Category: WTF?

86

The Upward Surge of Mankind

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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 works.

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)

28

Update: Dr. Mario Saad Asks Court To Reconsider Prior Restraint On Epically Ridiculous Grounds

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Last week I wrote about how a Massachusetts federal court rejected Dr. Mario Saad's bumptious demand for a temporary restraining order forbidding the American Diabetes Association from publishing statements of concern about his scientific articles.

As I said, that was not a close call. But Dr. Saad, and his lawyers, are determined, in the sense of "completely out of their minds." They filed a motion for reconsideration, supported by what I will call, in an excess of mercy, a legal brief.

Federal courts strongly disfavor motions for reconsideration; generally you have to cite facts or law that you could not have cited before. Dr. Saad doesn't. Dr. Saad argues . . . well. I won't characterize it. Let me quote it.

Narrowly focusing on the expression of concern – this is speech that has already been published both online and in print format and has been disseminated to countless individuals. Dr. Saad’s request for injunctive relief, asking this Court to order this existing speech to be removed from publication, obviously does not constitute a prior restraint.

In other words, Dr. Saad thinks that when he asks the Court to order the ADA not to publish items in its print magazine, and to take down its online content, that's not "prior restraint" because the ADA has already gotten to speak once.

Dr. Saad does not cite a single case relating to the doctrine of prior restraint, the core issue he is arguing about.

That is not an argument I'd expect from a lawyer. That is an argument I'd expect from a guy trying to start a fight in a bowling alley. That is an argument that shows that the advocate making it either (1) has no idea what prior restraint is and is too lazy and/or stupid to look it up, or (2) thinks the judge is very, very gullible, or (3) both.

As the ADA points out with remarkable patience, that's not what prior restraint means. Prior restraint doesn't mean "once they've said it once you can keep them from saying it again." Prior restraint is when a court uses the force of law to limit speech before a final determination of whether it is lawful. That's exactly what Dr. Saad is asking for.

I cannot immediately recall a lawyer making an argument this breathtakingly ridiculous. I hope that the judge sua sponte imposes sanctions.

Edited to add: A bowling alley line in a prior restraint post wasn't a Lebowski reference. I'm not that clever.

26

Weekend Censorious Dipshittery Roundup

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You may take the weekend off. I may take the weekend off. But the censorious spirit never rests, friend.

Dateline: England. MP George Galloway has arranged for his lawyers to send legal threats demanding £5,000 [upon information and belief, about $375,000] from Twitter users who called him an anti-Semite. Mr. Galloway, who has pledged to use any proceeds to build a memorial to Saddam Hussein, has been in the news for yes-butting during discussions of the Charlie Hebdo massacre and declaring his district an "Israeli-free zone." Galloway's legal threats are naturally ridiculous — or would be, if they were uttered in a nation with more sensible libel laws.

Dateline: St. Thomas, USVI: Terri Griffiths, the Acting Attorney General of the U.S. Virgin Islands, does a terrific Tony Soprano impression. She threatened to file criminal charges against the Virgin Islands Daily News for calling her after business hours on a cell phone number she provided in order to seek comment on news stories concerning her public responsibilities. It is not clear if she was serious, drunk, unmedicated, or positioning the Virgin Islands as the site of the next Far Cry sequel.

Dateline: Louisiana State University: Logan Anderson, a 21-year-old junior from Texas who is majoring in mass communications, somehow has an incomplete grasp of First Amendment jurisprudence. She penned an opinion piece in the student paper rounding up the usual suspects in support of censorship of predictably douchey social media app Yik Yak. Anderson's piece is notable for unabashed use of a common trope:

Critics of Bach’s argument for censoring the app argued that doing so would violate free speech — the ever-important bastion of people who like to say rude things on the Internet.

Free speech is constitutionally protected. Hate speech is not.

Leave aside for a moment the communications major's sneer at the First Amendment. Anderson offers a legal proposition: that "free speech" is constitutionally protected but "hate speech" is not. In American law, this is simply false. There is no legally recognized category of "hate speech," let alone any recognized exception to First Amendment protections for "hate speech." This is not subject to reasonable dispute. Please go sell ignorance somewhere else, Ms. Anderson; we're all stocked up here.

37

A Brand New Exchange About Ponies

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David Charles

Jan 15

to me
Hi,

I hope you are well.

Would you be interested in collaborating with me on a free high-end article for publication on your site popehat.com?

All of my articles are of high-end editorial quality and will be 100% unique to you. I will provide a genuine piece that your readers will enjoy reading and will include one link in the body of the article.

Is there any particular area you'd like to see covered on the site? I have a number of topic ideas that I'd be happy to discuss with you further.

Please do get in touch if this is of interest to you.

Kind Regards,
David Charles
Editorial Manager
www.specialistauthors.com

Ken At Popehat

Jan 15

to David
Dear Mr. Charles,

I am well! Thank you for so hoping.

I am intrigued by the offer of a high-end article, particularly one that comes for free. It has been difficult to produce content for the website of late owing to a variety of factors that are best not transmitted by wire over state lines.

There is a particular area I'd like to see covered. Let me begin by asking — are any of your writers capable of addressing health and safety hazards? If so I will elaborate.

Respectfully yours,

Ken White
www.popehat.com

Ken At Popehat

Jan 27 (8 days ago)

to David
Mr. Charles? Are you there?

[email protected]

Jan 29 (6 days ago)

to me
Images are not displayed. Display images below – Always display images from [email protected]
Hi Ken,

Thanks for your email, appreciate you getting back to us.

My name is Aimee, I work with David here.

We are interested in working with you, and wondered if you would be interested in an article focusing on maintaining your brand status internationally online?

The article will be of the highest editorial quality and include one do follow link.

Would you be interested in proceeding?

Kind Regards,

Aimee

Editorial Quality Manager
www.Specialistauthors.com

Ken At Popehat

Feb 3 (1 day ago)

to aimee.w
Dear Aimee,

Thank you for responding! I sure hope David is all right. I was getting worried.

I appreciate your offer of an article focusing on maintaining my brand status internationally online.

Would this article be unique to our site? It would be hard to maintain our brand status even in this county, let alone internationally, if we have the same article everyone else has.

I'm very happy to hear that the article will be of the highest editorial quality. I don't mind sharing with you, Aimee, that we have some editorial issues at Popehat.com. There are fewer after certain legal proceedings involving Clark, but they have weighed heavily on my heart.

Is it possible to seek any customization of the article? I have nothing but respect for your high editors' grasp of multinational brand status issues, but there are certain pressing issues that I think are especially important. I'm wondering, specifically, if the article could address certain fell but little-known risks to brand status (and even to health and security).

Thanks,

Ken White
www.popehat.com

[email protected]

Attachments2:21 AM (14 hours ago)

to me
Hi Ken,

Thanks for getting back to me, much appreciated.

David is fine, he is just a bit snowed under at work now. Thanks for your kind concern :)

The article will be unique to your site, and I will not offer or share the content elsewhere.

You can of course have customization of the article, could you please let me know what you would like included or omitted in particular, and I can work this in.

I would need to request that the article is not tagged as either a guest post, posted by admin or mention Specialist Authors (at my managers request).

Would these conditions be OK for you?

Thank you again for your reply.

Ken At Popehat

4:28 PM (4 minutes ago)

to aimee.w
Dear Aimee:

I am glad to hear that David is all right, and that he has not been, say, trampled. NOT TRAMPLED! I just mean, uh, inconvenienced.

I am thrilled that you will customize my article! I feel that now brand status will be maintained not just internationally, but uniquely. You have no idea how worried bloggers are about their brand getting mixed up with other brands, like that time all those people from InfoWars got here by mistake and started screaming that I was the Whore of Babylon and that their anti-chemtrail-wristbands would protect them from my discussions of defamation jurisprudence. That was brand HUMILIATION, Aimee, and I'd like to avoid it if I can do so legally and consistent with my medical regimen.

So! Let's maintain the Popehat brand, internationally, even in countries that sound like hipsters, like Chad.

Here's what I would like included in the article: the grave physical and psycho-sexual hazards posed to brands by the Grave Pony Menace in the form of the Pony State of America and Canada (PSAC, pronounced "sack," as in ball- or gunny-). We can pretend to ignore it, Aimee, if we live in a Green Zone, like Chicago or Duluth or the Vice President's residence (the Vice President finds ponies distracting). But other places can't ignore it. The ponies — they come. They come. How can something so moderate-sized and fluffy be so inexorable? They come, and they stomp, and trample, and bite, and rear up in a showy and disconcerting way, and they stare into our eyes. When you stare into the pony, Aimee, the pony stares into you, particularly if it has ripped your midsection open with it's snake-quick sharp teeth.

How can we brand, given the threat of ponies? We can work to develop a brand — legal commentary, apocalyptic fantasy, trolling MRAs, art — what what good is the brand when the ponies show up? Lickety-split our customers go from saying "Popehat is where I go for trenchant free speech commentary" to "Popehat is where I went and saw a pony rip out a man's femoral artery and he seemed to do jazzhands as he bled out but that was probably just frightened flailing and they made Clark clean up but the place still smells ominously coppery." That's no brand. How do you pitch that? Hipster or not that will not test well in Chad.

So: in summation, please have your high editors create a piece that explains how Popehat can remain about legally sophisticated and informative snark, INTERNATIONALLY, and not about glistering piles of viscera left carelessly behind by things with names like Shasta and Clip-Clop and Prettypretty. HELP US DEFEND OUR BRAND.

I would be happy, per your request, to mention Specialist Authors. I hope that your Specialist Author who specializes in pony-violence has a name evoking probity, wisdom, and defiance.

I remain, very truly yours,

Ken White
www.popehat.com

P.S. The backlink is fine, but it can only contain a p and an n, not a p and an n AND an o or y.

With Apologies To Baron Macaulay

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XXVII

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?

XXVIII

"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.

XXIX

"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.

Gamer Gate: Three Stages to Obit

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A lot of things been written about Gamer Gate. Some of them wrong, some of them stupid, some of them both.

A lot of the confusion (both accidental and malicious) is because Gamer Gate is three separate things clustered together under one name.

The Three Stages of Gamer Gate

Gamer Gate began in a relationship spat. Person X was dating person Y. At some point person X realized that person Y had engaged in a pattern of cheating and lying, and person X blogged about the dirt.

This relationship drama was the first stage of the GamerGate, and as a he-said-she-said tale, it's of interest only to the two people involved, and their friends.

The blog post, though, went beyond "she told me she loved me and then she showed she didn't", and alleged that the unfaithful partner had slept with powerful media figures in the small world of computer games journalism…figures who either reviewed games coded by the unfaithful partner, or managed writers who did review the games. The alleged behavior is (at best) a breach of common sense, and (at worst) a major breach of journalistic ethics.

This gamer journalism drama was the second stage of GamerGate, and as a sex-for-positive press coverage scandal (unproven, in my mind), or just as a "jeez, gamer journalism is as corruptly orchestrated as mainstream media is under Ezra Klein's Journolist" scandal, it's of interest to the tens of thousands of people who read and write game review journalism… which doesn't include me.

This is where things got wacky. And by "wacky", I mean "exploded like a barbecue grill when liquid oxygen is poured on it."
(more…)

Fear Cuts Deeper Than Swords: Bergen Community College Freaks Out Over "Game of Thrones" T-Shirt

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Tragedy is inevitable. Our reaction to tragedy is not. We cannot govern every risk, but we must govern our reactions to risks. Here's the question we must ask ourselves: when awful things happen in the world, will we abandon reason and accept any measure urged by officials — petty and great — who invoke those awful things as justifications for action? Or will we think critically and demand that our leaders do so as well? Will we subject cries of "crime" and "drugs" and "terrorism" and "school shootings" to scrutiny? Will we be convinced to turn on each other in an irrational frenzy of suspicion, "for the children?"

If we don't maintain our critical thinking, we wind up with a nation run more and more like Bergen Community College in New Jersey, where we may be questioned and sent for reeducation for posting a picture of our daughter in a popular t-shirt on Google+.

Naturally the FIRE has the story, sourced from Inside Higher Education.

Francis Schmidt is a popular professor of design and animation at Bergen. Schmidt posted to Google+ a cute picture of his young daughter wearing a Game of Thrones t-shirt in a yoga pose next to a cat. The t-shirt was this one, bearing the phrase "I will take what is mine with fire and blood," a quote from Daenerys Targaryen, a fictional character in a series of fantasy novels (which has sold tens of millions of copies) turned into a hot TV series on HBO (with close to 15 million viewers per episode.) Googling the phrase will instantly provide a context to anyone unfamiliar with the series.

So: a professor posts a cute picture of his kid in a t-shirt with a saying from a much-talked-about tv show. In the America we'd like to believe in, nothing happens. But in the America we've allowed to creep up on us, this happens:

But one contact — a dean — who was notified automatically via Google that the picture had been posted apparently took it as a threat. In an email, Jim Miller, the college’s executive director for human resources, told Schmidt to meet with him and two other administrators immediately in light of the “threatening email.”

Although it was winter break, Schmidt said he met with the administrators, including a security official, in one of their offices and was questioned repeatedly about the picture’s meaning and the popularity of “Game of Thrones.”

Schmidt said Miller asked him to use Google to verify the phrase, which he did, showing approximately 4 million hits. The professor said he asked why the photo had set off such a reaction, and that the security official said that “fire” could be a kind of proxy for “AK-47s.”

Despite Schmidt’s explanation, he was notified via email later in the week that he was being placed on leave without pay, effectively immediately, and that he would have to be cleared by a psychiatrist before he returned to campus. Schmidt said he was diagnosed with depression in 2007 but was easily cleared for this review, although even the brief time away from campus set back his students, especially those on independent study.

So. That happened.

Pressed for an explanation of this lunacy, Bergen Community College Kaye Walter retreated into the first refuge of a modern authoritarianism, "think of the children":

Walter said she did not believe that the college had acted unfairly, especially considering that there were three school shootings nationwide in January, prior to Schmidt’s post. The suspects in all three shootings were minors targeting their local schools (although three additional shootings at colleges or universities happened later in the month).

This — this — is the core demand of the modern Fear State. Tell us what to fear, leaders, for the night is dark and full of terrors. Tell us what we have to do. Tell us what to think, and how to assess risks. Tell us "if you see something, say something" so we may feel duty-bound to vent our fears and insecurities about our fellow citizens rather than exercising judgment or compassion or proportion. Assure us that you must exercise your growing powers for our own safety, to ward off the terrible things we worry about.

Is Bergen some sort of unlikely citadel of irrationality? At first glance it may seem so. After all no well person would interpret the t-shirt as a threat and report it. That takes irrationality or dysfunction. No minimally competent or intelligent or honest school administrator would pursue such a report upon receiving it; rather, anyone exercising anything like rational discretion would Google the thing and immediately identify it as a mundane artifact of popular culture. No honest or near-normal intellect would say, as Jim Miller did, that the "fire" in the slogan might refer to an AK-47, a profoundly idiotic statement that resembles arguing that "May the Force Be With You" is a threat of force. Nobody with self-respect or minimal ability would claim that this professor's treatment was somehow justified by school shootings.

But Bergen isn't an anomaly. It's not a collection of dullards and subnormals — though Jim Miller and Kaye Walker could lead to think that it is. Bergen is the emerging norm. Bergen represents what we, the people, have been convinced to accept. Bergen is unremarkable in a world where we've accepted "if you see something, say something" as an excuse to emote like toddlers, and where we're lectured that we should be thankful that our neighbors are so eager to inform on us. Bergen is mundane in a world where we put kids in jail to be brutalized over obvious bad jokes on social media. Bergen exists in a world where officials use concepts like "cyberbullying" to police and retaliate against satire and criticism. Bergen exists in a world where we have allowed fears — fear of terrorism, fear of drugs, fear of crime, fear for our children — to become so powerful that merely invoking them is a key that unlocks any right. Bergen exists in a country where our leaders realize how powerful those fears are, and therefore relentlessly stretch them further and further, so we get things like the already-Orwellian Department of Homeland Security policing DVD piracy.

Certainly the Miller-Walter mindset is not unique in American academia. We've seen a professor's historical allusion cynically repackaged as a threat. We've seen a community college invoke 9/11 and Virginia Tech and Columbine to ban protest signs. In pop-culture debacle much like this one, we've seen a college tear down a "Firefly" poster as a threat. We've seen satire and criticism punished as "actionable harassment" or ""intimidation."

As a nation, we all need to decide whether we will surrender our critical thinking in response to buzzwords like "terrorism" and "drugs" and "crime" and "school shootings." On a local level, we must decide whether we will put up with such idiocy from our educational institutions. So tell me, students and teachers and alumni of Bergen Community College. Are you going to put up with that? Because institutions that act like this are not helping young people to be productive and independent adults. They are teaching fear, ignorance, and subservience.

If you feel strongly about it, you could tell Bergen Community College on its Twitter Account or Facebook page.

Update: Bergen made a statement doubling down:

"The referenced incident refers to a private personnel matter at Bergen Community College. Since January 1, 2014, 34 incidents of school shootings have occurred in the United States. In following its safety and security procedures, the college investigates all situations where a member of its community – students, faculty, staff or local residents – expresses a safety or security concern."

There are at least two maddening components to this. First, they didn't just "investigate" — they suspended the professor and made him see a psychiatrist because he posted a picture of his daughter in a wildly popular t-shirt from pop culture. Second, the statement is an implicit admission that the college refuses to exercise critical thinking about the complaints it receives. There is no minimally rational connection between school shootings — or any type of violence — and a picture of someone's kid in a pop-culture t-shirt. The college is saying, in effect, "complain to us about your angers or fears, however utterly irrational, and we will act precipitously on them, because OMG 9/11 COLUMBINE TEH CHILDREN." Shameful. Ask yourself: what kind of education do you think your children will get from people who think like this?

An Election is Simply a Festival for the Majority!

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I speak now to the minority:

I apologize for not posting more. I've had many interesting ideas swirling around my head, each of them the potential kernel of a good blog post.

…but I've strangely lost the urge, energy, or whatever to turn ideas into bytes-on-the-page.

I still hope to sit my ass down and generate some content at some point, but until then, feel free to watch this video of me before I was expelled from Japan and emigrated to America. My opinions have changed not a whit.

Colorado State University-Pueblo Vigilant Against Metaphor, Allusion, Unpleasant Historical References

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Recently Colorado State University-Pueblo took strong and immediate action to contain what it suggested was a possible violent threat to campus. President Lesley Di Mare explained:

"Considering the lessons we’ve all learned from Columbine, Virginia Tech, and more recently Arapahoe High School, I can only say that the security of our students, faculty, and staff are our top priority," Di Mare said. "CSU-Pueblo is facing some budget challenges right now, which has sparked impassioned criticism and debate across our campus community. That’s entirely appropriate, and everyone on campus – no matter how you feel about the challenges at hand – should be able to engage in that activity in an environment that is free of intimidation, harassment, and threats. CSU-Pueblo has a wonderful and vibrant community, and the university has a bright future. I’m confident that we can solve our challenges with respectful debate and creative problem-solving so that we can focus on building that future together."

My God! Columbine? Virginia Tech? Arapahoe High School? What happened? Did somebody send a death threat? Did an angry student bring a gun to school? Were there rumors of a massacre?

No. A professor criticized staffing cuts and rhetorically compared them to historical abuses of power.

(more…)

Quasi-Literate Racist Asshole Jim DeBerry of Definitive Television Threatens To Sue Above The Law For Calling His Video Racist

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If you want to be a quasi-literate racist asshole, go right ahead. It's a free country. There are lots of quasi-literate racist assholes around and it's unlikely you will distinguish yourself. I trust the marketplace of ideas to assign appropriate social consequences to you and your business. I may or may not help distribute those social consequences depending on the degree to which you irritate me.

But when you start threatening to sue people for pointing out that you're a racist asshole, I feel that you are going out of your way to antagonize me. I feel that it's time to put on my cockroach-stomping boots.

You might have seen the coverage at Lowering the Bar or FindLaw or numerous other sites of a breathtakingly racist caricature in a purported law firm advertisement produced by a company called Definitive Television, the vehicle of one Jim DeBerry of DeBar Holdings Ltd. The advertisement features a man dressed up in an Asian-caricature costume using an Asian-caricature voice to recommend a law firm called McCutcheon & Hamner, PC in Alabama. The caricature is a character Definitive TV offers to its clients. Definitive TV is a little defensive about it right out of the gate:

IF YOU ARE ON A SENSITIVE WITCH HUNT OUR SUGGESTION IS TO FOCUS YOUR ATTENTION TO MURDERERS, DRUG DEALERS, CHILD MOLESTERS THAT LIVE NEAR BY YOU.

So touchy!

When Joe Patrice at Above the Law reported on this, two things happened. First, the law firm of McCutcheon & Hamner PC claimed that it had been "hacked" and that it did not approve the commercial. That may or may not be true. Second, Jim DeBerry wrote Above the Law and threatened to sue for suggesting that the advertisement is racist.

The threat is a masterful example of sub-literate drivel from a self-important tool who thinks he's learned law from ten minutes on Google, seven of which were spent looking at lolcats. There's the moronic "it's not racist under this dictionary definition I chose" rhetoric:

We object to the statements of racism, as we do not fit under the legal definition, which is, The belief that race accounts for differences in human character or ability that a particular race is superior to others. 2. Discrimination or prejudice based on race.

There's the bizarre use of commas, odd diction, and weird capitalization that suggest that Jim DeBerry just took a break from sending 419 scam emails:

Furthermore, upon your interview request, we have read MR. JOSEPH PATRICE article/blog

YOU MAY FIND IT ODD THAT I EMAIL YOU BUT I HAVE A BUSINESS PROPOSITION FOR YOU MR. JOSEPH PATRICE. I AM THE QUEEN OF ROMANIA.

Finally, there's the barely-coherent jibber-jabber threat:

We firmly believe MR. JOSEPH PATRICE statements of racism when done with intentional malice and to damage our name for gain of revenue and promotion on his article through your business. Mr. Patrice is not stupid or ignorant, by lacking intelligence or common sense. By all appearances, He is educated and he fully understood the reckless racist statement claims with intentional malice he chose to type and for yourself to distribute when he submitted for article creation in which you accepted. We are currently consulting with another party regarding how we should pursue action against the libel statements made by Mr. Patrice, through your company, and others.

I will accept a retraction and apology related to the racist claims made by MR. JOSEPH PATRICE published by your company.

Let's be clear: Jim DeBerry's legal threat is complete bullshit and shows that he's pig-ignorant in addition to a racist. When Above the Law or any other blog or individual looks at DeBery's douchey video and calls it racist, that's a classic statement of opinion absolutely protected by the First Amendment. Above the Law didn't claim that DeBerry's company produced a racist video based on a secret review of some undisclosed videotape. If that had been the case, DeBerry might argue that Above the Law was implying false undisclosed facts. Instead, Above the Law and other commentators are offering opinions based on a specific disclosed fact — the video. You might not share the opinion that the video is racist, or that it reflects racist attitudes by the people who produced it. That's your prerogative. But calling the video racist — and calling the classless untalented hacks who shat it out racists — is classic opinion. As I have explained before, such an opinion is protected by the First Amendment:

This is not a case of opinion premised on false unstated facts, as if someone said "based on what I overheard Donna Barstow say, she is a racist." Rather it's pure opinion based on disclosed facts — the very cartoons she complains they posted. (Note that this strengthens the fair use argument.) Partington v. Bugliosi, 56 F.3d 1147, 1156–1157 (9th Cir.1995) ("when an author outlines the facts available to him, thus making it clear that the challenged statements represent his own interpretation of those facts and leaving the reader free to draw his own conclusions, those statements are generally protected by the First Amendment.") Such accusations of racism are routinely protected as opinion by the courts. See, for instance, Rambo v. Cohen, 587 N.E.2d 140, 149 (Ind.Ct.App.1992) (statement that plaintiff was “anti-Semitic” was protected opinion); Stevens v. Tillman, 855 F.2d 394, 402 (7th Cir.1988) (Illinois law) (accusations of “racism”); Smith v. Sch. Dist. of Phila., 112 F.Supp.2d 417, 429–30 (E.D.Pa.2000) (granting judgment on the pleadings after concluding that the accusation of racism was an opinion); Martin v. Brock, No. 07C3154, 2007 WL 2122184, at *3 (N.D.Ill. July 19, 2007) (accusation of racism is nonactionable opinion in Illinois); Lennon v. Cuyahoga Cnty. Juvenile Ct., No. 86651, 2006 WL 1428920, at * 6 (Ohio Ct.App. May 25, 2006) (concluding that in the specific context of the accusation, calling a co-worker racist was nonactionable opinion); Puccia v. Edwards, No. 98–00065, 1999 WL 513895, at *3–4 (Mass.Super.Ct. Apr. 28, 1999) (concluding accusations of racism are nonactionable opinion); Covino v. Hagemann, 165 Misc.2d 465, 627 N.Y.S.2d 894, 895–96 (N.Y.Sup.Ct.1995) (concluding statement that plaintiff had “racially sensitive attitude” is not actionable). By contrast, cases finding that accusations of racism were actionable defamation usually involved implication of false facts. See, for instance, Overhill Farms v. Lopez, 190 Cal.App.4th 1248 (2010) (accusation that business fired workers for racial reasons was a statement of fact distinguishable from a mere opinion that farm owners were racist). And those are just the cases I found in about five minutes whilst distracted by yelling at an associate.

Similarly, if I said "I've reviewed his personal papers and Jim DeBerry is illiterate," that might be defamatory, because I'm implying potentially false facts. But that's not what I'm saying. I'm saying that Jim DeBerry's idiotic legal threat, which I've linked, shows that he's less literate than the average penis-enlargement spammer — in addition to being a racist douchebag. That's opinion based on disclosed facts and therefore absolutely protected.

Before closing comments on the YouTube video, someone (consider the diction and grammar, and guess who) from Definitive TV wrote this:

We are respect your 1st amendment right and your freedom of opinion and speech on our comment board and will approve your comments. Due to the overwhelming feedback (50% positive and 50% negative) and at the request of McCutheon & Hamner at Law we have elected to disable the comment thread. We may open the comment section back up soon when we can reply.

Of course, this is wrong. YouTube is private and Definitive TV is private and nobody has a First Amendment right to post comments there if YouTube and Definitive TV don't want them to. But Definitive TV's mention of the First Amendment here is more than a little erratic, given their bogus legal threat to Above the Law. Maybe being a racist douchebag all the time is mentally taxing.

So: don't let the stupid threats of the Jim DeBerrys of the world chill you. Instead, call them out.

And I propose, to commemorate Mr. DeBerry's idiocy forever, that we make "We are respect your 1st amendment right!" a catchphrase for dealing with such censorious thugs.

Bless Her Heart, Cartoonist Donna Barstow Complains To Google About Popehat

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Remember Donna Barstow? She's the cartoonist with a history of bogus legal threats who got into an ill-considered internet fight with the forum goons of Something Awful when they posted some her cartoons in a thread that criticizes awful cartooning. I wrote about her in July 2012, which resulted in a truly surreal phone call from her. I also wrote about her odd follow-up rant in which she suggested that copyright is a federal crime. Apparently she actually meant that copyright violation is a federal crime. I think.

Anyway, this morning (that is, nearly 17 months after I wrote about her) I got an email from Google indicating that she had complained that my post contained private information:

Hi,

We're writing from Google.com to bring the following page to your attention:

http://www.popehat.com/2012/07/06/cartoonist-donna-barstow-engages-in-modern-online-version-of-hey-guys-watch-this/

A Whois search indicated that you're the host for this page.

A concerned user contacted us to report that handwritten signature is published on this page. We hope that you'll assist this individual in restricting access to this private information by removing the page from the web. If it's changed to return a true 404 error via the http headers, please let us know and we'll also remove the listing from the Google index.

We appreciate your assistance. Should you have any questions, please don't hesitate to contact us.

Regards,
The Google Team

On 11/18/13 15:54:25 [email protected] wrote:
your_name: D. Barstow
email: [email protected]
webmaster_info_live: agree
number_url:
http://www.popehat.com/2012/07/06/cartoonist-donna-barstow-engages-in-modern-online-version-of-hey-guys-watch-this/
results_url_ssn:
https://www.google.com/search?q=donna+barstow&ie=utf-8&oe=utf-8&aq=t&rls=org.mozilla:en-US:official&client=firefox-a&channel=fflb
webmaster_info_contacted: agree
webmaster_info_whois:
http://www.networksolutions.com/whois/results.jsp?domain=popehat.com
hidden_subject_signature: Your personal information removal request for a
handwritten signature

As far as I can tell, Ms. Barstow has used a Google tool asking Google to remove my post about her from Google's search results. Her premise is that I published "private information" about her — to wit, her "handwritten signature."

There's only one place Ms. Barstow's signature appears in my post about her — it's in her cartoon about Mexico, which I put in the post to comment upon it, criticize it, and report on ongoing allegations that some of her cartoons are racist or otherwise obnoxious. It's the signature that she displays to the world in all of the cartoons she publishes. It's "private" in the sense that you can't see it unless you look at one of her cartoons on her web site or published elsewhere by her.

I've written back to Google. I presume they won't fall for what I can only characterize as a dishonest — and even fraudulent — attempt to de-list criticism.

Seriously?

I've written Ms. Barstow seeking comment. I'll update this post if I get a reply.

New From KlearGear: Free Speech, Only $3,500 Plus Shipping And Handling

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By popular demand — which is a polite way of saying yes, I heard about this, for the love of God stop sending me emails about it — it's time to talk about KlearGear, an online company that sells "desk toys" and gadgets and tchotchkes and such. Tim Cushing at Techdirt has the story.

KlearGear is not having a good week in the social media. That's because KlearGear attempted to enforce a jaw-droppingly repulsive and unethical fine-print-condition-of-sale to retaliate against a customer who complained about bad service.

The customer is Jen Palmer. She and her husband bought some bauble from KlearGear. It never came. They tried to reach customer service, and never could. So they left a negative comment about KlearGear on a gripe site. Three years later, KlearGear threatened them, saying they had violated a non-disparagement clause buried in those terms of use you never read before clicking "yes" when buying something online or using a website:

Non-Disparagement Clause

In an effort to ensure fair and honest public feedback, and to prevent the publishing of libelous content in any form, your acceptance of this sales contract prohibits you from taking any action that negatively impacts KlearGear.com, its reputation, products, services, management or employees.

Should you violate this clause, as determined by KlearGear.com in its sole discretion, you will be provided a seventy-two (72) hour opportunity to retract the content in question. If the content remains, in whole or in part, you will immediately be billed $3,500.00 USD for legal fees and court costs until such complete costs are determined in litigation. Should these charges remain unpaid for 30 calendar days from the billing date, your unpaid invoice will be forwarded to our third party collection firm and will be reported to consumer credit reporting agencies until paid.

The link to that language is from a web archive, because KlearGear has now sent it to the memory hole upon public scrutiny. Tim Cushing at Techdirt points out that, according to the Internet Archive, the clause didn't even exist when Jen Palmer clicked "yes" and bought her bauble from KlearGear. That suggests that KlearGear made a demand for money to Jen Palmer based on a contract she never signed. There's a word for that: fraud.

Could Jen Palmer defend a lawsuit on the basis that KlearGear can't prove that she agreed to the non-disparagement clause, because it wasn't on the site when she clicked "yes"? Yes she could. Could she also defend a lawsuit based on a variety of doctrines and defenses available when companies attempt to enforce bizarre hidden clauses in form contracts — sometimes called "contracts of adhesion" — against consumers? Yes. But a lawsuit isn't at the heart of KlearGear's despicable tactic. Ruining the credit of its critics is:

The clause goes on to say if a consumer violates the contract they will have 72 hours to remove your post or face a $3500 fine. If that fine is not paid, the delinquency will be reported to the nation's credit bureaus.

Once again — if KlearGear asserts falsely that someone accepted a contractual term, and asserts a debt based on that false statement, and reports that debt to credit agencies, that's fraud. It's not just a civil wrong, it's a crime.

I tried to get a comment from KlearGear. I tweeted their Twitter account. I left a message on their Facebook page. I repeatedly called "Rob Key," their "Media Relations" person, at the number they provided; it was constantly busy over two days. I called the main number on their website; the recording always says that a customer representative is unavailable on this time and to check the website. It's almost as if Jen Palmer's online criticism — that it's impossible to talk to a live person at KlearGear — is true.

KlearGear's non-disparagement clause is probably an effort to salvage a reputation hammed by bad results like an "F" grade from the Better Business Bureau in 2010, earned through shitty service.

Kleargear.com claims to offer products to "make your home and desk more fun with our desk toys, cool gadgets, stress relievers, games, cube decor, geek toys, and unique computer accessories." However, consumers across the country tell BBB that dealing with this company is anything but fun. BBB has issued an F rating to San Antonio-based Kleargear.com for failing to respond to consumer complaints. Click here to view the company’s current BBB Reliability Report™.

Consumer disputes received by BBB allege Kleargear.com does not deliver products purchased online in a timely manner and, in some cases, fails to deliver any product at all. Consumers further allege that attempts to contact the company go unanswered. In the past three years, 95 of the 123 disputes forwarded by BBB staff to Kleargear.com have gone unanswered, though some consumers later notified BBB they did eventually receive their products.

KlearGear's BBB rating has since improved. However, the Western Michigan Better Business Bureau reported in 2012 that KlearGear was falsely displaying a positive BBB rating on its web site:

As of November 28, 2012, the BBB became aware that the company's website is displaying a BBB Accredited Business logo and BBB Rating A+; however, the comapny is not a BBB accredited business and the BBB rating is not A+.

The BBB contacted the company regarding these issues and this matter is pending the company's response.

As of November 28, 2012, the BBB discovered that some pages of the company's website display the BBB Accredited Business Logo and state "BBB Rating A+", when neither is true.

The BBB contacted the company at the Michigan mail drop address instructing the company to immediately remove the incorrect BBB logo and reference from their site.

This matter is currently pending.

Companies, through the people who run them, can make errors of judgment. They can correct those errors, and consumers can make rational decisions that the company is again worthy of their business.

This is not such a situation.

KlearGear's non-disparagement clause is a contemptible, unethical, and un-American. I say that whether or not KlearGear is defrauding customers by citing the clause to customers who didn't even agree to it. You should not — you cannot — trust a company that hides in its small print a clause saying you can't criticize it for bad service. Only a dishonest and amoral company would insert such a clause into its terms of use. Only amoral and dishonest people, deserving of our contempt — owners, officers, employees, and company lawyers — would create and attempt to enforce such language.

KlearGear has begun to reap what it has sown. Techdirt, Simple Justice, Consumerist, and more sites have written about it. KlearGear deserves to fail as a business based on this conduct, and hopefully will. But that's not enough. Somebody needs to use public records to identify the owners and decision-makers behind KlearGear who countenanced this conduct, and any lawyers who participated in the threats to consumers. Their identity should be published, and they should suffer social consequences. Their communities, and their future potential employers or customers, should see them for what they are: scum.

Do you think KlearGear should suffer consequences for its actions? You can help by spreading the story.

Edited to add: In this life, you take your fun where you find it:

KlearGearFun

Glass Tongues Wag As "On Press" Returns, Tries Ineffectually To Censor Criticism By Abusing DMCA

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Back in February I talked about how "On Press Inc." was indulging in bumptious legal threats and jibber-jabber against people who quoted the "epic" "poetry" of "poet" "Sean Shane," including his "greatest" "work" "Tongues of Glass," which goes something like this:

if only
our tongues
were made
of glass

all of my
medication
would slide down
so easily

and i could use windex
to get rid of the
taste
of wax fruit
when i forget again
and try to eat it
because it's motherfucking deceptive
it looks like REAL fruit
if there is a "real"
there's a class action in that
seeking counsel

tap tap
is this thing on?
MOM DO WE HAVE MORE FANTA

Or something like that.

Tim Cushing at Techdirt also did great work reporting on the hilarious-to-the-point-of-a-little-sad flailing of whoever was controlling "On Press Inc." Then the whole matter faded into obscurity, drowned out by the hordes of other unstable censors that gibber and howl on the internet.

Until now.

TorrentFreak reports today that "On Press Inc." sent Google a demand under the Digital Millennium Copyright Act (or a DMCA Notice, as it is commonly called) seeking to . . . well, it's not entirely clear. On Press Inc. sent Google a list of 147 web pages it claims infringed the copyright in "Tongues of Glass." That list included Popehat, Techdirt, BoingBoing, SF Weekly, and even Huffington Post, where a blogger at HuffPost Science had quoted the poem because doing so blocks vaccinations from giving your kids cancer. Though some of the pages on the list might have violated copyright by copying the poem without criticism or comment, the quotations by those blogs was clearly protected as fair use, as part of a comment on On Press Inc.'s disturbed behavior.

But wait, Google doesn't even host most of those pages. Was On Press Inc. demanding that we few, we happy few, be REMOVED FROM THE GOOGLE IMMEDIATELY? That's TorrentFreak's interpretation — that On Press means to make a delisting demand — but it's not clear. (Edit: Mike Masnick of Techdirt thinks it's clear they are asking for de-listing under DMCA; I'm not sure they grasp the DMCA that well.) Google, of course, refused to take action with respect to the pages constituting fair use, addressing only a few that apparently were simple copies.

Whoever sent the DMCA made certain oaths:

SWORN STATEMENTS

I have a good faith belief that use of the copyrighted materials described above as allegedly infringing is not authorized by the copyright owner, its agent, or the law.
[checked]

The information in this notification is accurate, and I swear, under penalty of perjury, that I am the copyright owner or am authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.
[checked]

No minimally rational person could make those oaths honestly — even, I would argue, under the very narrow way that state has been interpreted.

It may be time to take action. The DMCA provides a cause of action against people who abuse it:

(f) Misrepresentations.— Any person who knowingly materially misrepresents under this section—

(1) that material or activity is infringing, or

(2) that material or activity was removed or disabled by mistake or misidentification,

shall be liable for any damages, including costs and attorneys’ fees, incurred by the alleged infringer, by any copyright owner or copyright owner’s authorized licensee, or by a service provider, who is injured by such misrepresentation, as the result of the service provider relying upon such misrepresentation in removing or disabling access to the material or activity claimed to be infringing, or in replacing the removed material or ceasing to disable access to it.

Application of this section is complex and beyond the scope of this post. However, if anyone targeted by On Press Inc.'s frivolous and bad-faith DMCAs believes they have been damaged, they could file suit against On Press Inc. That suit may provide a vehicle for discovery into the identity of the actual person or persons responsible for the censorious DMCAs. If anyone targeted by the DMCAs is interested, I am happy to help you look for an attorney who might be interested in taking the suit to vindicate the free speech and fair use issues presented. We shouldn't tolerate such abuse to the DMCA.

Moreover, as before, if On Press Inc. ever takes the next step and sues anyone, please contact me. We will light the Popehat Signal and find you counsel to cockroach-stomp them.

Edited to add: BoingBoing picks up the story.

Edited again: Tim Cushing does some strong investigative work. Who is "Mike Miche"?

What Is The Quantum of Proof Necessary for Police to Rape and Torture you in New Mexico?

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By now you've probably heard the story of David Eckert. He's the New Mexico man who was stopped by police, detained based on a suspicion he was hiding drugs in his rectum, and subjected to increasingly intrusive anal probing and eventually sedation and a colonoscopy. You might have read about him at Simple Justice or Defending People or BoingBoing or Techdirt or Reason or any of the other places that reported on the ghastly episode.

I waited to write about it until I could get a copy of the search warrant affidavit — helpfully provided by my friend Kevin Underhill of the absolutely essential legal blog Lowering the Bar — so that I could address this question: what quantum of proof is required in New Mexico for the police and compliant doctors to rape and torture a man?

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Alabama Blogger Roger Shuler Arrested For Violation of Unconstitutional Injunction

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There are a few things you should know about Roger Shuler, who blogs at "Legal Schnauzer."

First, Shuler is creepy and crazy. (I formed that opinion by reading his blog.)

Second, Shuler is a vexatious litigant, a serial pro se abuser of the court system.1 (I formed that opinion by researching records of his litigation history.)

Third, Shuler is currently in jail, arrested for contempt because he violated an unconstitutional preliminary injunction — a classic prior restraint — prohibiting him from defaming the son of a former Alabama governor.

Some people excuse or applaud the third thing because of the first and second things. They shouldn't. The First Amendment protects everyone — even creepy, crazy vexatious litigants. You should demand that the First Amendment protect people like that, because if it doesn't, it won't protect you when you need it.

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