The Supreme Court of the State of Washington has ruled that the state's strong anti-SLAPP statute is unconstitutional, violating the right to jury trial enshrined in Washington's state constitution.
Here's why, and what it means.
The Supreme Court of the State of Washington has ruled that the state's strong anti-SLAPP statute is unconstitutional, violating the right to jury trial enshrined in Washington's state constitution.
Here's why, and what it means.
Re: Fresh content for Popehat
My name is Gemma and I work primarily as a freelance writer, I'm writing to you because I thought you might be interested in a contributed article for popehat.com?
Previous to starting my career as a freelancer I worked for many years in business and finance. When I became a mother, I decided to turn to writing to make a living and now pen articles on as many different topics as I can – from news and current affairs through to pieces on money matters.
I'd love to know if you'd be interested in a piece from me. This would come to you free of charge, and all I'd ask in return is that I'd be allowed to mention a partner as a resource within the text. If you're interested in this I'd love to hear back from you with ideas for topics I could write on. Otherwise I leave you with my best wishes
Thank you for your correspondence?
We at Popehat might well be interested in an article. Specifically we'd be interested in an article about certain security issues. If you think that your background qualifies you to write about security issues — about certain threats to our children, that you and I as parents must consider to do our jobs — I can elaborate.
Of course it's fine to mention your partner. We at Popehat unreservedly support marriage equality and are in favor of normalizing all relationships by mentioning them in writing.
Ken at Popehat
I would certainly be interested in hearing your ideas and would be more than willing to put something together on what you suggest. Please do let me know what you had in mind
What I have in mind is nothing less than a comprehensive treatment of the greatest menace facing our race: ponies.
By race I mean the human race, of course. I'm not a racialist. Ponies are a threat to all ethnicities. Of course, some ethnicities are better able, because of circumstance, to repel the pony threat. Which ones is a matter of considerable debate. On the one hand white Americans enjoy superior wealth, agreeable climate, and the ability to be elected to our various legislatures without any apparent qualifications whatsoever. Arguably this makes us more equipped to deal with ponies through expensive security systems and various punitive zoning measures. Many whites would deny this truth; this phenomenon is known as Pony Privilege. But on the other hand, white Americans have become flabby, easily distracted, and generally unreliable with the sort of light antitank weapons that are most effective against closely-grouped clusters of ponies. I made my oldest child fire a LAW at a group of burros the other day — you know, for practice — and it knocked him right on his ass. What are they teaching our children in their physical education classes? The ponies aren't here to play dodgeball with us, Gemma.
I may have strayed somewhat from the point.
Yes. Back to your article. Listicles are very popular these days so to clickbait this motherfucker I'd like to see something along the lines of "The Ten Most Horrible Things That The Ponies Will Do To Your Children When That Day Comes. Number Seven Will Make You Soil Yourself And Curl Into A Stinking Ball." Then I'd like a series of ten cautionary tales, calculated to stir the complacent guts of America: Pilates classes disrupted. Facial hoofprints on children just before picture day. Great heaps of the dead making our electric vehicle charging stations almost inaccessible. HBO producers forced against their will to replace Peter Dinklage with a swaggering, abusive Shetland. Mere anarchy loosed upon the world. Blood-dimmed tides irretrievably staining my sustainable bamboo parquet meditation deck. And so on and so forth.
We need visuals that pop, Gemma, so if you and your partner could dress up as ponies, or people being hunted mercilessly by ponies past all hope and reason, that would be ideal.
I eagerly await your draft.
Very truly yours,
Ken at Popehat
A few states retain archaic statutes making some types of libel a crime. They're rarely used. They show up fairly regularly in stupid legal threats, and very occasionally in politically motivated harassment prosecutions.
Minnesota's statute criminalizes statements that "expose a person or a group, class or association to hatred, contempt, ridicule, degradation or disgrace in society, or injury to business or occupation." It offers a defense of justification for a few exceptions:
Violation of subdivision 2 is justified if:
(1) the defamatory matter is true and is communicated with good motives and for justifiable ends; or
(2) the communication is absolutely privileged; or
(3) the communication consists of fair comment made in good faith with respect to persons participating in matters of public concern; or
(4) the communication consists of a fair and true report or a fair summary of any judicial, legislative or other public or official proceedings; or
(5) the communication is between persons each having an interest or duty with respect to the subject matter of the communication and is made with intent to further such interest or duty.
Isanti County prosecuted Timothy Robert Turner for violation of this statute when he posted malicious ads on Craigslist in the name of his ex-girlfriend and her daughter soliciting strangers for sex. He added their cell phone numbers. Timothy Robert Turner is scum.
The Minnesota Court of Appeals agreed that Turner's actions were contemptible and defamatory. But they found that the statute violates the First Amendment. First, it doesn't recognize that truth is an absolute defense to defamation — under the statute, you could be criminally prosecuted for making a true statement without "good motives." Second, it criminally punishes false statements about public figures or matters of public concern without requiring the government to show that the statements were made with actual malice — the long-standing standard protecting such speech.
Notice that the loathsome Timothy Robert Turner's speech was unquestionably false, and wasn't uttered about public figures or matters of public concern. But the Court overturned the statute in his case and reversed his conviction anyway. Why? In First Amendment cases, when a statute is so defective that it prohibits a substantial amount of constitutionally protected speech, courts will allow a litigant to challenge the entire statute even if the particular litigant's speech could constitutionally be punished. That's sometimes called the overbreadth doctrine. Here, the state conceded that the statute was overbroad (and possibly even conceded that it's substantially overbroad — it's hard to tell). The state asked the court to employ a remedy in this situation — to construe the statute narrowly to make it constitutional, that is, to say "Minnesota can only use this statute in cases involving false statements, and only by proving actual malice in cases involving public figures or matters of public interest." Courts are supposed to do that when they reasonably can rather than strike down an entire statute. Here, the court not unreasonably found that they'd have to fundamentally rewrite the statute to save it, and refused to do so. The line between narrowly construing a statute to save it and "rewriting" a statute is not perfectly clear.
The bottom line: the Minnesota court recognized that an archaic criminal libel statute was invalid when it didn't include the free speech protections afforded modern civil defamation defendants.
Eugene Volokh submitted a clearly effective amicus brief. Timothy Robert Turner escapes conviction, but hopefully never gets a job or relationship again thanks to Google.
So you wrote a blog post that you thought was really good, but somehow everyone missed it. Or you just got a good column published. Or your kid won the Hunger Games. Or your dog learned to shake hands. Or you got your name in the newspaper for rescuing a squirrel. Or you're up to something you think is cool.
Tell us in this thread! I declare that the cultural norms against boasting do not apply herein, to the extent they ever apply on the internet.
Please note this is not a thread about recriminations from other threads or places.
The other day my friend Ken asked me (and the other Popehat contributors) for feedback on his idea of blogging about his depression. He specifically wondered if various folks on the net would attack him for it.
I'm not a personal friend of Vox's, but I am an acquaintance (I have roughly as many political points of agreement with Vox as I do with Ken, so we run in the same circles, even if I'm not a card carrying member of the "Dread Ilk"), and I thought the idea that Vox would attack Ken for the post was a bit far fetched – I thought Vox wouldn't stoop to that level.
So I responded:
As someone who wrestled the black dog for a decade or more (thankfully, tho, not in the last 15 years or so), I'm a huge fan of your posts on this topic.
The cost of writing is centralized (your effort, your potential embarrassment (not that I think there's anything remotely embarrassing about it)) , and the benefit is widespread. Which is to say, in pure market terms, it's "not worth it" for you to write on the topic.
…but it makes the world a better place.
Re Vox: he's not a friend of mine, but he is an acquaintance. If he says shit, I'll rain hell-fire on him.
And then, after Ken put up his great post, I tweeted
1/ I really really REALLY hate it when someone opens up and a thousand people say "Oh, so brave!". …bc it's usually not remotely brave.
— ClarkHat (@ClarkHat) May 21, 2015
— ClarkHat (@ClarkHat) May 21, 2015
and I stand by that.
And now it turns out that Vox has – exactly as some expected, and exactly contrary to my own predictions – attacked Ken for the contents of his post.
I told Ken I'd rain hell-fire on Vox, but now that it comes down to it, I realize that I'm not angry – I'm sad. I'm not sad for Ken's sake – Ken is a big boy and can take a bit of name calling on the net. I'm sad because I thought Vox was made of better stuff.
Actually, I still do. Vox is a performance artist par excellence, but he's also a crisp thinker, and usually not a name-caller. He understands that the effect of deflating someone's argument through logic and facts is a thousand times better than calling them names.
…which isn't to say that Vox doesn't call names. He does. He often does it in a cutesy way where what he says is – technically – not name-calling. "I was just stating a fact – the guy is short, given the median height of Canadians, which is 5' 9.8" according to a UNESCO survey I'm linking to."
Vox does this, I think, because years of playing war games and fighting MMA has taught him a fair bit about tactics, and he realizes that these feints lead his opponents to – well, I could invoke some phrases from Clausewitz or Jomini, but, in the parlance of our times, "lose their shit" is appropriate and isn't overstating it – and then he can step back and point, shrug, and say "see what I mean?"
This may be good tactics, but I'm not in love with it, and – as someone who's got a decent measure of respect for Vox – I wish he wouldn't do it.
So, anyway, I'd like to explain why I respect Ken, why I respect Vox, and why I think that the politics of personal attack are uncool, and why I wish both my friend and my e-acquaintance wouldn't do it.
I'm proud to call Ken a friend, and I only hope that I've earned enough of his respect so that he chooses to use the same word for me.
I've met a lot of impressive people in my time on the planet, and Ken is near the very top of the list. He's whip-smart, he's compassionate, he almost always sides with the underdog, he started out as a federal prosecutor but had the strength of character admit that maybe the other side had the better ethical argument, he built a law firm from scratch, he's a great family man – basically, I haven't come across an area where Ken is not devs above the mean.
– and, on a personal note, when I was deep deep in the shit once years ago, he answered the proverbial 3am phone call and saved my ass (full details some other time, but, if you think "subpoenas, a briefcase full of money, and expert advice on how much lime to use to dissolve a body", you're off in the right direction).
You can't buy loyalty like that, and if you could, you couldn't afford it.
And even I, who sing Ken's praises, was a bit surprised by his blog post the other day. Not surprised, overly, at the contents, but surprised at the balls he had to publish it, knowing that people would use it against him.
There's the old saw that bravery isn't the absence of fear: bravery is being afraid and doing the right thing anyway.
Ken's posts on depression help people – the most vulnerable and despised people out there: the sad sacks, the "slackers", the people who "just need to buck up and start getting shit done".
As I said in my forum post, quoted above, when Ken does one of these posts, the benefit accrues to dozens or hundreds of nobodies, and the the costs all land on Ken's shoulders.
And Ken does it anyway.
I'd like to be half the man Ken is some day.
Popehat.com is a civil liberties blog, and because Ken is fashionably, but discretely, left of center, the entire tone of the blog and of the readership averages left of center.
So, when I say "I've got a lot of respect for Vox Day", I expect to be met with hisses and boos.
Well fuck that shit: listen up, people.
Vox, like Ken, is a thoroughly impressive person. Back when most of us were farting around in college, Vox managed to bootstrap a band that cranked out some top-40 hits (amusing note: I actually picked up one of his band's CDs used about 20 years ago, a decade before I ever encountered the modern incarnation of Vox). Aside from music, Vox is also a very good fiction writer, putting many of his more respectable peers to shame. His organizational skills are fantastic, and he's bootstrapped not just his own online brand and followers, but mobilized them in a culture war against the SJWs for the control of the Hugo (a large blog post on this topic is half written, by the way). He's launched a science fiction publishing company seeming in his spare time, he's edited books, he's recruited top authors, and more. …and all of this in his spare time between doing game design, raising a family, and playing in a soccer league.
You can say that Vox's political opinions are terribly wrong. You can say that Vox is mean. You can say that he's cruel.
…but anyone who says that Vox is stupid, illogical, or lazy is just revealing themselves as either ignorant (the best case) or dishonest (the worst case).
If anyone hear thinks that Vox is dumb, I encourage you to hold your nose, read his blog for a week, and actually think about his arguments. You might think his axioms are wrong, but if you're honest with yourself, you won't think that his logic is flawed.
I'm not exactly sure when the Ken and Vox started going at it, but my hunch is that Ken started it. I know that at least a few years ago Ken said something along the lines of "Vox looks like he gets his haircuts at the same place he got his lobotomy".
I really wish that when Ken wanted to attack someone's ideas, he just attacked their ideas, instead of making fun of them personally. But, as a wise man once said
@ClarkHat "Fucking fish, always swimming!"
— Popehat (@Popehat) May 23, 2015
Maybe that was the first slap in the fight. Maybe it was the 400th. But, yeah, my money is that Ken started this. And then Vox responded in kind.
But maybe I'm wrong. Maybe Vox started it, and Ken responded in kind.
Anyway: I respect both of these guys, and I wish they wouldn't be dicks.
I'm going to respond to Vox's post, because it's handy.
First, I think that Vox is honest when he says:
Now, I don't wish disease of any kind on anyone. I never have and never will. I would very much like for everyone, even those who most hate me, to be healthy, happy, and well.
…but this is part of Vox's standard style, where all of the words of his posts are calm and unobjectionable, so when they're quote later they look like the most innocent things…but the overall gestalt is carefully engineered to provoke at an emotional level.
I admit that I've used exactly the same technique in my time. It's effective, it's clever – and on my better days, I think it's a bad thing. So, yes, I think Vox is telling the truth when he says this…but when this is sandwiched into a post that starts with the subject line "What part of 'cruelty artist' don't you understand?" and ends with the advice for Ken to get off the internet because, presumable, Ken is too fragile and delicate to handle the manly give-and-take of no-holds-barred intellectual action…well, I don't think one is really going out on a limb when one declares the whole bit of performance art a carefully designed bit of cruelty.
What is Vox trying to achieve with this post? What do we monkeys ever try to achieve in our social machinations? We intend to increase the status of ourselves and our teams, and we intend to mock, ridicule, and degrade the status of the opposing team.
So when Vox writes
When I read Ken's post about his breakdown and his struggles, my overwhelming impression was sheer bewilderment. He might as well have written it in Chinese for all that I related to it.
he's saying, translated into monkey code: "Sad pink Ken SJW team: girly, weak and uncool. Awesome blue Vox PUA team: benchpress, squat, awesome awesome hoo-ah!"
Well, I call bullshit.
Vox is pretty awesome (sorry, SJWs) in a bunch of ways.
…and Ken is pretty awesome in at least as many.
So I'm not buying into Vox's narrative. It takes a certain kind of moral strength to fight when outnumbered, when scorned by the establishment, when mocked by all the cool people (hat tip to Vox). But it takes a different and at least equally good kind of moral strength to voluntarily expose personal weakness, for no better reason than because the act of exposure helps others (hat tip to Ken).
And you know what? Ken isn't lacking in the first kind of bravery either. Look at him wade into the Vox's lion den.
All men are mortal. Socrates is a man.
– wait –
What I meant to say is: All human are sinners. I'm a human. Therefore I'm a sinner.
I've gotten catty on the internet. I've name called. I've mocked people for their personal traits instead of engaging with their arguments.
I think this is a crappy way to behave, and at least every now and then I promise myself I'll do better in the future.
Ken and Vox also get catty and engage in name-calling.
I wish they wouldn't.
I'm not going to call on either of them to apologize. Not only because I don't know who started the spat, but because "calls for apology" are a bullshit SJW tactic: they're a power play, implicitly promising absolution and forgiveness and return to the fold in return for ritual humiliation.
Neither Ken nor Vox need absolution from me, because they haven't sinned against me.
…and neither needs to, nor should, apologize to each other, because given our current caustic culture war, apologies are just status lowering struggle-session rituals.
Here's what I do suggest, not just for Ken and Vox, but for all of us:
That we examine our behaviors with regard to name calling, and that we examine our motivations.
For those of us who identify as Christian, I further suggest that we reflect on the definition of cruelty – "pleasure in causing pain and suffering".
I suggest that it is entirely reasonable for a Christian to engage in rigorous ideological warfare, even if this accidentally causes butt-hurt and bruises when pretty lies are destroyed.
…but it is not, I suggest, What Jesus Would Do, to take active delight in causing pain or suffering.
In my ideal world, ideological antagonists would fight bitterly with each other, but they would do so virtuously:
Prudence (φρόνησις, phronēsis): also described as wisdom, the ability to judge between actions with regard to appropriate actions at a given time.
Justice (δικαιοσύνη, dikaiosynē): also considered as fairness, the most extensive and most important virtue.
Temperance (σωφροσύνη, sōphrosynē): also known as restraint, the practice of self-control, abstention, and moderation tempering the appetition.
Courage (ἀνδρεία, andreia): also named fortitude, forbearance, strength, endurance, and the ability to confront fear, uncertainty, and intimidation.
This is my modest proposal.
The first thing you need to know about secure psychiatric facilities is that their bathrooms smell strongly of pee.
That may not seem remarkable to you. Many bathrooms smell of pee. But the facility in which I was a guest this time last year was notably immaculate in every other way. A lot of time and attention went towards making it clean and welcoming. Yet the private bathrooms — one to a two-person dorm room, no lock — always smelled of pee. That's because there's an elaborate metal cage built around the workings of the toilet, like one of those Hannibal Lecter masks. This makes the toilets very difficult to clean. Hence, the constant smell of pee.
The people who run the facility protect the toilets like that so that you won't disassemble them and use the pieces to hurt yourself. My wife would tell them that this concern dramatically overestimates my home improvement skills, but I guess they want to be careful. It seems to me that if you take the time and effort to disassemble a toilet with your bare hands, you're committed enough to be allowed to do to yourself as you see fit. To date my view has not prevailed in the psychiatric community.
It's easy to spot overt calls for censorship from the commentariat. Those have become more common in the wake of both tumultuous events (like the violence questionably attributed to the "Innocence of Muslims" video, or Pamela Geller's "Draw Muhammad" contest) and mundane ones (like fraternity brothers recorded indulging in racist chants).
But it's harder to detect the subtle pro-censorship assumptions and rhetorical devices that permeate media coverage of free speech controversies. In discussing our First Amendment rights, the media routinely begs the question — it adopts stock phrases and concepts that presume that censorship is desirable or constitutional, and then tries to pass the result off as neutral analysis. This promotes civic ignorance and empowers deliberate censors.
Fortunately, this ain't rocket science. Americans can train themselves to detect and question the media's pro-censorship tropes. I've collected some of the most pervasive and familiar ones. This post is designed as a resource, and I'll add to it as people point out more examples and more tropes.
When you see the media using these tropes, ask yourself: what normative message is the author advancing, and does it have any basis in law?
[AP: Ville de Granby, Québec, Canada] Shouting their slogan Je suis important, vous ne pouvez pas irriter mon cul délicate, public employees celebrated a legal victory over internet abuse this week in Granby, a town in southern Quebec.
That victory came when the Granby municipal council unanimously passed an amendment to expand Article 17 of the municipal code. For years that code has forbidden the populace to "provoke, insult, revile, blaspheme or harass" police officers or municipal employees in the course of their duties. Last week's amended explicitly expanded the ban to prohibit insults online or in social media.
"This measure patches a gaping hole in our protection," said Robert Riel, deputy mayor of Granby. "People felt free to insult public employees online. Now they know they can't." Riel — occasionally pausing to collect himself — described how his ability to do his job had been ruthlessly disrupted by citizens criticizing his competence, his policy choices, and his 2010 arrest for attempting sexual intercourse with an award-winning snowman in Granby's public square during the town's Winterlude festival.
"That snowperson was extremely realistic and provocative," Riel added. "But my feelings are just as real."
Though it had strong support from elected officials, local police were the driving force behind the recent amendment. For two years, Granby law enforcement has been the target of relentless criticism, questioning, and even satire by the Facebook group Les policiers zélé de Granby, without any regarding to their rights as public officials and Canadians to be protected from offense. Some of the unflattering commentary was not even in French. Marco Beauregard, directeur of the department, recounted the toll that insults have taken. "My officers are out there ever day, putting themselves on the line," he said. "I owe it to them, and to their families, to do everything I can to make sure they come home at the end of the shift with their feelings intact."
Officers have reported being upset, disquieted, and even hurt by social media comments. "How can a public officer do his or her job," Beauregard demanded, "when people feel free to question the way they do it — and even to mock them? What makes them think they can talk about whatever they want?"
"My journey of improvement on anger-management issues is not an appropriate topic of public conversation, especially after last September," argued Beauregard, referencing an incident that led to the partial destruction of a traffic barrier, two police cars and the lobby of a local Tim Hortons.
"Being Canadian means standing up for your rights," said municipal council member M. Pascal Bonin. "That's all we are doing — using our authority to stand up for our right not to be insulted. It's a fundamental right, and it shouldn't yield to anything."
Bonin himself has been the target of rude jokes regarding his name, despite his repeated and patient explanations that it is pronounced Bon – eeen. "If citizens can say what they want about civic employees, you're going to see the whole culture of public life change," he said. "Before you know it, the only sort of people who will run for office or take a public job are the hardened sort that can just shrug off criticism as part of their job, or who think that they are only there to serve the public."
"And what would that look like," Bonin asked, shuddering.
Dateline, Washington D.C.: The Drug Enforcement Administration, pressed by Congress for answers about its treatment of Andrew Chong, has no answers to give.
I wrote about Andrew Chong before. He's the young man the DEA arrested in San Diego when they caught him smoking dope at a friend's house during a raid. DEA agents handcuffed him, locked him into a room, and left him there five days without food or water. He drank his own urine, eventually attempted suicide, and was close to death when he was discovered. He suffers from post traumatic stress disorder, not surprisingly. DEA agents claimed that he was left there through an oversight and that nobody could hear him shouting for help. An investigation determined that you could very clearly hear someone shouting for help from that room.
If I seize someone, handcuff them, lock them in a room, and leave them to die, I will suffer severe consequences. I will lose my job, especially if I acted while performing my duties. I will go to jail. I will suffer catastrophic personal financial losses. My name will be broadcast far and wide.
That's the difference between me and a federal employee.
The DEA agents who arrested Andrew Chong for smoking dope and left him to die got reprimands or suspensions that were shorter than my last tension headache. You and I — the taxpayers — paid Andrew Chong the $4.1 million settlement he secured; the agents did not. They are not named in any of the articles about the incident. They will not go to jail. They will not lose their jobs.
Free of significant consequence, they will continue to exercise their armed authority to inflict consequences on other people who break the law.
In 2013, Judge Susan Criss presided over the trial of Alisha Marie Drake, who stood accused of the horrific crime of videotaping the rape of a 14-month-old child. During jury selection, a Jehovah's Witness in the jury pool told Judge Criss that he would not view child pornography and that his religion did not allow him to judge others (an issue familiar to anyone who has ever encountered a Jehovah's Witness in a jury pool). Judge Criss berated the juror and belittled his religious beliefs:
So if it grosses you out, then you can take it out on the person in punishment because it can’t possibly gross you out more than it grossed out that child. So that’s what my God tells me.
Eventually Judge Criss ordered the prospective juror arrested:
Juror No. 48: Your Honor, I’m one of Jehovah’s Witnesses and I believe that Jehovah God is a Supreme Judge and it is not in my place to judge anyone else or to have, for that matter, for them to be – –
The Court: All right. I understand that. We have Jehovah’s Witnesses all the time. But you know what? If you get picked on this jury, you get picked on this jury, and Jehovah can visit you in the jail.
Juror No. 48: Okay. Then – –
The Court: Have a seat, sir.
Juror No. 48: I guess they have to visit me.
The Court: All right. Arrest him. Take him into custody. Take him into custody right now. I’m not playing. See you later.
Judge Criss later explained to the thoroughly cowed jury pool that her experience as a sex crimes prosecutor — which she related in detail — taught her it was difficult to find willing jurors in sex crimes cases, and that she would not be excusing people. "And I'm not playing, and I don't care if anybody likes it or not."
Yesterday the Court of Appeals overturned the conviction. Even though Drake's appointed attorney did not bother to object to Judge Criss' actions, the court found that her comments about the case improperly conveyed her opinion of Drake's guilt, and that her arrest of the prospective juror deprived Drake of an impartial jury by intimidating jurors from confessing possible biases.
But the public opinion by the Court of Appeals did not name Judge Susan Criss. That's a matter of tradition and professional courtesy. You'd have to figure out her name by Googling the case, or by getting it from court records or from someone who knows.
Susan Criss is now in private practice, although she enjoys a public life commenting on her past cases. Criss is defiant about her actions in the Drake case. She won't face any State Bar proceeding. She won't face any consequences at all for her conduct.
These stories are not the exception. They are the rule. The rule is this: citizens generally face consequences for breaking the law and violating the rights of others, but those with the power to administer those laws and impose those consequences rarely face any themselves.
That's the justice system.
It was inevitable.
I expected that in the wake of the attempted terrorist assault on a "draw Muhammad" event in Texas, people would write dumb things about speech.
American journalists have not disappointed me.
Well, they have disappointed me. But they've done it . . . . oh, you know what I meant.
It's time for an update on the exploits of Prenda Law, that team of crooked, bumbling copyright trolls that's been stomped by judges nationwide.
Today, the United States Court of Appeals for the Ninth Circuit heard oral argument in a Prenda case. Prenda's principals have appealed Judge Wright's catastrophic May 2013 sanctions order against them. It was worth the long wait for court-watchers — though probably not for Prenda.
Judge Wright faced complex problems: given that Prenda had dismissed its copyright-trolling case, what sort of sanctions power did he retain, and what sort of due process did he have to extend to the Prendarasts to invoke that power? On appeal, Team Prenda argues that Judge Wright's sanctions and attorney fees award exceeded his power because (1) Team Prenda's inviduals — like John Steele and Paul Hansmeier — were not properly before the court, and (2) Judge Wright effectively levied criminal sanctions, triggering procedural rights that he did not extend to Team Prenda. John Doe — the defendant who triggered this whole escapade, successfully represented by Morgan Pietz — argued that the bizarre and extreme facts supported all of Judge Wright's order under applicable law.
It's foolish to bet on specific outcomes based on oral argument. But that's the kind of fool I am. I predict that the Ninth Circuit will uphold part of Judge Wright's sanctions order — the part that represents a civil sanction — and send the case back to the trial court for a more complete hearing on criminal sanctions.
That's not good for Prenda.
I'm waiting for the Supreme Court to decide Elonis v. United States, which may or may not clarify the difference between "true threats" and speech protected by the First Amendment. It's possible that the Supreme Court will clarify whether a "true threat" must be both objectively threatening (that is, a reasonable person hearing the threat would believe it to be a sincere expression of intent to to harm) and subjectively threatening (that is, the accused intended for the threat to be taken as a sincere expression of intent to do harm). Or it's possible that the Supreme Court will merely decide whether the federal interstate threat statute requires both.
In the meanwhile, let's look at a kind of case in which the distinction might make a difference.
It's untrue that cops scorn constitutional rights. It's unfair to say that they oppose fair procedures designed to promote truth. It's inaccurate to say they oppose measures designed to protect suspects from coercion.
They understand and believe in all of those things.
Paul Alan Levy reports that the D.C. Circuit has applied the refinement reflected in Shady Grove of the Erie doctrine to preclude application of state anti-SLAPP laws to cases where jurisdiction is premised on diversity of citizenship.
I was perfectly clear.
That was literally gibberish.
Fine. Fine. I'll explain. Will that make you happy?
Too bad. I'm doing it anyway.
Oberlin, Ohio (AP): A new initiative calculated to promote healing and inclusiveness has instead led to controversy, legal threats, violence, and reported feelings of unsafeness on the campus of Oberlin College.
Oberlin administrators announced the Emotional Support Companion Animals Program for Everyone, affectionately known as "ESCAPE," last week to an eager student body. "This is a safe space," said Walter Green, the college's Executive Vice-President for Redress of Grievances. "And we choose to make it safer with the help of the nonhuman companions with whom we share Mother Earth."
"The nonhuman companions' choices will also be part of our community dialogue," he added.
With that, Oberlin launched an ambitious plan to supply each student and faculty member with an animal companion to support their emotional, spiritual, and socioeconomic needs, drawing from a large population PETA recently liberated from various forms of servitude across the midwest. Excited undergraduates lined up outside the Nifong Student Empowerment Cooperative, waiting their turn to choose and bond with a companion. "We needed this. We needed this to get through this year from hell," remarked Sophomore False Consciousness Studies major Lauren Haller, as her friends jazzhanded in an affirming manner.
Haller referred to a series of crises that have intruded upon the lifespaces of Oberlin students. In February a senior delayed three days before accepting public responsibility for using the term "girls." College administrators, citing federal privacy rules, declined to specify his punishment. In March, the campus roiled when a computer error resulted in several issues of GQ being stocked at the student convenience store, and the administration failed timely to respond to a Campus Justice Petition demanding changes to certain culturally normative elements of the engineering curriculum. More recently, a speech by extremist Christina Hoff Sommers caused widespread distress. Plans to pelt Ms. Sommers with rotten fruit was derailed when organizers learned that their organic produce supplier had once spoken in opposition to a $25 minimum wage, news that led to widespread tearful recriminations.
Unfortunately, ESCAPE has not provided the solace for which it was designed. Problems began the first day when Little Mister Derrida, a wolf hybrid companioned with popular Classism Professor Forrest Moore, savagely attacked senior Pietro Salvador's emotional support rabbit Che. "It's unreasonable, and in fact very offensive, to expect Little Mister Derrida to deny his nature in order to confirm to social expectations that make the majority comfortable," protested Professor Moore, who declines to classify his companion as either wolf or not-wolf. Salvador, who could not be reached for comment, reportedly informed his RA that he had not found the experience emotionally supportive.
There were other violent confrontations between companions of different backgrounds and life experiences throughout the week. Moreover, many students reported that their classmates had not offered the welcoming and accepting community that is the hallmark of Oberlin. Sophomore Henry Trask's attempt to bring his emotional support pig to a Comparative Religion class led to a largely unproductive and mostly screamed debate about the inherent tension between Trask's right to emotional support and his classmates' protected right against offense. Freshperson Darlene Oswalt filed a federal civil rights complaint when a professor asked her to take her raptor outside, saying that the college had attempted to "silence [the eagle's] own story." Moreover, students with sensory differences have reported hygiene anxieties. "The residence halls reek from feces and urine," said one student who asked to remain anonymous. "And this time not just that one graduate dorm."
Administrators rushed to address student concerns, but unsuccessfully. Room-to-room trigger warnings listing the types of companions therein proved impractical with an active and mobile student body and were condemned as "othering and stigmatizing" by some students. The school hired emergency crisis counselors, but discovered that the students' anxieties and conflicts merely relocated to the waiting areas of the counselors' offices. "I can't reach serenity without Dostoyevsky," said one student, referring to her emotional support chinchilla. "And Dostoyevsky can't be serene if there are, like, four coral snakes waiting there with those pretentious assholes from the theater department."
At press time, administrators were privately expressing grave concern. "I don't know what to do," said Green. "There's going to be a surge in calls for emotional support next week when those free speech fanatics from FIRE show up to talk. And this is Peak Triggering season in the economics and history departments. These students need to have someone unquestioning and uncritical reaffirm their feelings, and we thought animals fit that bill."
"They are being exposed to upsetting ideas every day," said Green. "What are we supposed to do, just tell them to deal?"