Popehat

49

Adam Steinbaugh

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We are pleased to announce that longtime Popehat friend Adam Steinbaugh is joining us as a contributing blogger. We are especially pleased because "Steinbaugh," the color after which Adam is named, is an especially rare one, having been described only in the fevered dreams of the damned Arabian scholar Abdul Alhazred, in his accursed and blasphemous Necronomicon.

For this and other obscenities, Alhazred was later devoured by demons in the now lost city of Irem, She of the 28 Pillars.

ADAM STEINBAUGH is not for everyone.

Adam Steinbaugh is a man of the people, but most especially a man for serious people, who think about serious things. Like Noam Chomsky, Adam Steinbaugh has arrived just in time, for this sorry age surely needs a man like Adam Steinbaugh.

When Adam Steinbaugh has finally been heeded by everyone, and everyone understands the serious things that Adam Steinbaugh is telling us, Adam Steinbaugh will be loved and admired by everyone.

You are on notice.

You will now follow Adam Steinbaugh on Twitter. You will hear what Adam Steinbaugh has to say, and you will be glad. This is not optional.

You are on notice.

139

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

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

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

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

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

The answer lies in the everyday arrogance of unchecked power.

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4

"Bald, Fat & Crazy" — A Book About Perseverance

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Today I write in praise of a new book called "Bald, Fat & Crazy." No, it's not a memoir, but thank you for asking.

Nearly a decade ago my friend Stephanie Hosford found herself unexpectedly pregnant, diagnosed with a virulent form of breast cancer, and just months from a long-planned international adoption, all at the same time. The book, freshly released and justifiably well-reviewed, is the story of how she handled it. It's funny and inspiring, and useful in reminding us that whatever faces us, someone else is facing something even scarier. Check it out.

87

Did The Department of Justice Get A Gag Order Silencing Reason About The Grand Jury Subpoena?

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On June 8 — ably assisted, as I am now, by my co-blogger Patrick — I reported on a federal grand jury subpoena issued to Reason.com in an effort to unmask commenters who used obnoxious hyperbole about Judge Katherine Forrest, who sentenced Ross "Dread Pirate Roberts" Ulbricht to life imprisonment in the Silk Road case.

In that post, I reported that Assistant U.S. Attorney Niketh Velamoor indicated that he "believed" that there was a gag order prohibiting Reason.com from disclosing the existence of the subpoena. I expressed skepticism about that claim because Mr. Velamoor had just two days before signed a letter telling Reason.com that the Department of Justice asked, but did not require, that the subpoena be kept secret.

Since then, additional factors lead me to believe that there is, in fact, an under-seal gag order purporting to prohibit Reason.com from disclosing or discussing the grand jury subpoena.

This post discusses why I think that, and why such a gag order would be an abuse of the law and a grave abuse of power.

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39

Partial Victory In Patterico's Free Speech Case Before Ninth Circuit

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Long-time readers may recall that, together with Ron Coleman, I'm pro bono counsel to Patrick Frey, who blogs as Patterico.

Patrick was targeted with a thoroughly vexatious lawsuit attacking his blogging. Ron and I won the case in the trial court, securing the dismissal of plaintiff Nadia Naffe's federal and state claims.

Today the Ninth Circuit upheld the result in part and reversed it in part. The opinion is here.

You may recall that the trial court dismissed the entire case based on two points. First, the court agreed with us that Ms. Naffe did not state any facts showing that Mr. Frey blogged in his official capacity as a Deputy District Attorney, and therefore her Title 28 U.S.C. section 1983 claim for civil rights violations "under color of law" could not survive, because Section 1983 only applies to state actors. Second, the trial court — on its own — questioned whether Ms. Naffe could prove the $75,000 in damages necessary for diversity jurisdiction1, and eventually found that she had failed to make a showing of sufficient damages.

The Ninth Circuit agreed on the first part and disagreed on the second.

In a published decision that will be significant for public employees who blog, the Ninth Circuit agreed that Mr. Frey didn't blog as a "state actor" for purposes of Section 1983 just because he's a county employee. The Court agreed that Naffe had not stated any facts giving rise to a reasonable inference that Patrick was blogging as part of his official responsibilities. "Frey is a county prosecutor whose official responsibilities do not include publicly commenting about conservative politics and current events." The Court also rejected Naffe's argument that Patrick's blogging was related to his work as a county prosecutor because he discussed criminal law issues. Finally, the Court noted that Patrick frequently reminded readers that he blogged and Tweeted in his private capacity, not his official capacity.

Crucially, the Ninth Circuit confirmed that a state employee can talk about the nature of their work without transforming their speech into state action. That's key for the free speech rights of all public employees. The Court noted "if we were to consider every comment by a state employee to be state action, the constitutional rights of public officers to speak their minds as private citizens would be substantially chilled to the detriment of the 'marketplace of ideas.'" That's what we argued on appeal, and Eugene Volokh ably argued in his amicus brief on behalf of the Digital Media Law Project: Naffe's proposed interpretation of the law would mean that a teacher couldn't blog about teaching, or a police officer about police work, without transforming their writing into official "state action" subject to civil rights lawsuits. That portion of the Ninth Circuit's opinion will be useful whenever a state employee is sued under the theory that their private speech should be treated as official action.

However, the Ninth Circuit reversed the trial court's dismissal of the state claims. At issue was the standard the trial court applied. Having questioned whether Ms. Naffe could prove $75,000 in damages, as required for diversity jurisdiction, the trial court found that she had not proven such damages by a preponderance of the evidence. The Ninth Circuit found that was the wrong standard. Instead, it found, a trial court should only dismiss a case for lack of diversity jurisdiction when it appears to a "legal certainty" that the plaintiff cannot recover at least $75,000. That's an extremely low standard for Naffe to satisfy, and the court found she satisfied it.

So: the case goes back to the trial court. When it does, we'll have the opportunity to ask the trial court to address our motions that were mooted by its prior ruling. Specifically, we filed an anti-SLAPP motion attacking Ms. Naffe's claims as meritless attempts to chill speech, and a motion under California Code of Civil Procedure section 1030 seeking to compel her to post a bond to cover the costs of the case. We're confident those motions are correct and look forward to pursuing them.

Meanwhile, as before, it remains a privilege to work with Ron Coleman and to defend Patrick Frey's free speech. Thanks to Eugene Volokh, whose excellent brief on the free speech implications was instrumental.

80

Media Coverage Of The Reason Debacle

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Ken's post of Monday on the overreaching attempt by the Department of Justice, and Manhattan United States Attorney Preet Bhahara, to subpoena the identities of commenters at Reason for silly rhetoric concerning a federal judge, has gotten some traction in the tech and legal blogospheres, and bit of mainstream coverage. Why the political media at large aren't covering this to a greater extent is a question we can't answer, but it's surprising, given that Reason is one of their own. Perhaps they figure that they've got their running shoes on, and they're happy the bear is going after someone else.

Nonetheless, we'd be remiss in failing to point out that a number of voices have been raised in Reason's defense, or at least covered the situation. For those who are following this issue, here's a by no means inclusive list of journalists and bloggers who've covered the story.

Editorial Board – New York Post. (Preet Bhahara's off-base strike at internet trolls.)

Virginia Postrel – Bloomberg View.

Scott Greenfield – Simple Justice.

Glenn Reynolds – Instapundit.

Charles C. W. Cooke – National Review (and on Mr. Cooke's worthy podcast, Mad Dogs & Englishmen.)

Ilya Somin – Volokh Conspiracy.

Russia Today. (Yes, Russia Today. Because Vladimir Putin is all about free press and free speech.)

Andy Greenberg – Slate and Wired.  (I should add that Mr. Greenberg reacted very graciously to my angrily pointing out that he'd incorrectly stated the law, and updated an early version of the story.)

Charlotte Allen – Independent Womens Forum.

Damon Linker – The Week.

Barnini Chakraborty – Fox News.

Jazz Shaw – Hot Air.  (A pro-prosecution take to the effect that some terrorists may actually own deadly woodchippers.)

Ed Morrissey – Hot Air. (A dissenting view, more concerned with the threat to free speech than the threat of woodchippers.)

"Ace" – Ace of Spades HQ. (Who points out that the beast can be trained to attack in other directions, depending on its master, but it remains a beast.)

Mike Masnick – Techdirt. (With more background on the Ross "Dread Pirate Roberts" Ulbricht case.)

Joe Mullin – Ars Technica. (Another site that covered the Dread Pirate well.)

Annalee Newitz – Gizmodo. (This is why Gizmodo doesn't harvest IP addresses.)

C. J. Ciaramella – Buzzfeed.

Tim Lynch – Cato Institute. (Reason's less druggy older libertarian brother.)

Joe Palazzolo – Wall Street Journal Law Blog.

Doug Mataconis – Outside the Beltway. (Noting the interesting timing, just after Elonis.)

"Dana" Non-White – Patterico.

Rick Moran – American Thinker.

Ryan Radia – Competitive Enterprise Institute.  (A scholarly approach.)

Steven Hayward – Power Line.  ("An in-kind contribution by DOJ to Rand Paul")

Pat Beall – Palm Beach Post.

"Alex in CT" – Right Thinking.

Kate Vinton – Forbes.

Peter Ingemi – Da Tech Guy. (On the stupidity of the comments, as well as the investigation.)

Korean Central News Agency, Pyongyang. (Covering the "hypocritical braggarts" behind this investigation.)

"The Two Way" – National Public Radio.

TYLER FUCKING DURDEN! – Zero Hedge.

Editorial Board – Investors Business Daily.

Jack Marshall – Ethics Alarms.

Virgil Vaduva – Punk Rock Libertarians.

Katherine Forrest – Above The Law.  (Mildly disappointing for lack of substance and focus on the inanity of Reason's commenters, but ATL's own commenters are even worse than Reason's. Perhaps it was "meta.")

Brendan James – Talking Points Memo.

Kari Paul – Vice Motherboard.

And finally…

Nick Gillespie – Reason.com. (Please keep your comments civil.)

We don't endorse or agree with all of the coverage this situation has gotten, but obviously we think it's important. The only surprise is that it hasn't gotten more reporting. If you know of other coverage, from blogs or traditional media, please let me know in comments below, and I'll keep this list updated.

We will continue to cover this matter, as we are able.

260

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

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Two kinds of freedom of speech

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

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

Culture considered more important than law

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

An anonymous email

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

The timeline

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

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

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

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

The calmness didn't last; @aphyr declared

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

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

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

And one social justice warrior, @steveklabnik noted that

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

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

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

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

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

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

http://pastebin.com/e3X5xpNG

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

Hi Curtis,

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

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

Alex Miller

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

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

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

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

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

Strangeloop conference doubles down

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

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

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

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

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

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

Alex Miller

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

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

I defend Strangeloop on legal grounds

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

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

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

Side note: Lefties are Ayn Rand Acolytes

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

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

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

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

Curious.

But, still, I agree with them.

A call for consistency

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

Hey, wait, where are you guys going?

A few questions for Alex and the other conference organizers

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

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

A few questions for the conference sponsors

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

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

tl;dr

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

The culture of free speech is important and worth defending.

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

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

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

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

Further reading on Strangeloop vs Curtis Yarvin

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

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

571

Department Of Justice Uses Grand Jury Subpoena To Identify Anonymous Commenters on a Silk Road Post at Reason.com

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The United States Department of Justice is using federal grand jury subpoenas to identify anonymous commenters engaged in typical internet bluster and hyperbole in connection with the Silk Road prosecution. DOJ is targeting Reason.com, a leading libertarian website whose clever writing is eclipsed only by the blowhard stupidity of its commenting peanut gallery.

Why is the government using its vast power to identify these obnoxious asshats, and not the other tens of thousands who plague the internet?

Because these twerps mouthed off about a judge.

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112

Leaked Northwestern University Email States Rules For Title IX Investigations

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

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

Dear Northwestern administrators and faculty:

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

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

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

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

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

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

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

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

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

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

62

Dennis Hastert And Federal Prosecutorial Power

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This week, federal prosecutors indicted former Speaker of the House Dennis Hastert.

Hastert is charged with two federal crimes: structuring financial transactions to evade IRS reporting requirements in violation of 31 U.S.C. section 5324(a)(3) and lying to the FBI in violation of the notorious 18 U.S.C. section 1001. Both charges reflect the breadth of federal prosecutorial power.

The indictment has mostly inspired chatter about what it doesn't say. Hastert is charged with structuring withdrawals of less than $10,000 (so that they would not be reported to the IRS) so that he could pay off an unidentified person for Hastert's unidentified past misconduct. What past misconduct, or threatened accusation of misconduct, could lead Hastert to pay $3.5 million? The indictment doesn't say, but it has been drafted to imply that the allegation of past misconduct relates to Hastert's job as a teacher and coach in Yorkville, Illinois. Hastert isn't charged with doing anything to the accuser, and the accuser isn't charged with extortion.

As Radley Balko has pointed out, structuring (or "smurfing") charges are extremely flexible. They demonstrate the reality of how Americans targeted by the Department of Justice can be charged. We imagine law enforcement operating like we see on TV: someone commits a crime, everyone knows what the crime is, law enforcement reacts by charging them with that crime. But that's not how federal prosecution always works. Particularly with high-profile targets, federal prosecution is often an exercise in searching for a theory to prosecute someone that the feds would like to prosecute. There is an element of creativity: what federal statute can we find to prosecute this person?

We'll learn more about the reasons for Hastert's payments in the course of the case (or through Department of Justice leaks calculated to harm him). I suspect we'll find that the investigation happened like this: the feds heard that Hastert was paying someone off based on an accusation of old misconduct, determined that the misconduct was too old (or out of their jurisdiction) to prosecute, and started subpoenaing records and interviewing witnesses until they found some element of what he was doing that was a federal crime. In other words, they targeted the man, and then looked for the crime.

The problem with this scenario is that federal criminal law is extremely broad. Practically speaking, it gives federal prosecutors vast discretion to determine who among us faces criminal charges. If you think that you're safe because you've never committed a crime, you may learn to your surprise that you're wrong.

The rational response to this situation is clear: don't trust the feds, don't talk to the feds. But Dennis Hastert, like many accomplished people, believed he could talk his way out of the situation. When the FBI came to interview him, he didn't refuse to answer and call his lawyer. According to the indictment, he confirmed in response to an FBI agent's question that he was withdrawing cash in order to store it because he didn't feel the banking system was safe. For that, he's been charged with lying to federal agents.

This is another aspect of the federal government's vast prosecutorial discretion. Hastert's alleged false statement happened in December 2014. When agents interviewed him, I guarantee you that the feds had already made their case. They had already put witnesses before the grand jury, they had already used grand jury subpoenas to get Hastert's bank records, they already knew exactly how they would charge and prove up the structuring charge. When they went to interview Hastert, there were only three possible outcomes: he would refuse to talk, he would confess, or he would lie in a way they could easily disprove. They were looking either for the confession, which would make their case easier, or the lie, that would give them a new theory on which to charge him with a crime. Under Section 1001 a lie must be material to be criminal. But the materiality element is weak. It only requires the government to show that the lie is the sort of statement that could conceivably influence the FBI. It doesn't require the government to show that the lie actually had any impact whatsoever. Thus the FBI can show up with its case ready to indict, fish for a lie that they know is a lie, and pile that charge on top of whatever the substantive charge is. That's why I bring up Section 1001 so often and explain why it means you must shut up. You can be prosecuted for as little as saying "no, I didn't" in response to a already-documented accusation.

The criminal justice system needs to be able to prosecute perjury — lies under oath before a tribunal. And I can see why it needs to be able to punish false statements to the federal government that represent an attempt to commit fraud (say, false statements to get a passport) or that impact an investigation (say, a false accusation that triggers an inquiry).

But ask yourself: what is the legitimate basis for giving the feds the power to prosecute people for exculpatory lies that have no impact whatsoever on their operation?

From the federal government's perspective, the basis is clear: it's a tool to help them charge people they want to charge.

From the citizen's perspective, this situation points to one obvious conclusion: shut up. Never answer a federal agent's questions without a thorough debriefing with a qualified lawyer first.

65

Mad Max: Actually, It's About Ethics In Truck Driving

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(note: nearly zero spoilers. perhaps actually zero.)

The three genres of the Mad Max trilogy

The interesting thing about the original Mad Max trilogy is that each movie belongs to an entirely separate genre. Mad Max is a 1970s biker film, Road Warrior is a western, and Thunderdome is NFL half-time show. In world-building, yes, they're all post-apocalyptic films (except for the first, which is perhaps during the very early stages of a grinding apocalypse), but genre conventions and associations matter a heck of a lot: they give us a structure to fit the pieces in to and a set of expectations about what comes next.

The original Road Warrior is, it's almost universally agreed, the best of the three, and I think the reason is not just the incredible visceral car chases and wrecks and stunts, but the western format. Echoing perhaps not only Star Wars and a bunch of Sergio Leone spaghetti, but the best western ever (Kurosawa's Seven Samurai) , the plot plays out like this: the drifter encounters a populace in need, insists that he's no hero, reluctantly is converted to serving the cause, and then – ronin-like – drifts away when the moment of need is over.

As a side note, the original Road Warrior also delivers on the important but unspoken requirement of a good western: good cinematography that displays a vast panoramic landscape. The shots where Max is looking down at the refinery camp and the desert looks so huge and empty under the infinite sky is breath taking. Later there's a second shot that always makes me catch my breath: the leaders of the refinery camp are deliberating under a single electric light against a wide purple sky. The juxtaposition of the small bright spark of technology (the first electric light we see in the entire movie, and, I think, the only one) against vast world gone dark is stunning.

Thunderdome sucked (although, after a re-watch recently, not as much as I'd once thought – it's actually the second best movie in the trilogy, and if only a few things were changed could be a lot better) for a lot of reasons, and one of them is that it departed from the Western genre for a Hollywood-ized, big-budget, campy halftime show.

Anyway, I take us down memory lane not merely for the sake of nostalgia, but as a jumping off point to explain Fury Road. Because until you understand what genre the movie is, you can't understand the movie.

A Western Super-Hero Movie

Fury Road has many of Road Warrior's strengths: it is at least half a western, and it is jam-packed with dangerous automotive mayhem.

Crucially, it did not make the same mistake as Thunderdome: taking its huge budget and using it for camp. Or, rather there are a few bits that could be campy in other contexts, but because they're so overwhelmed by gasoline, metal, and anger, they don't register as camp: one moment they're a distant dot on the horizon, and the next they're gone, behind, never to be seen again.

So, how well does Fury Road do as a Western? It does decently, but not great. The drifter arrives in town, he accidentally hooks up with the people in need, and he reluctantly agrees to help them. And then, at the end, like a tumbleweed, he drifts on. It checks all the Western boxes, but it does so perfunctorily, without passion …and, on one occasion, without a lot of sense.

Oh, and about the unspoken rule of good westerns? Yes, the amazing shots of the desert are there – boy are they there. But you knew that already, from the trailers.

If I had to put my finger on the one thing that disappointed me about Fury Road it was that it had a bit of superhero genre mixed in. In watching Road Warrior one feels concern for the protagonists and fear over their prospects. The villains are just real enough – one thinks that, yes, two years after the nukes fell and the gas ran out, the most brutal of the biker gangs and the renegade cops could have come to exactly this. In the first third of Road Warrior we see Humongous and his gang murder, rape, and loot outriders from the refinery camp, so we know exactly what they're capable of. Later, when our hero and his charges venture out into the wasteland and into conflict with the villains we know how it might very well end: the vehicles caught, destroyed, captives pulled out, brutally raped, and then crossbow-bolted when they're of no more use.

In contrast to this level of realism, Fury Road turns the dial one more, to eleven, for that push over the cliff. It was an inspired choice, in a way: I'm glad I saw these insane war rigs, I'm glad I saw the gouts of flame, the grenades, the spiked cars, the white skinned lunatics leaping off of moving vehicles to their certain deaths, and more. I've never seen anything like it before, and it was glorious.

…but necessarily, if you're serving up an apple, you're not serving up an orange.

The scale, the craziness, the everything – all at once, in every direction – is shocking, and aweing, and wonderful. …but because it's so much, and so hyper-real, the movie slips away from being a Western and into being a superhero movie. These villains are not what real biker gangs and real cops could have evolved into in the wasteland: these are comic book crazies. In the real world, no one would actually build these vehicles. No one would actually do these things. No one would actually set up this tribe or this economy.

…and thus, because it's so much larger than life, it is not life. In Blade Runner, when Deckard misses his jump at the very end of the movie and is hanging twenty stories above hard pavement I gulp, because the idea of falling twenty stories is a real one. I can picture it. My heart hammers. My palms sweat.

In Fury Road, when Max is standing on top of a war rig hurtling through the desert I'm mostly curious as to what will explode next. There is not a moment of fear about the shear insanity of standing on top of a moving vehicle doing sixty over rough terrain. Think about that: if you're anything like me, just standing on top of the tanker would scare you to the point of needing new underwear. Yet in Fury Road none of it seems real. The violence was glorious and picturesque and insane…but not once was it scary. …because not once was it real.

Fury Road is a superhero movie.

Who is the superhero?

Fury Road is odd. Unlike the previous films in the franchise, there's not one hero, there are two. And, in fact, Charlize Theron's Imperator Furiosa is at the center of the plot, and at the center of the heart of the film. She drives the action, she drives the truck, she drives the plot. This is a bit odd, given that the movie is called "Mad Max: Fury Road" and not "Imperator Furiosa: Fury Road", but what are you going to do?

That said, Max gets a lot of the action, and even if it's not 51%, there's more than enough to go around.

MRA boycott because Fury Road is feminist propaganda

Someone, I think Roosh V, has announced that Fury Road is feminist propaganda and should be boycotted. There are three reasons that I can think to call a boycott.

First, to put economic pressure on someone. Given the size of the movie industry and the size of the MRA world, I can't imagine that anyone thinks that this might work.

Second, to keep out badthink (the SJW tactic of blockbots, etc.). Say what you will about the MRAs, but I don't think that this is their style.

Third, to create a conspicuous cost to being a member of community, thus serving as an initiation ritual of sorts, and binding the members of the community together.

It's gotta be number three, right?

< shrug >

Moving on:

So, is Fury Road a feminist movie?

I can see why the MRAs say so. It does seem to go out of its way to hit a few feminist tropes – I felt like I was reading bad lesbian science fiction from the 70s once or twice.

Clan of wizened "wise women"? check.

…who live a simpler, more peaceful life? check.

…and have peaceful flower-power hippie names ("Initiating Mother", "Vuvalini of the Many Mothers", "Clan Swaddle Dog", etc.)

…and carry a bag of seeds with them, a symbol of the nurturing protective womb? check.

Pro-forma enunciation that women are not property? check.

Kick-ass heroine, because girls can be just as tough as guys? check.

So, yes, there is a bit of feminism shoe-horned awkwardly into the movie. But it's more silly than objectionable. And, in fact, conservatives will find a lot to chuckle over: the maguffin on the entire chase is the group of young breedable women…and yet not once does anyone suggest that they do anything other than breed. No, a just society, it seems, will still have these women cranking out babies…just under (heh) the good guys, and not the Ugly Old Coot.

Yes, but is Fury Road a feminist movie?

No. Not unless "blowing immense quantities of shit up in a vast barren desert" is a new form of feminism I'm unfamiliar with (and if it is, I promise to give feminism another look-see – that'd be a promising development).

To the degree it's got any ideology, it's about ethics in truck driving: "people should not be slaves, nor should they live under corrupt all-powerful kleptocratic dictatorships".

That strikes me as pretty damned libertarian.

Should you see it?

Yes.

In the theater.

Now.

It's not the perfect movie. It's not even the perfect Mad Max movie. But it is a spectacle of the best kind, and there's no substitute for seeing it the way every western is meant to be seen: spread across a screen as huge as the desert itself.

32

PONIES FOR THE PONY GOD

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From: gemma@arialblack
Re: Fresh content for Popehat

Hi Ken

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

Kind regards
Gemma

Dear Gemma:

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.

Thanks,

Ken at Popehat

Hi Ken

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

Kind regards
Gemma

Dear Gemma:

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

24

Minnesota Court Rules That Criminal Libel Statute Is Unconstitutional

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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.

Yesterday the Minnesota Court of Appeals struck down that state's criminal libel statute.

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.