Category: Politics & Current Events
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.
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?
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.
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.
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.
This is the second in a new series, Ten Short Rants.
Memories Pizza, a modest shop in a small town in Indiana, has experienced a reversal of fortune. Plucked from obscurity, it became a symbol of intolerance: to some, a symbol of anti-gay intolerance, to others, a symbol of religious or viewpoint intolerance. Then, after death threats and a barrage of fake orders and denunciations, it closed down, and then got ludicrously rich.
You already have a strong viewpoint, most likely. So do I.
They're all damned lucky to be alive, as are their family members and pets.
Calling an armed law enforcement response to someone's house is attempted murder.
Senator Tom Cotton (R-AR) is in the news this month. For reasons that passeth understanding he's been offered up as a spokesperson for the 47 Republicans who wrote a letter to Iran.1 Today I noticed a number of links to 2013 reports asserting that Sen. Tom Cotton offered an amendment to a bill that would allow imprisonment without due process of the relatives of the targets or Iranian sanctions. The Huffington Post's Zach Carter may be Patient Zero on this idea:
WASHINGTON — Rep. Tom Cotton (R-Ark.) on Wednesday offered legislative language that would "automatically" punish family members of people who violate U.S. sanctions against Iran, levying sentences of up to 20 years in prison.
. . .
Article III of the Constitution explicitly bans Congress from punishing treason based on "corruption of blood" — meaning that relatives of those convicted of treason cannot be punished based only on a familial tie.
The proposed language, as described, struck me as an unusual thing for a Senator to do, even if the Senator graduated from Harvard Law School and therefore is not entirely responsible for his actions. Is this real? Or is this another case of journalistic malpractice on legal matters?2
The answer appears to be that nobody in this story understands what's being talked about.
Well, ladies and gentlemen, we're not here to indulge in fantasy, but in political and economic reality. America, America has become a second-rate power. Its trade deficit and its fiscal deficit are at nightmare proportions. Now, in the days of the Founders, there was accountability to the citizen. The Jeffersons, the Washingtons, the men that built this great republic, made sure of it because it was their own liberty at stake. Today, politicians has no stake in the nation!
All together, these men and women sitting up here represent less than 0.0000001 percent of the country.
You own the country. That's right — you, the citizen.
And you are all being royally screwed over by these, these bureaucrats, with their steak lunches, their hunting and fishing trips, their private jets and golden parachutes.
The United States has 33 different agency heads, each earning over two hundred thousand dollars a year. Now, I have spent the last two months analyzing what all these guys do, and I still can't figure it out. One thing I do know is that our country lost one hundred and ten billion dollars last year, and I'll bet that half of that was spent in all the paperwork going back and forth between all these agency heads. The new law of evolution in American seems to be survival of the unfittest. Well, in my book you either do it right or you get eliminated.
I am not a destroyer of countries. I am a liberator of them!
The point is, ladies and gentleman, that revolution — for lack of a better word — is good.
Revolution is right.
Revolution clarifies, cuts through, and captures the essence of the evolutionary spirit.
Revolution, in all of its forms — revolution for liberty, for money, for love, knowledge — has marked the upward surge of mankind.
And revolution — you mark my words — will save the malfunctioning nation called the U̶n̶i̶t̶e̶d̶ States of America.
Thank you very much.
(with apologies to Gordon Gecko)
The United States Department of Justice has released a prosecution memo explaining how it decided not to bring federal charges against Ferguson Police Department Officer Darren Wilson for shooting Michael Brown.
The report is 86 pages long, with 28 footnotes. The report's summary of relevant federal law — what charges are available, what it would have to prove to convict Officer Wilson, and the landscape of use-of-force law — appears correct. I can't evaluate whether the Department has misrepresented what witnesses said or the circumstances of their statements, but the report's evaluation of the credibility of witnesses is convincing: it is based on inconsistencies in statements, inconsistencies with scientific analysis of physical evidence, and other factors that I would use as a defense attorney to attack a prosecution witness. The Department's conclusion that it can't prove guilt beyond a reasonable doubt is likely correct. Its conclusion that there is no credible evidence supporting prosecution, because there is no credible evidence contradicting Officer Wilson's account, is arguable.
Were I still a federal prosecutor, I wouldn't recommend prosecuting the case, and were I Wilson's defense lawyer, I would like my chances much better than the prosecution's chances. I don't disagree with the factual or legal analysis. But I find it remarkable, both as a former prosecutor and as someone who has practiced criminal defense for 15 years.
I find it remarkable because most potential prosecutions don't get this sort of analysis. Most investigations don't involve rigorous examination of the credibility of the prosecution's witnesses. Most investigations don't involve painstaking consideration of the defendant's potential defenses. Often investigators don't even talk to potential defense witnesses, and if they do, don't follow up on leads they offer. Most investigations don't carefully weigh potentially incriminating and potentially exculpatory scientific evidence. If an explanation of the flaws in a case requires footnotes, you shouldn't expect it to deter prosecution.
Instead, I'm more used to the prosecution assuming their witnesses are truthful, even if they are proven liars. I'm more used to contrary evidence being cynically disregarded. I'm more used to participants in the system stubbornly presuming guilt to the bitter end. I'm more used to prosecutors disregarding potentially exculpatory evidence that they think isn't "material." I'm more used to the criminal justice system ignoring exculpatory science and clinging to inculpatory junk science like an anti-vaxxer.
Why is this case different? It's different because Darren Wilson is a cop. Cops get special rights and privileges and breaks the rest of us don't. Cops get an extremely generous and lenient benefit of the doubt from juries. Nearly every segment of the criminal justice system operates to treat cops more favorably than the rest of us.
The Department of Justice report didn't say "we can't prove this beyond a reasonable doubt, particularly because juries defer to cops." It didn't need to. It's understood. The Department of Justice also didn't have to worry about being called out for inconsistent approaches to other reports. That's because when you're a black guy who shoots a white law enforcement officer in self-defense, they don't write an 86-page memo with 28 footnotes about it. They just prosecute you.
It's not unjust that Darren Wilson gets the benefit of the doubt. It's unjust that nearly everyone else doesn't.
With the publicity have come tipsters; Judge Grendell is apparently both feared and despised. One tipster pointed me to a time that Judge Grendell took a different approach to free speech.
In 2003 Grendell was an Ohio state representative. In the context of a symbolic and rather belated vote to ratify the 14th Amendment, he was quoted sneering at the Democratic sponsor of the vote as an illiterate:
Talking about the case that determined "separate but equal," the story said: "Grendell said Mallory should read the case, Plessy
vs. Ferguson, but he doubted Mallory would understand it. 'He's the only reason I might support the OhioReads program,'
Grendell said, referring to the state's volunteer tutoring program."
For what it's worth, Grendell is white and Mallory is black.
This generated condemnation from both Republicans and Democrats. Then-Representative Grendell defended himself, saying he was taken out of context and sounding a ringing endorsement of free speech:
The true irony of the situation is that had I made the comments attributed to me, it would have been my right to do so, without
censure or reprimand, based on my 1st Amendment Right to free speech," he wrote.
How did Judge Grendell descend from celebrating his constitutional right to be an ass in 2003 to mouthing platitudes about limits on free speech in 2015? What a curious journey for a "constitutional oriented judge and legal scholar."
Bedford New Hampshire School Superintendent Chip McGee is a sensitive man. Chip McGee is sensitive to his duties as an educator. He's sensitive to the instruction and welfare of his students. He's sensitive to the constitutional limits on his power as a government official.
But mostly, he's sensitive to Chip McGee's butt. And Chip McGee's butt hurts. Chip McGee's butt hurts as though Chip McGee was "the Gimp" at Rod Stewart's last acid and cocaine-fueled anal wombat insertion party.
Why does Chip McGee's butt hurt so? Because feelz.
A number of students at Bedford High School were disciplined after making remarks on Twitter about Superintendent Chip McGee’s announcement on the social networking site that classes would resume on Wednesday.
It seems students said rude things about McGee's insistence they attend school the day after a blizzard. Chip McGee understands that the students have a right to speak their minds. After all, the Constitution guarantees even students the right to free speech. But with that great power comes a great responsibility, the responsibility not to upset Chip McGee.
“Kids said some very funny, clever things,” McGee said on Thursday. “And some kids stood up and said, ‘Hey, watch your manners.’ That was great. And some kids — a few — said some really inappropriate things.”
And so Chip McGee suspended four of them, for tweeting, from the privacy of their homes, about just what an appalling dildo-bat Chip McGee actually is.
“It’s been a really good exercise in issues of students’ right to speech, on the one hand, and students’ and teachers’ rights to an educational environment that’s conducive to learning,” McGee said. “Kids have the right to say whatever they want about me.”
However, this does not mean students should expect to be able to make inappropriate comments on social media without consequences, McGee said — even though the tweets were sent outside of school.
Actually, the First Amendment means that students do have the right to say that Chip McGee is an appalling dildo-bat from the the privacy of their homes, even on social media, without governmentally-imposed consequences. And Chip McGee, for whatever reason the citizens of Bedford, New Hampshire in their wisdom decided, is the government. Schools may discipline students for speech that disrupts the classroom (shouting, during math class, that "Chip McGee is an appalling dildo-bat") or for speech advocating illegal activity,
But it is not illegal to call Chip McGee an appalling dildo-bat, or "the Gimp" at Rod Stewart's last anal wombat insertion party, from the privacy of one's home, or even on social media. In the first case, this is protected opinion (I sincerely and genuinely believe that Chip McGee is an appalling dildo-bat), and in the second, mere hyperbole. (It was probably just a ferret, or maybe a mongoose.) Particularly given that in Bedford, New Hampshire, Chip McGee is the government. He is The Man, as that wombat, and Rod Stewart, could assure you. And if these students and their parents sue Chip McGee, and win (as they assuredly would) he'll never pay a dime.
“The First Amendment right means you can say what you want, (but) it doesn’t mean that you are free of repercussion,” McGee said. “It can’t disrupt what we’re doing in school … If something disrupts school, and it (occurs) outside school, we not only can take action, we have to.”
McGee said he hopes that students will learn from this incident about “the line” of decent and appropriate commentary.
“You only learn that by checking where it is, and having something happen when you cross it,” he said.
"I support free speech, but" is the eternal cry of the government censor who knows censorship is illegal, but abuses his power because, fuck it, he's the government. In Chip McGee's case, it's a very big but. A but large enough to fit a wombat.
Or maybe a ferret or a mongoose.
We tweeted these innocuous questions to Chip McGee earlier today.
— Blasphemous Hat (@Popehat) January 30, 2015
.@mcgee_chip Because you're quite mistaken about the First Amendment. It saddens me that you're allowed anywhere near unformed minds.
— Blasphemous Hat (@Popehat) January 30, 2015
No wombats, or ferrets or mongeese, were harmed during the making of those tweets. And yet Chip McGee has deleted his twitter account, in record time.
In the wake of the Charlie Hebdo massacre in Paris, some media outlets have published pictures of the cartoons that were terrorists' purported justification for slaughter. Some have not. Some have steered a bizarre middle course and shown people holding blurred cartoons.
The New York Times has elected not to publish the cartoons depicting Muhammad. The Times' public editor explained the decision as follows:
Mr. Baquet told me that he started out the day Wednesday convinced that The Times should publish the images, both because of their newsworthiness and out of a sense of solidarity with the slain journalists and the right of free expression.
He said he had spent “about half of my day” on the question, seeking out the views of senior editors and reaching out to reporters and editors in some of The Times’s international bureaus. They told him they would not feel endangered if The Times reproduced the images, he told me, but he remained concerned about staff safety.
“I sought out a lot of views, and I changed my mind twice,” he said. “It had to be my decision alone.”
Ultimately, he decided against it, he said, because he had to consider foremost the sensibilities of Times readers, especially its Muslim readers. To many of them, he said, depictions of the prophet Muhammad are sacrilegious; those that are meant to mock even more so. “We have a standard that is long held and that serves us well: that there is a line between gratuitous insult and satire. Most of these are gratuitous insult.”
“At what point does news value override our standards?” Mr. Baquet asked. “You would have to show the most incendiary images” from the newspaper; and that was something he deemed unacceptable.
I have questions for the Times in light of this policy.
1. Does the Times maintain a list of gratuitously offensive types of expression, and act based on that list, or does it address items on a case-by-case basis? If there is a list, is it public?
2. How big does a group have to be for the Times to accept its assertion that particular expression is offensive?
3. What percentage of a group must view expression as offensive for you to refrain from that expression? In other words, what portion of Muslims must find depictions of Muhammad to be gratuitously offensive for you to refrain from that expression?
4. Do you consider the degree of offense within a particular group? How do you measure that degree?
5. If there is dissent within a social or religious community about whether something is gratuitously offensive, how do you decide which faction to listen to?
6. Do you consider whether claims to offense may be politically motivated? For instance, if some American group (say, religious conservatives) asserted loudly that use of terms like "Happy Holidays" was gratuitously offensive, would you accept that, or would you ignore it on the basis that it was part of a "culture war?" If Americans claimed that the Flying Spaghetti Monster is gratuitously offensive because it is calculated to mock religion, how would you evaluate that claim?
7. Do you consider the recency of claims of gratuitous offense? If the claims arise relatively recently — when in the past the conduct was tolerated or did not occasion great statements of offense?
8. Does it make any difference to your decision that a particular group will react to what it sees as "gratuitous offense" with violence? Follow-up: if you do consider that, do you evaluate whether responding to threatened violence by not publishing something may encourage more threatened violence?
9. Has the New York Times ever decided not to run a religious image other than Muhammad on the theory that it would be sacrilegious or gratuitously offensive? Which one?
10. The Times has previously run anti-Semitic cartoons when they are in the news, "Piss Christ," pictures of a painting of the Virgin Mary smeared with dung, and pictures of Westboro Baptist protesters in vivid anti-gay shirts. Is it the Times' position that those decisions can be reconciled with this one, or is this a change in policy? If it is a change in policy, is it intended as an institutional one, or one that just remains during the tenure of a particular editor?
11. Please consider the cover of the new post-massacre Charlie Hebdo:
Is this picture, leaving offense aside, newsworthy? If so, will you weigh that newsworthiness against the offense you believe it will give, or apply a categorical ban? Do you believe that words can adequately convey the literal, figurative, and emotive impact? If someone asserts that the picture is offensive not just as a depiction, but as a caricature, can your readers evaluate that claim without looking at the picture?
12. Are there particular staffers at the Times who specialize in evaluating and advising about degrees of offense? How are they trained?
13. Do you have a plan for what to do if a group expands its assertions about what is offensive? For instance, suppose that some Muslims begin to assert — vociferously — that depictions of all those it counts as prophets (including Jesus) are offensive and must be avoided, how would you evaluate that claim?
14. There are, as you know, different groups within Islam. What if a reform group began encouraging depictions of Muhammad as a signifier of reform, asserting that the contrary interpretation is false, and that those who attack depictions are wrong about Islam? How would you decide which faction to avoid offending?
15. Let's say some blogger starts a trend of using this emoticon: @[–<. It is widely understood that the emoticon is meant by its users to depict Muhammad, in an effort to illustrate that bans on depictions are unprincipled and can easily be made ridiculous. Would you run the emoticon? Or would you just describe it? How would you decide?
16. Imagine that a segment of Muslims begins to assert that it is sacrilegious to print Muhammad's name without a ṣalawāt like "pbuh." Are there conditions that would arise that would lead you to do so? What are those conditions? Are violence, or threats of violence, one of them?
I'm just asking questions.
Fellow public servants!
From the reports and the debates on these reports heard at the last city council meeting, it is evident that we are dealing with the following main facts.
First, the wrecking and diversionist-espionage work of disgruntled city employees, among whom a rather active role was played by the police, affected more or less all, or nearly all, of our organizations – economic, administrative, and sewage treatment.
Second, sabotage and espionage are being carried out at the social media level, including Facebook and Twitter.
Third, some of our city employees, both at the center and at the periphery, not only failed to discern the face of these wreckers, spies, and killers, but proved to be so careless, complacent,and naive that at times they themselves assisted in sabotage by failing to discipline or terminate the wreckers.
These are the three incontrovertible facts which naturally emerge from the reports and the discussions on them.
WHAT HAVE WE LEARNED, FELLOW CITIZENS?
How are we to explain the fact that our city employees, having a rich experience in the struggle against all sorts of jay-walking, littering, and sewage leaks, proved in the present case to be so naive and blind that they were unable to discern the real face of the enemies of South Pittsburg, that they failed to recognize the wolves in sheep's clothing and were unable to tear away their masks? What negligence, friends! And how shall it be punished?
Can it be claimed that the wrecking and sabotage of the agents of disgruntled city employees operating in the territory of South Pittsburg can be anything unexpected and unprecedented for us? No, it is impossible to claim this. This is demonstrated by the wrecking acts in various branches of the road maintenance department during the past ten years, beginning under the previous mayor, as is recorded in the minutes of the July 2014 council meeting.
Can it be claimed that in this past period there were no precautionary signals or warnings about the wrecking, spying, or terrorist activities of the disgruntled agents of the water department? No, it is impossible to claim this. We had such signals, and the city council has no right to forget about them.
WHAT IS TO BE DONE?
What are the facts which our city employees have forgotten about, or which they simply have not noticed?
They have forgotten that city employees at all times act as representatives of South Pittsburg, whether at work, at home, in church, or on the internet. They have forgotten that there is no right to privacy in South Pittsburg. We have an accepted habit of chattering about the cold coffee in the council meeting room, but people don't want to ponder about what this thing is – sabotage by Myrtle Huffines, the mayor's secretary, who has been told, again and again, that we want Folger's, not Maxwell House from the Piggly Wiggly. Sabotage is not a myth, it is a very real and ever-present threat. by wreckers who wait for the opportunity to attack South Pittsburg, to crush it, or to undermine its might and to weaken it within.
It is this main fact that our city employees have forgotten. And so we must bring down the fist of the united peoples and government of South Pittsburg upon these enemies, to remind them of their duty. Henceforth, fellow public servants, fellow citizens, the eye of South Pittsburg shall be upon you all. All of these traitors, and all enemies of the peoples of South Pittsburg must be reminded, that criticism of the city council and its departments is a termination offense. We will pursue these enemies to the death, as we did with the raccoon that was knocking over trash-cans on Woodleaf Road.
The mistake made by the dissenters on the council is that they fail to notice and do not understand this difference between the old and new South Pittsburg, the changes wrought by the traitors of Facebook and Twitter, and, not noticing this, they are unable to adapt themselves to fight with the new wreckers in a new way. I move that the revised policy on social media use by city employees be passed.
Do I have a second?