Category: Politics & Current Events
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?
The Broken Windows Theory led to an era of aggressive policing of petty offenses — which in turn led to increased confrontation between police and civilians.
The theory depends upon the proposition that tolerating bad conduct, however petty, sets social norms, and that bad conduct steadily escalates to meet those norms.
Second, at the community level, disorder and crime are usually inextricably linked, in a kind of developmental sequence. Social psychologists and police officers tend to agree that if a window in a building is broken and is left unrepaired, all the rest of the windows will soon be broken. This is as true in nice neighborhoods as in rundown ones. Window-breaking does not necessarily occur on a large scale because some areas are inhabited by determined window-breakers whereas others are populated by window-lovers; rather, one unrepaired broken window is a signal that no one cares, and so breaking more windows costs nothing.
Let's take this as true for a moment.
If tolerating broken windows leads to more broken windows and escalating crime, what impact does tolerating police misconduct have?
Under the Broken Windows Theory, what impact could it have but to signal to all police that scorn for rights, unjustified violence, and discrimination are acceptable norms? Under Broken Windows Theory, what could be the result but more scorn, more violence, and more discrimination?
Apparently we've decided that we won't tolerate broken windows any more. But we haven't found the fortitude to do something about broken people. To put it plainly: just as neighborhood thugs could once break windows with impunity, police officers can generally kill with impunity. They can shoot unarmed men and lie about it. They can roll up and execute a child with a toy as casually as one might in Grand Theft Auto. They can bumble around opening doors with their gun hand and kill bystanders, like a character in a dark farce, with little fear of serious consequences. They can choke you to death for getting a little mouthy about selling loose cigarettes. They can shoot you because they aren't clear on who the bad guy is, and they can shoot you because they're terrible shots, and they can shoot you because they saw something that might be a weapon in your hand — something that can be, frankly, any fucking thing at all, including nothing.
What are we doing about this? Are we pushing back against unwarranted uses of force and deprivations of rights, to prevent them from becoming self-perpetuating norms?
No. We're not pursuing the breakers of windows. If anything, we are permitting the system steadily to entrench their protected right to act that way. We give them second and third and fourth chances. We pretend that they have supernatural powers of crime detection even when science shows that's bullshit. We fight desperately to support their word even when they are proven liars. We sneer that "criminals have too many rights," then give the armed representatives of our government stunning levels of procedural protections when they abuse or even kill us.
Do we really believe in Broken Windows Theory? If we do, how can we be surprised at more casual law enforcement racism, more Americans dead at the hands of police, more matter-of-fact violations of our constitutional rights? We left the windows broken. We helped set the norm. They're just following it.
It was late when Zach arrived back at the mall from the newspaper office. The entrance was blocked by a restraining order, partially shredded. Zach and Tom walked on, past the two Human Rights Commissioners the government had stationed to prevent further Hate Speech against the Corleone family, and the good name of Italian-Americans everywhere. The door was opened by another Human Rights Commissioner. wearing an outsized coat and vest over a big belly. Zach thought the Commissioner sure was fat, then banished that thought, as a form of body-shaming. As the over-sized Commissioner held the door, Zach reflected:
Body-shaming is ubiquitous and abhorrent; it happens everywhere, to pretty much everyone, at one time or another. It is especially levied against women, who are shamed for being skinny, for being tall, for being short, for having large breasts, for having small breasts, for having tattoos, for not having tattoos, for body hair, for dressing as they will, for being sexy, for being prudish, for being smart, for having interests outside STEM. Women are shamed at some point for being pretty much anything while also being female, including for being ugly (and failing to serve a purpose as a beauty object) and for being pretty (which must mean they are vapid or dumb). Zach shuddered that he had fallen into the trap of fat-shaming. The vest was no doubt padded with writs, for the protection of the Corleone family and others against harassment and hate speech, but even if it wasn't, the Human Rights Commissioner had a right to dignity, and to revel in his own body.
Inside, Sonny, Clemenza, and Tessio were waiting. Sonny came to Zach, and took the young student-columnist's head into his hands, saying kiddingly, "Beautiful, beautiful, that police captain sure knocked you up real good."
It was Tom who spoke first, over the stunned objections of Clemenza and Tessio: "Sonny, 'knocked up' is an outdated phrase used by anti-woman bigots and mansplainers to describe pregnancy. It implies, to right-thinking people, an element of physical violence, and if I may say so, using that term is a monstrous form of Hate Speech. It denigrates women, and it denigrates choice, the choice that each woman has to decide for herself whether to terminate an unwanted fetus."
"Sorry Tom," Sonny muttered. "It won't happen again." Zach and Tom walked into the room, and closed the door.
"Jesus Christ, Zach, the old man's barely talking," said Clemenza.
Tessio spoke up, "Pete, has it occurred to you that Zach might not be a Catholic, that Zach might not be a Christian, that Zach might be an Atheist, or a Muslim, or a Jew? When you invoke that name, you're excluding people of faiths outside Christianity (which I might add is responsible for 2,000 years of genocide and repression), and people of no faith. You're talking Hate Speech, and if weren't for the law of omerta, I'd turn you in right now."
Sonny added, "Sal, you're right, but I should add that referring to the Don as 'the Old Man' is ageist. It connotes senility, and at the same time grants him an authority he doesn't necessarily deserve. We can do better than this. It's a form of Hate Speech, and it should be against the law, if it isn't already."
All five men remained silent, for a few minutes, reflecting on their crimes.
Finally, Zach broke the silence. "What have we heard about the Turk?"
"JESUS CHRIST!" the other four interjected, then hung their heads in shame.
"Mister Sollozzo is holed up with that police captain," Tom said at last. "He's untouchable with that kind of protection. What you have to understand is that no one has ever attacked a New York police captain. All of the five families, and the Human Rights Commission, would turn against us."
"You get me a gun, and I'll kill him," said Zach. "And I won't do it out of any racial or religious animus. I'll do it out of respect for my father."
Sonny hugged Zach, violently, smiled, and said "Tom, this is speech, and this man's taking it very personal. It ain't like the war. You gotta get up on top of them until you see the whites of their eyes and then BADA-BING! All over your nice Ivy League suit!"
Clemenza sighed, "Sonny, I wish you hadn't said that. The Bada-Bing is a strip club in a racist melodrama that denigrates Italian-Americans as gangsters, sexists, and thugs. The media have promoted this stereotype through a plethora of mafia movies. It's fair to say that a disproportionate number of Italian-Americans have been portrayed as hoodlums by Hollywood. Though not to the same extent as people of color, marginalized European-Americans, such as Italian-Americans, Greek-Americans, Serb-Americans, and Ukrainian-Americans, are generally reduced by screenwriters to a caricature of what Anglo-Americans deem them to be. Tragically, this marginalization at the hands of White society leads these maligned peoples into prejudicial conduct against women and people of color, the true victims of Hate Speech. If we're ever to move forward, the sort of speech in which you just engaged needs to be outlawed."
"So there's no hope for us?" Zach asked.
"I guess not. We should turn ourselves in to the Human Rights Commissioners," Tessio agreed.
And so ended the Five Families War of 1946.
Then out spake prim Horatius,
The Censor of the Gate:
"To every persyn upon this earth
Butthurt cometh soon or late.
And how can we do better
When facing fearful speech,
Than shut down all discussion,
And stop the crimethink's reach?
"As for the tender mother
Who knits a woolen toy,
Best send the cops to brace her
Although it gives her joy,
It matters not what we think,
We privileged with some sense,
Call the cops if anyone
May somehow take offense.
"Haul down the books, Oh Councils,
With all the speed ye may;
I, with the state to help me,
Will halt bad speech in play.
If the people won't obey us
And alter all their norms,
Then force of law we'll bring to bear,
and stop extremism in all its forms.
This crazy litigant goes to 11.
Roca Labs, you may recall, is the weight-loss-goo purveyor that is belligerent, litigious, and sensitive to criticism to a pathological degree. Last month I wrote about how they require their customers to sign no-criticism contracts, and had sued PissedConsumer.com for carrying negative reviews. Yesterday I lit the Popehat Signal to seek help for customers Roca Labs has targeted with vexatious litigation — including, in what no doubt is just a big coincidence, one of the witnesses against them in their first litigation.
Can Roca Labs push the envelope more? Yes they can.
Today Marc Randazza — counsel for PissedConsumer.com in Roca Labs' frivolous suit — filed an updated notice of related cases in the PissedConsumer case. That updated notice revealed that Roca Labs has now sued Randazza himself for his activities defending PissedConsumer.com.
The complaint itself — which I have uploaded here — brings the crazy and brings it good and hard. It was penned by Roca Labs' latest attorney, one Johnny G. DeGirolamo, a 2009 law school graduate and 2011 bar admittee, whose website is www.inlawwetrust.com. No, really. His site offers a flattering headshot of a smiling advocate, and it was a very good choice to use that picture rather than, say, his booking photo.
Roca Labs, through Johnny G., accuses Marc of interference with economic advantage and defamation per se4, demands a declaration that Randazza is wrong and he is libel, and moves for an injuction telling Marc to shut up. Yeah, good luck with that.
But that ain't all. The complaint is a model of prissy pearl-clutching. Johnny G. is aghast that Randazza has provided legal services to adult entertainment companies. Goodness gracious! Johnny G. is horrified that Randazza has been "an outspoken advocate for Phillip Greaves, the author of 'The Pedophiles Guide to Love and Pleasure.'" To be more accurate, Randazza has been an outspoken advocate for the First Amendment issues presented by Greaves' case, but it's not surprising that a First Amendment distinction is lost on the sort of attorney who wold represent Roca Labs. Johnny G. is cheesed off at Randazza's catchphrase murum aries attigit, which apparently suggests a level of aggression that is upsetting to a company that flails around suing its customers for criticizing it. In short, Johnny G. — bless his heart — does his best to make Marc Randazza sound terrible, and only wind up making him sound knowledgeable about free speech.
On to the substance of the claim, if I may use the term very generously. Roca — through Johnny G. — asserts that Marc has been defaming Roca Labs during this litigation by making statements to the press (or, as Johnny G. puts it, to "webzines") and then putting those same statements in court pleadings. They imply he's trying to cloak his statements to the media with litigation privilege by repeating them in court filings. This theory is . . . odd.
Moreover, Johnny G. and Roca Labs are conspicuously vague about exactly what statements are defamatory, and exactly how. Other than complaining that Randazza defamed Roca Labs through a very clearly satirical tweet on Halloween, there are few specifics. Roca Labs complains that Randazza's purpose is to "mock, ridicule, humiliate, harm, and continue his war against ROCA," but that's not very specific. Roca Labs complains about statements in articles by TechDirt and tries to attribute them to Randazza, but doesn't explain exactly what Randazza said and exactly how it was wrong. That lack of specificity is probably deliberate — if Roca Labs admitted they were mad over the term "snake oil," they'd have to confront the fact that the phrase is obviously protected opinion. See, e.g., Phantom Touring v. Affiliated Publ'ns, 953 F.2d 724, 728, 730–31 (1st Cir.1992) (holding that description of theatre production as “a rip-off, a fraud, a scandal, a snake-oil job” was no more than “rhetorical hyperbole”). Moreover, in some parts of the complaint Roca Labs is attacking statements that are clearly, objectively true based on Roca Labs' own court documents. For instance, Roca Labs angrily quotes a paragraph in which TechDirt accused them of trying to silence customers. Which is what they are doing.
Finally, the complaint attaches a motion for a temporary injunction, in which Johnny G. demands that Randazza cease and desist saying mean things about Roca Labs, retract prior mean things, and remove any online content about Roca Labs. At this point I have to admit that I don't know whether Roca Labs and Johnny G. are powerfully stupid, breathtakingly cynical, unapologetically unethical, or all three. Despite the fact that they are suing a renowned First Amendment lawyer, despite the fact that they are demanding an injunction silencing him, despite the fact that they have lost a similar injunction request in which Randazza schooled them on the First Amendment and prior restraint issues, and despite the fact that it is clear those issues will arise again, their motion makes no mention whatsoever of the overwhelming First Amendment and prior restraint issues presented by their demand.
Roca Labs is mistaking aggression for strategy. Randazza, by filing his notice of related case, has alerted the federal court hearing the PissedConsumer.com case that Roca Labs is flailing around suing opposing lawyers, which will not go over well. Roca Labs has hired what appears to be an improbably matriculated Muppet to champion their case, despite a patent lack of qualifications. Roca Labs thinks that suing Marc Randazza to shut him up is going to end well. They should have asked Raanan Katz or Crystal Cox how that would turn out.
I'm calling it: Roca Labs has achieved Prenda status.
For years, I've been criticizing the trope that the American Right (for want of a better term) is victimized by the mean rhetoric of the American Left (ditto). I ridiculed a rightie blogger when he said that accusations of racism are inherently tyrannical and silencing, I dissented when Clint Eastwood complained he should be able to tell ethnic jokes without being criticized, and I scoffed when Kirk Cameron said that he should be able to say homosexuality destroys civilizations without people being mean to him about it. I've discussed how both the "Left" and the "Right" have stretched the term "bullying" beyond recognition.
It's time for me to confess: I'm not entirely sure what some conservatives are up to.
Have they immersed themselves in "victim of speech" culture, accepted its premises, and become part of it? Are they making fun of it subtly? Are they acting to discredit it by overusing it? Are they illustrating how it can be abused, and how it is unprincipled?
Hell if I know.
Take Dennis Prager. I've criticized Prager before for suggesting that mean liberal rhetoric bullies conservatives into changing political positions. In his most recent foray into the issue, Prager portrays himself as the victim of a leftist mob based on angry reactions to comments he made about national dialogue over campus sexual assault. He said:
One in five women are sexually assaulted on campuses? You know what sexual assault means? Did you ever look at what counts? An “unwanted kiss” is considered sexual assault. I’m stunned it’s only one in five. Four out of five women have not gotten an unwanted kiss? My wife gets unwanted kisses every so often!
Prager then nails himself to a cross, citing incendiary comments at places like Huffington Post and Wonkette. He complains:
Second, mockery — indeed cruel mockery — is the norm on the left. I urge readers to visit any of the liberal websites cited and read the comments after the articles. No significant American group hates like the Left does. If you differ with them — on global warming, race relations, same-sex marriage, the extent of rape on college campuses, and any number of other things — they will humiliate, defame, libel, and try to economically crush you.
Look, I know this will provoke a few dozen comments making the empirical claim "the Left just is meaner than the Right." I don't buy it. I think we're hardwired to take more offense at attacks on "our side," and disregard attacks made by "our side." Take a look at the comments on Prager's own column — or on any column on NRO — if you doubt me. I guess that "their commenters fairly represent them, but ours don't represent us" is an argument, but it's not a persuasive one.
So what are Prager and his ilk up to? Do they genuinely see themselves as victimized by rough criticism? Do they actually think that social pressure directed at their speech is different from the social pressure they seek to direct? Or is this an elaborate pantomime, designed to illustrate that "bullying" rhetoric is unprincipled and can be used by anyone against anyone?
Whatever the answer, it's a misstep. If conservatives have fallen prey to the speech-victim ethos, it's a failure of character; if they think they are teaching a lesson, they are too optimistic about their audience. As I said recently in the context of "GamerGate," when you use rhetorical tropes and techniques, you normalize them, so they can be more easily used against you.
Bullshit should be identified as such. Complete lack of proportion should be commented upon. True threats should be reported and their makers stomped. Genuine harassment should be called out. But "we can't endure the unique rhetorical meanness of the other team" does not convey "our ideas are right and we deserve to lead." Instead, it insidiously promotes the very worst and most un-American of ideas: that we have a right not to be offended, that we have a right not to be ridiculed or disagreed with, and that speech might be as bad as action, and therefore a proper subject for regulation.
Cowboy up, Dennis Prager.
[AP] EUGENE, OR:Leading scientists across the globe announced yesterday that they have confirmed the irreversible failure of the American experiment in liberty and self-rule based upon their observations of University of Oregon Student Senate Vice President Miles Sisk.