefs, religion, or politics if you received emails complaining about opinions they held, but never mentioned at work?
  6. Do you think that your sponsorship and financial support of strangeloop is consistent with your corporate culture of tolerance?
  7. What message do you think your sponsorship of Strangeloop sends to conservative or libertarian engineers who are looking for their next job?
  8. What message do you think your sponsorship of Strangeloop sends to conservative or libertarian customers who are considering your products?
  9. Do you think that your sponsorship of a tech conference that excludes people based on their personal beliefs is a net win for your firm?

tl;dr

The legal right of free speech is important and worth defending.

The culture of free speech is important and worth defending.

We all profit in the long term if we tolerate – and even encourage – speech that we disagree with.

We all profit in the long term if we tolerate – and even encourage – non-disagreeable speech from people that we dislike for other reasons.

Tolerating everything except the outgroup is no sort of tolerance at all.

It is valid to use cultural means (e.g. this blog post) to pressure people and groups (e.g. Strangeloop) to advance from the Dark Ages to the futuristic year 1650 and accept Enlightenment ideas.

Further reading on Strangeloop vs Curtis Yarvin

A partial list of news articles and blog posts that have caught my attention:

and finally – and ironically – a blog post by Curtis himself two years ago that is hugely prescient: Technology, communism and the Brown Scare.

112

Leaked Northwestern University Email States Rules For Title IX Investigations

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A Northwestern University insider, who wishes to remain anonymous, leaked to Popehat the following email on Title IX investigations, which was circulated to the Northwestern faculty and staff last Friday.

FROM: Joan Slavin [Director, University Sexual Harassment Prevention Office; Title IX Coordinator; Special Assistant to the Provost]
TO: FACULTY GROUP [3,344 email addresses], ADMIN GROUP [3,635 email addresses]
DATE: Friday, May 30, 2015 at 3:15 p.m.

Dear Northwestern administrators and faculty:

Many of you have expressed concern and upset at Professor Laura Kipnis' latest article, this one attacking Northwestern's Title IX investigation of her based on a past article. (Those of you who have not read the article can find it here: http://chronicle.com/article/My-Title-IX-Inquisition/230489/?key=Gm52dwRqaXtKZyxmNjlDZTpTYXE8NEx2MnREYn8hblFREg==. Trigger warnings for victim-blaming, sexual assault issues, cultural prejudice.)

As you know, we have a strict policy against commenting on pending Title IX investigations except to Northwestern administrators, victims, witnesses, victim advocates, student-administration liasons, and victims' emotional support companions. Therefore, I cannot state whether or not several more students have filed complaints against Professor Kipnis based on her writing an article discussing her experience with students filing complaints against her based on her writing an article. I also cannot state whether we have commenced a new proceeding, a more comprehensive one this time, against Professor Kipnis.

But I must emphasize that Northwestern University will not tolerate any retaliation or aggression, macro- or micro-, against students who have made complaints against faculty or each other. Such retaliation is both unlawful under Title IX and against University policy. Professor Kipnis' latest article, like her previous one, represents a deeply problematical challenge to these community values.

This situation requires a review of our basic anti-retaliation rules. I hope that this will both remind you of your obligations and demonstrate without cavil that our policies are completely consistent with freedom of speech, properly understood.

Public Attacks On Victims: When a student accuses a faculty member or another student of sexual misconduct, the only University response consistent with Title IX is contrition, acceptance, and support. That's an obligation of all University employees. Whether or not the complaint has yielded public litigation or press coverage, it is inappropriate for University employees to engage in victim-blaming and victim-challenging behaviors that might deter complaints. Prohibited behaviors include weighing, evaluating, questioning, critiquing, deconstructing, or otherwise assaulting the victim's complaint. This proscription applies to all departments: it is inappropriate to challenge a victim's factual account or legal assertion through the disciplines of law, philosophy, rhetoric, logic, or physics. Statements of support and belief in the victim's account remain acceptable — and strongly encouraged — under any discipline.

Professor Kipnis forces me to clarify a point that ought already be plain in an environment like this one: "neutrality" is no shield for attacks on victim integrity. Professor Kipnes' columns suggest that it is appropriate in the course of discussing an accusation to report what the target says in response to it. Unless the response is a full acknowledgement of wrongdoing and apology, it is not appropriate. Repeating what the wrongdoer says in response to an allegation re-victimizes the victim. The pretense of "neutrality" or "even-handedness" or "telling both sides" has its roots in privilege. Neutrality is not neutral in any academically meaningful sense.

We recognize that these concepts can be difficult to understand for some, particularly those in the physical sciences. Therefore, we have retained a professional adviser to help employees comply with their obligations. Justin Weinberg is an Associate Professor of Philosophy at the University of South Carolina and has published a forceful rebuttal to Professor Kipnis' most recent article, and has reaffirming this University's values: http://dailynous.com/2015/05/30/northwestern-and-title-ix-whats-going-on/. As a respected Professor of Philosophy, he is eminently qualified to explain what areas of inquiry and discussion are inappropriate in a University environment.

Title IX Procedure: Professor Kipnis' latest article is a brutal and biased attack on the University's procedure for evaluating Title IX complaints. I must remind the faculty that discussions of procedure and "fairness" are not excuses to attack victims. Employees should avoid discussions that imply that any particular victim, or victims in general, may not be telling the truth, or may be seeking unwarranted remedies. We do not speak in a vacuum; our words can hurt and retaliate. Discussions of notice to the accused, assistance of counsel, burdens of proof, and opportunity to confront accusers all arise from a presumption that the victim might be untruthful or mistaken. That is not a presumption that we may lawfully or ethically entertain.

Curriculum: It is our collective responsibility to avoid unlawful retaliation not only directly, but implicitly. During this period of reassurance, and whenever Title IX investigations are pending, the College of Arts & Sciences faculty should avoid undue emphasis on problem authors whose texts undermine free reporting of sexual misconduct, such as Arthur Miller, Franz Kafka, or Harper Lee. This is an excellent opportunity to redouble our efforts to expose students to writers who embrace welcoming approaches to victim truths, including Rigoberta Menchu or Wahneema Lubiano. Classes on the American court system, civil rights and civil liberties, and criminal justice may continue so long as professors emphasize to their students that they are participating an an anthropological study of a profoundly sexist and cisgender-biased system and that no positive normative judgment is intended.

With these guidelines, I hope that faculty conduct will better reflect our University's shared values. Further Title IX investigations will help professors recognize how their expression, whether in the classroom or out of it, can help us achieve our goal: a welcoming environment for everyone.

85

How To Spot And Critique Censorship Tropes In The Media's Coverage Of Free Speech Controversies

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American journalists and pundits rely upon vigorous free speech, but are not reliable supporters of it. They both instruct and reflect their fickle audience.

It's easy to spot overt calls for censorship from the commentariat. Those have become more common in the wake of both tumultuous events (like the violence questionably attributed to the "Innocence of Muslims" video, or Pamela Geller's "Draw Muhammad" contest) and mundane ones (like fraternity brothers recorded indulging in racist chants).

But it's harder to detect the subtle pro-censorship assumptions and rhetorical devices that permeate media coverage of free speech controversies. In discussing our First Amendment rights, the media routinely begs the question — it adopts stock phrases and concepts that presume that censorship is desirable or constitutional, and then tries to pass the result off as neutral analysis. This promotes civic ignorance and empowers deliberate censors.

Fortunately, this ain't rocket science. Americans can train themselves to detect and question the media's pro-censorship tropes. I've collected some of the most pervasive and familiar ones. This post is designed as a resource, and I'll add to it as people point out more examples and more tropes.

When you see the media using these tropes, ask yourself: what normative message is the author advancing, and does it have any basis in law?

(more…)

46

Ville de Granby Takes The Lead In Protecting Endangered Official Feels

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[AP: Ville de Granby, Québec, Canada] Shouting their slogan Je suis important, vous ne pouvez pas irriter mon cul délicate, public employees celebrated a legal victory over internet abuse this week in Granby, a town in southern Quebec.

That victory came when the Granby municipal council unanimously passed an amendment to expand Article 17 of the municipal code. For years that code has forbidden the populace to "provoke, insult, revile, blaspheme or harass" police officers or municipal employees in the course of their duties. Last week's amended explicitly expanded the ban to prohibit insults online or in social media.

"This measure patches a gaping hole in our protection," said Robert Riel, deputy mayor of Granby. "People felt free to insult public employees online. Now they know they can't." Riel — occasionally pausing to collect himself — described how his ability to do his job had been ruthlessly disrupted by citizens criticizing his competence, his policy choices, and his 2010 arrest for attempting sexual intercourse with an award-winning snowman in Granby's public square during the town's Winterlude festival.

"That snowperson was extremely realistic and provocative," Riel added. "But my feelings are just as real."

Though it had strong support from elected officials, local police were the driving force behind the recent amendment. For two years, Granby law enforcement has been the target of relentless criticism, questioning, and even satire by the Facebook group Les policiers zélé de Granby, without any regarding to their rights as public officials and Canadians to be protected from offense. Some of the unflattering commentary was not even in French. Marco Beauregard, directeur of the department, recounted the toll that insults have taken. "My officers are out there ever day, putting themselves on the line," he said. "I owe it to them, and to their families, to do everything I can to make sure they come home at the end of the shift with their feelings intact."

Officers have reported being upset, disquieted, and even hurt by social media comments. "How can a public officer do his or her job," Beauregard demanded, "when people feel free to question the way they do it — and even to mock them? What makes them think they can talk about whatever they want?"

"My journey of improvement on anger-management issues is not an appropriate topic of public conversation, especially after last September," argued Beauregard, referencing an incident that led to the partial destruction of a traffic barrier, two police cars and the lobby of a local Tim Hortons.

"Being Canadian means standing up for your rights," said municipal council member M. Pascal Bonin. "That's all we are doing — using our authority to stand up for our right not to be insulted. It's a fundamental right, and it shouldn't yield to anything."

Bonin himself has been the target of rude jokes regarding his name, despite his repeated and patient explanations that it is pronounced Bon – eeen. "If citizens can say what they want about civic employees, you're going to see the whole culture of public life change," he said. "Before you know it, the only sort of people who will run for office or take a public job are the hardened sort that can just shrug off criticism as part of their job, or who think that they are only there to serve the public."

"And what would that look like," Bonin asked, shuddering.

57

Two Stories About The Criminal Justice System And Consequences

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Dateline, Washington D.C.: The Drug Enforcement Administration, pressed by Congress for answers about its treatment of Andrew Chong, has no answers to give.

I wrote about Andrew Chong before. He's the young man the DEA arrested in San Diego when they caught him smoking dope at a friend's house during a raid. DEA agents handcuffed him, locked him into a room, and left him there five days without food or water. He drank his own urine, eventually attempted suicide, and was close to death when he was discovered. He suffers from post traumatic stress disorder, not surprisingly. DEA agents claimed that he was left there through an oversight and that nobody could hear him shouting for help. An investigation determined that you could very clearly hear someone shouting for help from that room.

The consequences? Four written reprimands, a five-day suspension, and a seven-day suspension.

If I seize someone, handcuff them, lock them in a room, and leave them to die, I will suffer severe consequences. I will lose my job, especially if I acted while performing my duties. I will go to jail. I will suffer catastrophic personal financial losses. My name will be broadcast far and wide.

That's the difference between me and a federal employee.

The DEA agents who arrested Andrew Chong for smoking dope and left him to die got reprimands or suspensions that were shorter than my last tension headache. You and I — the taxpayers — paid Andrew Chong the $4.1 million settlement he secured; the agents did not. They are not named in any of the articles about the incident. They will not go to jail. They will not lose their jobs.

Free of significant consequence, they will continue to exercise their armed authority to inflict consequences on other people who break the law.

Dateline, Texas:

In 2013, Judge Susan Criss presided over the trial of Alisha Marie Drake, who stood accused of the horrific crime of videotaping the rape of a 14-month-old child. During jury selection, a Jehovah's Witness in the jury pool told Judge Criss that he would not view child pornography and that his religion did not allow him to judge others (an issue familiar to anyone who has ever encountered a Jehovah's Witness in a jury pool). Judge Criss berated the juror and belittled his religious beliefs:

So if it grosses you out, then you can take it out on the person in punishment because it can’t possibly gross you out more than it grossed out that child. So that’s what my God tells me.

Eventually Judge Criss ordered the prospective juror arrested:

Juror No. 48: Your Honor, I’m one of Jehovah’s Witnesses and I believe that Jehovah God is a Supreme Judge and it is not in my place to judge anyone else or to have, for that matter, for them to be – –

The Court: All right. I understand that. We have Jehovah’s Witnesses all the time. But you know what? If you get picked on this jury, you get picked on this jury, and Jehovah can visit you in the jail.

Juror No. 48: Okay. Then – –

The Court: Have a seat, sir.

Juror No. 48: I guess they have to visit me.

The Court: All right. Arrest him. Take him into custody. Take him into custody right now. I’m not playing. See you later.

Judge Criss later explained to the thoroughly cowed jury pool that her experience as a sex crimes prosecutor — which she related in detail — taught her it was difficult to find willing jurors in sex crimes cases, and that she would not be excusing people. "And I'm not playing, and I don't care if anybody likes it or not."

Yesterday the Court of Appeals overturned the conviction. Even though Drake's appointed attorney did not bother to object to Judge Criss' actions, the court found that her comments about the case improperly conveyed her opinion of Drake's guilt, and that her arrest of the prospective juror deprived Drake of an impartial jury by intimidating jurors from confessing possible biases.

But the public opinion by the Court of Appeals did not name Judge Susan Criss. That's a matter of tradition and professional courtesy. You'd have to figure out her name by Googling the case, or by getting it from court records or from someone who knows.

Susan Criss is now in private practice, although she enjoys a public life commenting on her past cases. Criss is defiant about her actions in the Drake case. She won't face any State Bar proceeding. She won't face any consequences at all for her conduct.

These stories are not the exception. They are the rule. The rule is this: citizens generally face consequences for breaking the law and violating the rights of others, but those with the power to administer those laws and impose those consequences rarely face any themselves.

That's the justice system.

72

"Safe Spaces" And The Mote In America's Eye

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My three kids are sarcastic and irreverent. This isn't a shock to anyone who knows me. Their mouthiness can be irritating, but usually I manage to remember that I don't set much of an example of rhetorical decorum.

Maybe I should start giving the same consideration to other people's kids.

For some time I've been mean to university students who feel entitled to a "safe space" — by which they seem to mean a space where they are insulated from ideas they don't like.

I call these young people out for valuing illusory and subjective safety over liberty. I accuse them of accepting that speech is "harmful" without logic or proof. I mock them for not grasping that universities are supposed to be places of open inquiry. I condemn them for not being critical about the difference between nasty speech and nasty actions, and for thinking they have a right not to be offended. I belittle them for abandoning fundamental American values.

But recently a question occurred to me: where, exactly, do I think these young people should have learned the values that I expect them to uphold?

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19

Why Are Nevada State Senators Trying To Eviscerate The State's Anti-SLAPP Statute?

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In 2013 Nevada passed the strongest anti-SLAPP statutes in the United States. This statute was muscular. Not only did it cover a wide array of speech, and require substantial proof of the potential validity of a claim, it had frills like a potential $10,000 penalty on top of attorney fees for SLAPPers and a private cause of action so targets of SLAPP suits could sue their tormentors. My friend and colleague Marc Randazza, First Amendment badass, helped frame it, which is why it was so strong. It's already proven effective in Nevada's courts. It's an excellent tool to protect free speech from meritless lawsuits.

So who in the Nevada Senate Judiciary Committee is trying to kill it, and why?

The Nevada Senate Judiciary Committee proposed Senate Bill 444, and the senate just voted unanimously to approve it. Now it's up to the Assembly, and the Governor. I hope they stop it, because it's a complete disaster. Senate Bill 444 takes Nevada's superior anti-SLAPP statute and renders it very substantially less effective:

  • The statute previously applied to the broadest possible array of speech, meaning it could be used to defend all sorts of defamation (and other speech-targeted) claims on matters of public interest.  SB 444 narrows the protection to speech on an "issue of public concern," meaning "any topic that concerns not only the speaker and the speaker's audience, but the general public, and is not merely a subject of curiosity or general interest."  If you have no idea what that actually means, you're not alone.  There's a real danger it will deprive defendants of anti-SLAPP protection when they've written about some relatively obscure hobby or issue or concern.  There's also a danger that it will be used to exclude consumer reviews on Yelp and similar sites from the protection of the statute.
  • SB 444 dramatically changes the deadlines for an anti-SLAPP motion.  The existing law — as in most states — allows a motion within 60 days of service of the SLAPP suit.  SB 444 reduces that to 20 days — a very short period to find a lawyer and have that lawyer brief a potentially complex issue.
  • Under the existing statute, if a defendant shows that a lawsuit is aimed at speech covered by the statute, the burden shifts to the plaintiff to establish that they can prevail on the claim by submitting evidence.  Though the statute refers to "clear and convincing" evidence, cases have interpreted it to mean only specific and non-speculative evidence.   SB 444 changes the language, requiring the plaintiff to make only a "prima facie case."  To non-lawyers, that means simply offering any evidence which, if accepted at face value, could support a claim.  It's not clear how the Nevada courts will interpret the meaning of that change, and how a plaintiff's burden will be reduced.  Moreover, SB 444 specifically excuses the plaintiff from offering any evidence of "subjective intent or knowledge of the defendant."  In other words, the plaintiff doesn't have to have any evidence suggesting that the defendant knew or should have known a statement was false.  This dramatically reduces the plaintiff's burden in opposing an anti-SLAPP motion.
  • Under existing law, a prevailing defendant is entitled to fees.  If the motion is denied, the plaintiff is entitled to fees if the court finds that the motion is frivolous or vexatious.  SB 444 changes that to require a fee award to a plaintiff who defeats an anti-SLAPP motion if the court finds that the motion was filed "in bad faith" or without "reasonable basis."  That inquiry is much cloudier and unpredictable than an inquiry into frivolousness, and will deter defendants from filing close-call motions.
  •   SB 444 eliminates the court's ability to award up to $10,000 penalty on top of attorney fees, and eliminates the cause of action against someone who files a SLAPP suit.  That substantially reduces the deterrent effect of the statute.

If you were a lawyer representing defamation plaintiffs — from businesses suing Yelp reviewers to aggrieved subjects of social criticism — this would be the bill you'd draft to undermine Nevada's anti-SLAPP statute. Is that what happened? Which specific Nevada State Senator introduced the bill, and whose water was that senator carrying? Why are the senators trying to reduce free speech protections so dramatically in Nevada?

I don't know. But if anyone knows Nevada politics and politicians, I'd like to find out, so I can write about it. If you care about effective anti-SLAPP statutes, you might write to Nevada State Senators asking why they killed the anti-SLAPP statute, or write to the Assembly members asking them to stop it.

81

Garry Trudeau Punches Down

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Last week cartoonist Garry Trudeau received the George Polk award for journalism. It's an award named in memory of a journalist murdered while covering a war. Trudeau used the opportunity to say that while murdering journalists is sub-optimal, journalists need to rethink offending people:

What free speech absolutists have failed to acknowledge is that because one has the right to offend a group does not mean that one must. Or that that group gives up the right to be outraged. They’re allowed to feel pain. Freedom should always be discussed within the context of responsibility. At some point free expression absolutism becomes childish and unserious. It becomes its own kind of fanaticism.

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40

DEA Orchestrates Disinformation Campaign To Conceal Surveillance Powers

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In Neal Stephenson's brilliant Cryptonomicon, a protagonist works for a shadowy Allied unit called "Detachment 2702." Detachment 2702 creates elaborate fake evidence to offer explanations of how the Allies learned of German movements, thus concealing that the Allies had cracked the Enigma code. Though fictional, the Detachment is based on actual World War II tactics. The Allies did things like send spotter planes to places they knew German ships would be to fortuitously "spot" them, and reportedly sent a fake radio message of congratulations to a non-existent spy to suggest a source for other intelligence.

You expect the government to use secret surveillance and disinformation campaigns against a wartime enemy. You probably don't expect the government to use secret surveillance and disinformation campaigns in court against its own citizens.

You should.

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