Cracked Drunkenly Paws At Free Speech Theory Again

I feel both fondness and respect for Cracked. I remember reading the magazine as a kid — it was number two or three to Mad, but it tried harder. As a web site, it's done good work in the realms of satire, fatuity, and social and political commentary. But like any institution it has a culture, and that culture has its weak spots. One example: the urge to write meandering make-everyone-dumber think pieces about "free speech."

I put scare quotes around free speech because Cracked seems to require its writers to blur the lines between free speech law and social norms surrounding free expression, and to address them in a way that obscures both. This week's example: "What Free Speech Doesn't Give You The Right To Say."

We're in trouble right from the start:

Freedom of speech is one of the cornerstones of our society, and it is absolutely a principle worth defending to one's dying breath. Unfortunately, complete assholes are also a cornerstone of our society, and will definitely be here until our dying breaths. And when the latter gets ahold of the former, they invoke it improperly and indiscriminately, like a toddler with a new word or a monkey with a shotgun.

We're in trouble right from the first paragraph. Aaron Kheifets invokes rights in the piece's title, suggesting a discussion of legal norms, but immediately bogs down with terms like "improperly" and "indiscriminately." Indiscriminately according to whom? Improperly under what standard? You won't find out in this piece; those are emotive reactions to speech, not attempts at legal or philosophically principled distinctions.

Kheifets' first point is that people crying "censorship" at content regulation at Reddit, Facebook, or Google are wrong. Just wrong. Why?

Does that mean the internet is abandoning our much-beloved free speech? Fuck no! It just means that the standards for free speech people use on the internet are finally catching up to all other forms of human interaction.

That sounds nice, but it's uselessly vague. Maybe Kheifets means "online businesses are starting to throw drunks and assholes out, just like your neighborhood restaurant would if you started shouting about lizard people." Or maybe not. His elaborations are incoherent:

First, I'd like to point out that there are a ton of things you are legally not allowed to say. The example everyone is familiar with is that you can't yell "Fire!" in a crowded theater (everyone will kick your ass for talking during Rogue One). But there are many more examples of things you have no legal right to spout off. You can't incite people to violence, you can't slander (in speech) or libel (in writing) someone, and you can't say things that would make any reasonable person punch you in the face, because them's fightin' words (though telling someone you thought The Force Awakens was a good movie is still technically legal, for some reason).

Here Khiefets finally references legal norms, but in a vague, misleading, and mostly useless way. These are all censorship tropes, invoked in a tropey way. The observation that some speech is outside the First Amendment is true but irrelevant and unpersuasive absent specific explanations of how particular established exceptions apply to particular speech. The "you can't shout fire in a crowded theater" bit is a reference to a rhetorical flourish in a subsequently overturned case that means absolutely nothing. The "you can't incite people to violence" observation is true but somewhat overstated, since the test for actionable incitement (whether the speech is intended to cause, and likely to cause, imminent lawless action) is narrow. And "fighting words" — if it survives as a doctrine — is restricted to face to face insults directed at a specific person. Most importantly, these legal doctrines are all irrelevant to the question at hand — whether private companies are involved in wrongful censorship — because internet companies aren't the government and their actions can't violate the First Amendment under the state action doctrine.

Onward we slog:

Yet despite it being completely illegal in real life, people think they are allowed to threaten and harass people online. Leslie Jones received a mind-boggling number of inflammatory and threatening messages on Twitter, and zero people went to jail. Contrariwise, if someone (say, I don't know, maybe a Cracked writer) organized people to make a bunch of prank phone calls to a radio DJ, they would for sure go to jail. Just ask Cracked writer and jail alum John Cheese.

Wait, wait, wait. This is too much whaarrbargl. Kheifets has just asserted that things called "threatening" and "harassing" online are "completely illegal" in "real life." Well, not exactly. Only true threats are outside the protection of the First Amendment. Many, perhaps most, threats are not "true" because a reasonable person would not interpret them as a genuine statement of intent to do harm. The law of "harassment" is more muddled, but suffice it to say that not everything you think is harassing is outside the protection of the First Amendment either. It's true that nobody went to jail for being assholes to Leslie Jones, but Khiefets hasn't established that anyone did anything outside the protection of the First Amendment, so the observation doesn't get us anywhere. Then Kheifets asserts that you would "for sure go to jail" if you "organized people to make a bunch of prank phone calls," and for that assertion cites an article by another Cracked writer who doesn't explain exactly what he did before he was arrested and doesn't explain what happened to the charges after he was arrested. In fact, organizing people to call (or crank call) someone might get you charged, but it's not at all "sure" that you'll be convicted or "go to jail." This is nonsense.

It keeps getting worse:

So just to be clear (and I can't believe this is a sentence that actually needs to be written), you aren't allowed to intentionally inflict harm on someone, even by just using words, whether via in-person chat, phone, email, Facebook, Instagram, telegraph, Snapchat, Tinder, smoke signals, singing telegram, carrier pigeon, words scrawled on a gas station bathroom wall, or even Reddit.

This isn't a correct statement of law. It's not even a correct statement of morality. It's absolutely allowed — and protected by the First Amendment — to do things that you intend to cause harm. For instance, condemning people for evil or stupid acts may cause them harm, but it's protected. Revealing true and shameful facts about them — Anthony Weiner, anyone? — may cause harm, but it's protected. The proposition that you aren't allowed to cause harm through our words — a popular trope of badly written cyberbullying laws — is not just wrong, it's a joke.

Kheifets finally gets around to something worthwhile and not entirely inaccurate:

If a comedian makes rape jokes and people don't like them, that isn't the audience censoring the comic any more than someone not liking a meal is censoring the chef. Nobody has to support anyone else's shit sandwiches.

Kheifets goes on in that vein for several paragraphs. He's right. People shunning you for your free speech is their free speech. Criticism isn't censorship. But it would be nice if Kheifets — having invoked and blundered around in the vicinity of legal norms — would point out the key one here, which is that only government action can violate the First Amendment.

Kheifets concludes with this:

Free speech is a vital part of a free society. Shouting racial slurs at people until they're afraid to interact with the world isn't. You aren't entitled to free, uncontrolled access to Facebook's servers. You're free to ride a horse, but you're not free to ride a horse into an IKEA — especially not a horse you don't own. And constantly crying "free speech" is beating that horse to death.

This, particularly as the coda to Kheifets' piece, is confused. I'm not sure whether he's saying that racial slurs aren't a "vital part of a free society" (arguably true but irrelevant to whether they are protected speech) or whether he's saying they aren't protected free speech (which, under many circumstances, would be incorrect). The horse thing is just incoherent. And Kheifets is the absolute last person to have any business berating others for inaccurate invocation of free speech rhetoric.

Seriously, Cracked. This is crap. Most of your columns about free speech are crap. They don't educate anyone. They promote confusion and ignorance about vital civic concepts. Why do you keep doing this?

Update on The Popehat Podcast

I've written about it before, and I teased it in yesterday's flag burning post, but a Popehat podcast is getting closer. (I know, I said that last December.)

I have all the content ready for the first episode. I've been listening to a lot more podcasts and have gotten more of a sense of what I want to do with it.

Tentatively it will be titled "Make No Law: The Popehat Free Speech Podcast." It will focus on free speech issues, defined very broadly to include both legal and cultural questions. The first episode — "Fighting Words" — will delve into Chaplinksky v. New Hampshire, some surprising facts about the case that put quite a different spin on it, and how it is inseparable from another burning First Amendment question of that era — the right to refuse to say the Pledge of Allegiance. First episode will be just me, but in future episodes I hope to include co-bloggers, guests, and interviews. Links to supporting written material will be provided on posts that appear here when the podcasts are released. It will be on iTunes.

The biggest barrier for me right now is the production aspect. I need recommendations for someone who can do some art to use for the Podcast (the logo, splash page, etc.). Also, through I have the equipment and software to record, I find the process of editing and finding and adding music and bumpers to be completely mysterious, so recommendations to indie producers (or companies that might take the podcast on) would be appreciated. Also there's the problem that, since my tape-recorded project on Venus in 1977, I've always found my own voice to be insufferable, but there's probably not much you can do about that.

FWIW, some of the podcasts that I like the most, and most inspire me to enter the field, include History of the World in 100 Objects, Criminal, Stranglers, History of the English Language, Lore, and Rex Factor.

All input welcomed, here or at ken at popehat dot com.

Lawsplainer: Why Flag Burning Matters, And How It Relates To Crush Videos

I have a question about flag burning.

I deserve this. I earned this. I've . . . done things. I am forsaken and abhorred by God.

Oh stop being so dramatic. I just want to ask why I should care.


Look, I get that the Supreme Court ruled — twice — that flag burning is expression protected by the First Amendment. But we argue about controversial speech all the time, and politicians advocate for punishing protected speech all the time. Why should we care when Donald Trump oafs around about flag burning? Isn't it just noise?

Because the flag burning "controversy" goes directly to the structure and methodology of free speech analysis.

That sounds superficially profound without actually meaning anything.

Do you want to have this conversation or not?

Pffffft. Fine. What does flag burning have to do with free speech "structure" or "methodology"?

In free speech analysis, how you get to a conclusion often has much more long-lasting impact than the conclusion itself.

Our legal system runs on precedent. The significance of the precedent isn't "the Supreme Court said that flag burning is protected by the First Amendment." The significance of the precedent is "someone wants to punish this speech and we have to figure out whether or not it's protected by the First Amendment. Let's look at the logic and methods the Supreme Court used to resolve that question when flag burning was the issue, and then apply it here."

But the Supreme Court has decided lots of cases about the First Amendment. This is just one precedent, one example of a method of reaching a conclusion. What makes it particularly important?

The Supreme Court's flag burning cases are crucial — not because of how they analyze existing exceptions to the First Amendment, but because they address whether the government can create endless exceptions to the First Amendment.

Just like crush videos.


Crush videos. You know, videos of women stomping on small helpless animals.

That's . . . that's a thing?

Of course it's a thing.

Ugh. What does that have to do with flag burning? Or the First Amendment?

Congress — having salved all of the nation's ills — passed a law banning crush videos. Because who wouldn't vote for someone who stands against hurting baby animals? The law made it a federal crime to create or sell depictions of animal cruelty in interstate commerce. In 2010, in United States v. Stevens,, the Supreme Court found that the statute violated the First Amendment.

That sounds pretty straightforward. Why is it significant?

It's significant because of the way the government defended the statute. The government's lead argument wasn't that crush videos were outside of First Amendment protection because they fell into an already-recognized exception, like defamation or obscenity or incitement. They argued that the Supreme Court should recognize a new categorical exception to First Amendment protection for animal cruelty, because animal cruelty is so awful. They also argued that courts can recognize new exceptions to the First Amendment by weighing the "value" of the targeted speech against the harm it threatens.

The Supreme Court — in an 8 to 1 decisionfirmly rejected those two arguments. First, the Court said, the historically recognized exceptions to First Amendment protection are well-established, and you can't just go around adding new ones:

“From 1791 to the present,” however, the First Amendment has “permitted restrictions upon the content of speech in a few limited areas,” and has never “include[d] a freedom to disregard these traditional limitations.” Id., at 382–383. These “historic and traditional categories long familiar to the bar,” Simon & Schuster, Inc. v. Members of N. Y. State Crime Victims Bd. , 502 U. S. 105, 127 (1991) ( Kennedy, J. , concurring in judgment)—including obscenity, Roth v. United States , 354 U. S. 476, 483 (1957) , defamation, Beauharnais v. Illinois , 343 U. S. 250, 254–255 (1952) , fraud, Virginia Bd. of Pharmacy v. Virginia Citizens Consumer Council, Inc. , 425 U. S. 748, 771 (1976) , incitement, Brandenburg v. Ohio , 395 U. S. 444, 447–449 (1969) ( per curiam ), and speech integral to criminal conduct, Giboney v. Empire Storage & Ice Co. , 336 U. S. 490, 498 (1949) —are “well-defined and narrowly limited classes of speech, the prevention and punishment of which have never been thought to raise any Constitutional problem.” Chaplinsky v. New Hampshire , 315 U. S. 568, 571–572 (1942) .

Second, the Court said, the government's proposed methodology — that the Court should identify new categorical exceptions by balancing, on a case-by-case basis, the value of speech against its harm — is antithetical to First Amendment analysis and dangerous:

The Government thus proposes that a claim of categorical exclusion should be considered under a simple balancing test: “Whether a given category of speech enjoys First Amendment protection depends upon a categorical balancing of the value of the speech against its societal costs.” Brief for United States 8; see also id., at 12.

As a free-floating test for First Amendment coverage, that sentence is startling and dangerous. The First Amendment ’s guarantee of free speech does not extend only to categories of speech that survive an ad hoc balancing of relative social costs and benefits. The First Amendment itself reflects a judgment by the American people that the benefits of its restrictions on the Government outweigh the costs. Our Constitution forecloses any attempt to revise that judgment simply on the basis that some speech is not worth it. The Constitution is not a document “prescribing limits, and declaring that those limits may be passed at pleasure.” Marbury v. Madison , 1 Cranch 137, 178 (1803).

So: in 2010, the Supreme Court overwhelmingly and clearly rejected the idea that legislatures and courts can create new exceptions to the First Amendment based on how strongly they hate speech or how awful it is.

Okay. But I don't see what that has to do with flag burning.

The argument that flag burning is outside First Amendment protection relies on the same argument that the government made in Stevens — that the Supreme Court can, and should, recognize a special new exception to the First Amendment because burning the flag is so uniquely awful and represents such "low-value" speech.

Can't you justify a flag-burning prohibition under already existing historical exceptions to the First Amendment? What about fighting words, or incitement to riot?

You could justify some prosecutions of flag-burning on that basis under existing neutral laws, but not laws generally banning flag burning.

"Fighting words" — to the extent the doctrine still exists, which is doubtful —

What, what? It is?

–you'll have to wait for the first episode of the Popehat free speech podcast for that.

Anyway, at most fighting words allows the government to punish words directed at a particular person amounting to a challenge to an immediate physical fight. So, for instance, Paul Robert Cohen's jacket saying "Fuck the Draft" couldn't be fighting words because nobody could reasonably understand it as a direct personal challenge to them to fight. And in most cases, burning a flag isn't a direct challenge to a particular person to fight, which is why the Supreme Court said that it couldn't be treated as fighting words.

Could it be fighting words, hypothetically?

Sure! Say my neighbor Bob is a veteran and I knock on his door and when he opens it I'm burning a flag with a sign that says "I SPIT ON YOU BOB." That could probably be punished under the fighting words doctrine as a direct immediate challenge to a specific person likely to cause an immediate fight — if there was an existing statute prohibiting such challenges. But flag-burning statutes aren't limited to one-on-one confrontations like that. They seek to ban all flag burning.

Okay. But what about incitement? Isn't burning a flag incitement?

Colloquially it might be. But legally, it's not incitement outside of the protection of the First Amendment. The First Amendment protects speech that may make people so angry that they resort to violence — and thank God it does, because otherwise you could control speech by reacting violently to it.

No, incitement is only outside of the protection of the First Amendment when the incitement is intended to cause, and likely to cause, imminent lawless action. Maybe some people burning the flag intend to start a riot, and maybe in some situations a riot is likely. But most flag-burning statutes aren't that narrow — they ban flag burning whether the burner intends to incite a crowd to violence or not. That's why the Supreme Court rejected "incitement" as a rationale for flag burning laws.

Could you punish flag burning as incitement to riot?

Sure, you probably could, if you could prove that the flag burner intended to cause, and was likely to cause, imminent lawless action. You could do so under an existing incitement or disturbing the peace statute.

In 2005 members of Congress — including then-Senator Clinton — proposed a rather narrow flag-burning law limited to situations where the burner intended to cause and was likely to cause imminent violence. That would have met the strict test defining "incitement." It still would likely not have been constitutional, because it singled out for punishment one specific type of expression likely to cause a riot, and therefore was based on content. But that's a different post.

Okay. But you're not a Supreme Court Justice. Reasonable minds can differ on these things. Four justices dissented in both of the flag-burning cases. Can't you admit you may be wrong?

I'm wrong all the time. But my fundamental point is about how and why those justices dissented in Texas v. Johnson (the 1989 case striking down Texas' flag-burning law) and United States v. Eichman (the 1990 case striking down Congresses we-are-outraged Flag Protection Act of 1989).

Those dissents don't seriously advance either the fighting words theory or the incitement theory. Rather, they argue that the flag is unique and deserves unique protection — a new First Amendment exception.

Take Chief Justice Rehnquist's dissent in Johnson. It opens with a stirring history of the flag and its historical significance and emotional impact, and distinguishes it from other symbols like this:

The flag is not simply another "idea" or "point of view" competing for recognition in the marketplace of ideas. Millions and millions of Americans regard it with an almost mystical reverence, regardless of what sort of social, political, or philosophical beliefs they may have. I cannot agree that the First Amendment invalidates the Act of Congress, and the laws of 48 of the 50 States, which make criminal the public burning of the flag.

Rehnquist does invoke the fighting words doctrine, but not to fit flag burning within it. Rather, he cites it for the proposition that courts can carve new exceptions out of the First Amendment based on a weighing of the value of the speech against its social harm — in other words, the exact argument the government made and the Court rejected in Stevens:

The Court could not, and did not, say that Chaplinsky's utterances were not expressive phrases — they clearly and succinctly conveyed an extremely low opinion of the addressee. The same may be said of Johnson's public burning of the flag in this case; it obviously did convey Johnson's bitter dislike of his country. But his act, like Chaplinsky's provocative words, conveyed nothing that could not have been conveyed and was not conveyed just as forcefully in a dozen different ways. As with "fighting words," so with flag burning, for purposes of the First Amendment: It is no essential part of any exposition of ideas, and [is] of such slight social value as a step to truth that any benefit that may be derived from [it] is clearly outweighed by the public interest in avoiding a probable breach of the peace.

Justice Stevens' dissent in both Johnson and Eichman is similar: he argues that the government has a compelling interest in protecting the flag from desecration and that such prohibition is acceptable because it will apply no matter what the intended message of flag-burning is:

These cases therefore come down to a question of judgment. Does the admittedly important interest in allowing every speaker to choose the method of expressing his or her ideas that he or she deems most effective and appropriate outweigh the societal interest in preserving the symbolic value of the flag? This question, in turn, involves three different judgments: (1) The importance of the individual interest in selecting the preferred means of communication; (2) the importance of the national symbol; and (3) the question whether tolerance of flag burning will enhance or tarnish that value. The opinions in Texas v. Johnson demonstrate that reasonable judges may differ with respect to each of these judgments.

This is the balancing test put in different terms — it still relies on a judgment that (a) this speech is harmful and (b) the speech is of low value because you could say the same thing other ways that are less harmful.

So what's your point?

The flag-burning cases are important, like the crush videos case was important, because they draw a crucial line between having a few strictly limited exceptions to the First Amendment, on the one hand, and having as many exceptions as we feel like having, on the other hand. Flag burning isn't speech that's uniquely valuable or important to protect. What's important is that we protect the principled method by which we determine which speech is protected and which isn't.

The argument that flag burning should be outside the First Amendment can be applied with equal force to just about anything — "hate speech," "cyber-bulling," "revenge porn," "pro-ISIS speech," or whatever the flavor of the month is. If think the majority was wrong in the flag burning cases, here's what you're saying: "the Supreme Court makes bad judgments, and I want to give that Supreme Court the power to decide, on a case-by-case basis, whether the harm of speech outweighs its value. I don't want the courts to be limited to established, well-defined categories outside of First Amendment protection."

But that's ridiculous.

You're damn right it is.

It's about nothing less than the rule of law.

Okay. Hey, aren't you just being a dupe for Trump by reacting to one of his tweets, when he's probably just trolling?

I write about the First Amendment. It would be ridiculous to stop just because Donald Trump raises the issue of the day. Prudence requires us to put Trumpisms in perspective; it shouldn't prevent us from continuing to articulate our core values and talk about the things that are important to us.

Update: Ninth Circuit Rejects Attack on "Comfort Women" Monument

In 2013, the city of Glendale, California created a monument to "comfort women" — women of various countries sexually enslaved by the Imperial Army of Japan during World War II. Back in 2014 I wrote about a lawsuit brought by Japanese-Americans against the City of Glendale in which the plaintiffs claimed that Glendale's commemoration violated the Constitution's Supremacy Clause because it interfered with the still-sensitive and still-controversial (to the Japanese, anyway) subject of Japanese war crimes. I wrote about a federal court's dismissal of the lawsuit later in 2014, and Marc Randazza piled on and questioned the recent provenance of the entity created to be one of the plaintiffs. I maintain my position that the lawsuit was one of the most repulsive I remember seeing.

During the summer, there was an update — the U.S. Court of Appeals for the Ninth Circuit upheld the dismissal of the lawsuit. The decision is here.

The Ninth Circuit didn't agree with the trial court about everything. For instance, the appellate court concluded that the plaintiffs had standing — that is, a sufficient stake in the issue to be qualified to challenge the City of Glendale's actions. The trial court concluded that the plaintiffs had not demonstrated standing by alleging that their enjoyment of Glendale parks was disrupted by the presence of the comfort women monument; the Ninth Circuit — relying in part on environmental and Establishment Clause cases — decided that the statement of offense and interference with enjoyment of public spaces was enough.

After that, though, the plaintiffs and the Ninth Circuit parted company. The appellate court agreed with the trial court that the City of Glendale's commemoration of a historical event did not interfere with the United States' foreign policy and did not violate the Supremacy Clause. The court distinguished cases in which states have enacted remedial schemes aimed at foreign policy, like bans on trading with particular nations or a statutory plan to recover art stolen by Nazis during World War II:

Moreover, in contrast to state actions we have found preempted, Glendale has taken no action that would affect the
legal rights and responsibilities of any individuals or foreign governments.

The comfort women monument, by contrast, was expressive:

These purposes—memorializing victims and expressing hope that others do not suffer a similar fate—are entirely consistent with a local government’s traditional function of communicating its views and values to its citizenry.

This was the right result. Any other would prevent local governments — and by extension their citizens — from expressing themselves on historic matters. In a post-factual world, uttering the truth steadfastly becomes even more important. Imperial Japan sexually enslaved women. If they don't like that being said, tough.

This firm rejection by the Ninth Circuit renders moot my previous speculation on the ultimate endgame of the forces behind this lawsuit. I will note, however, that one of the original attorneys on the case has litigated on behalf of Turkey and Turkish entities using the same Supremacy Clause argument. Glendale, and its environs, have monuments recognizing the Armenian Genocide. Turkey, and Turkish interests, would prefer those monuments and official recognitions did not exist. If that was the long game, it has been thwarted now. But the fight to tell the truth about history does not end.

True Threats v. Protected Speech, Post-Election Edition

So. Thank goodness everyone seems to be going about this really calmly.

Dateline: Rutgers. Kevin Allred, a professor of Beyoncé Studies, is not taking recent news philosophically. In the course of a rant he offers these:


Days later, the NYPD shows up at his home and hauls him off to Bellvue for a psychiatric evaluation.

Analysis of when law enforcement can detain you and forcibly commit you for psychiatric evaluation is complicated and beyond the scope of this post. Let's look at the easier question: were those tweets illegal threats, or protected by the First Amendment?

The answer: they're probably protected speech. Remember, only "true threats" are outside the scope of First Amendment protection. A statement is only a "true threat" if a reasonable person would interpret the words, in their context, as an expression of actual intent to do harm. In addition, the speaker must either intend that the words be taken as a statement of intent to do harm, or at least must be reckless about whether or not they would be interpreted that way (that's still a bit up in the air, legally).

Here, the context is a tweet rant by a Rutgers professor. The Second Amendment tweet is part of a rant about gun control, and the bumper sticker tweet is part of an attack of intellectual and emotional incontinence about Trump. Neither threatens a specific target and both sound figurative and hyperbolic. So: the government probably can't satisfy the objective test (that a reasonable person would read these as sincere threats), let alone the subjective test (what he intended). It's likely protected by the First Amendment. Legally.

Practically, this sort of thing will get you arrested, if someone happens to catch a cop's attention with it. Stuff that is far more clearly satirical results in arrest and prosecution all of the time. Usually the people arrested are a lot less privileged than a Rutgers professor, and it's much easier to be arrested if you say something mean about police officers. But these tweets were close enough to the line (especially read out of context, as cops tend to read such things in the heat of the moment) that an arrest isn't surprising. You might even wind up having to take a case like this to trial if you get charged. Allred's threatening to sue — but if it's on the theory that his speech was protected, he'll probably lose, because the speech is close enough to the line that the cops are likely protected by qualified immunity even if a judge agrees that the tweets were only hyperbole.

I think that the tweets should be protected, embedded as they are in a figurative expression of rage. But Allred's an asshole. If I were one of his co-workers, or students, I would be a little worried about being around him, because I wouldn't be sure that these are hyperbole. If I were his employer, I'd spend the whole day dealing with the fallout and trying to weigh risk and liability and the fears of other employees.

(The flip side is that far worse stuff gets said online all the time without anyone taking action — because law enforcement is arbitrary and capricious.)

Dateline: San Diego. Matt Harrigan, founder of PacketSled, is nonplussed:


This ends with Harrigan resigning his position and, I suspect, waiting for a visit from the Secret Service.

This, too, was likely protected speech. As I explained in 2012 when jackasses were incensed over Obama's reelection, threats against a President or President-elect are subject to a true threats analysis as well. Under the federal statute prohibiting such threats, there are two questions: (1) would the statement be understood by people hearing or reading it in context as a serious expression of an intent to kill or injure the official? and (2) did the defendant intend that the statement be understood as a threat?

Here, Harrigan was talking to Facebook followers, and the statements were part of a stream of rage. Despite the fact that he offered details about how he would kill President-Elect Trump, given the context and audience reasonable people probably wouldn't take this as a genuine statement of intent to do harm, and it would be difficult to prove he meant it that way. People familiar with the context would likely interpret it as the venting of someone who is accustomed to getting his way suddenly being thwarted. Therefore it's likely protected by the First Amendment, and because it's part of hyperbole, ought to be. But it's damned close to the line.

Once again, this sort of outburst gets people arrested all the time. Sometimes it gets people charged. Sometimes it results in convictions. Harrigan is well-positioned to skate because he's an affluent white techbro on Facebook. If you're a disturbed jobless nobody or a prisoner, you may get convicted, even though objective analysis ought to suggest that your rant is even more impotent and unlikely than Harrigan's. "Reasonable person" analysis tends to discredit threats from people like Harrigan and Allred and credit threats from people who are offensively dark, poor, incarcerated, or unbalanced in a way that does not lead to tenure. That's the way the system works. Sorry, no refunds.

Lawsplainer: About Trump "Opening Up" Libel Laws

Donald Trump famously said he'd like to "open up" libel laws. How much should that concern you?

From my perspective — as a First Amendment advocate and an opponent of Trump — it should concern you as an attitude about speech, but not much as a policy agenda.

Let's start with what he said.

"One of the things I'm going to do if I win, and I hope we do and we're certainly leading. I'm going to open up our libel laws so when they write purposely negative and horrible and false articles, we can sue them and win lots of money. We're going to open up those libel laws. So when The New York Times writes a hit piece which is a total disgrace or when The Washington Post, which is there for other reasons, writes a hit piece, we can sue them and win money instead of having no chance of winning because they're totally protected," Trump said.

I begin with the proposition that Trump is a bullshitter. The polite way to put that is that he says things that are not intended to be taken as factual statements. Was this one? Was it merely emotive? Did he think he could do this sort of thing? It's anybody's guess. My guess it that it was mostly bullshit — worrying in terms of his attitude towards free expression, but not a policy agenda.

Let's talk about the substance, such as it is.

Trump complains about the press being able to run "hit pieces" and purposely "negative and horrible and false" articles. Part of that is true and part is false. The press can absolutely run hit pieces and negative and horrible articles. We don't have sedition laws any more, and it's not illegal to be biased or "unfair" in a philosophical sense. Only false statements of fact can be defamatory. Arguments, characterizations, insults, and aspersions can't be, unless they are premised on explicit or implied false statements of fact.

When a public figure like Trump sues for defamation, they must prove that the defendant made a false statement with actual malice — that is, they must show that the statement was false and that the defendant either knew it was false or recklessly disregarded whether or not it was false. "Reckless disregard" means something like deliberately ignoring manifest signs that the statement was false. That's been the standard since New York Times v. Sullivan in 1964. Note that even under this standard, a media outlet that wrote a "purposely . . . false" statement of fact can be held liable. It's a difficult standard, but it can be done, as Rolling Stone found out this month.

So. There are two impediments to Trump and his sympathizers being able to sue whomever they want for "hit pieces" or "negative" and "horrible" statements. First, there's the requirement that defamation involve a statement of fact, not an opinion or insult. Second, there's the actual malice standard that applies to defamation claims against public figures.

Trump doesn't have a clear way to "open up" either one.

Defamation is a creature of state law, not federal law. When you sue someone for defamation, you do so under a statute or the common law of one of the states, not under federal law. You might sue in federal court if that court has jurisdiction (a tedious discussion I'll spare you today), but that doesn't make defamation law federal — you'd still be suing under state law. Federal law touches defamation law only to this extent: since 1964 both state and federal courts have applied First Amendment standards to defamation claims, and First Amendment law is often developed by federal courts. In addition, a few overarching federal laws limit state defamation law (for instance, Section 230 of the Communications Decency Act, which says that a service provider isn't liable for defamation based on what a user posts, and the SPEECH Act, which prevents enforcement of foreign libel judgments in U.S. courts unless those judgments comply with First Amendment standards).

As President, Trump will appoint federal judges, from the Supreme Court to the various Courts of Appeal to the trial judges on the many District Courts. But that's not a clear or easy path to "opening up" defamation law and changing either the actual malice standard or the requirement that defamation involve false statements of fact. The Supreme Court has supported the First Amendment very strongly in the last generation, particularly in comparison with other rights. The Court has repeatedly rejected recent attempts to create new exceptions to the First Amendment or to narrow it. Consider Snyder v. Phelps, in which the Supreme Court ruled 8-1 that Westboro Baptist Church protests at funerals were protected speech. That represented a firm refutation of the notion that speech could be limited because it is hurtful or offensive. Or consider the somewhat obscure but incredibly important United States v. Stevens, in which the Court — ruling 8-1 again — overturned a federal law against "crush videos" (don't ask) and sternly rebuked the government's position that courts can create new ad hoc exceptions to the First Amendment based on a weighing of the value of speech. Or consider Reed v. Town of Gilbert last year, in which the Court unanimously (though with some justices taking a different route) held the line on the idea that laws that restrict speech based on content are subject to strict scrutiny.

Unlike, say, Roe v. Wade, nobody's been trying to chip away at Sullivan for 52 years. It's not a matter of controversy or pushback or questioning in judicial decisions. Though it's been the subject of academic debate, even judges with philosophical and structural quarrels with Sullivan apply it without suggesting it is vulnerable. Take the late Justice Scalia, for example. Scalia thought Sullivan was wrongly decided, but routinely applied it and its progeny in cases like the ones above.1 You can go shopping for judicial candidates whose writings or decisions suggest they will overturn Roe v. Wade, but it would be extremely difficult to find ones who would reliably overturn Sullivan and its progeny. It's an outlying view — not chemtrail-level, but several firm strides in that direction. Nor is the distinction between fact and opinion controversial — at least not from conservatives. There's been some back and forth over whether opinion is absolutely protected (no) or whether it might be defamatory if it implies provably false facts (yes) but there's no conservative movement to make insults and hyperbole subject to defamation analysis. The closest anyone gets to that are liberal academics who want to reinterpret the First Amendment to allow prohibitions of "hate speech" and other "hurtful" words. It seems unlikely that Trump would appoint any of these.

In short, there's no big eager group of "overturn Sullivan" judges waiting in the wings to be sent to the Supreme Court. The few academics who argue that way are likely more extreme on other issues than Trump would want.

So: whether or not Trump really wants to "open up" defamation law, it's unlikely he can.

The statement remains concerning, though, because it displays a contempt towards First Amendment values and freedom of the press. It carelessly conflates false statements and negative coverage. It encourages the public to scorn First Amendment rights, and the public already does that enough already. It also likely encourages defamation litigation, which by its nature silences speech through the expense and stress of litigation even when the defendant prevails. For those, I condemn Trump.

Popehat Signal: Dutch Blogger Sued In Florida For Criticism of Junk Science

New Popehat Signal courtesy of Nigel Lew.  Thanks, Nigel!

New Popehat Signal courtesy of Nigel Lew. Thanks, Nigel!

It's time for the Popehat Signal, in which I request help for people whose speech is threatened by bogus and censorious lawsuits.

Pepijn van Erp blogs about science and pseudoscience from the Netherlands. He praises good science and skewers and critiques the bad. Wait a minute. Is that the Jaws theme playing? Yes. Yes it is — because blogging about junk science is a great way to get threatened or sued. In my experience, purveyors of "non-mainstream" science are unusually litigious and sensitive to criticism. You've seen it here at Popehat with "atavistic" cancer theorists and vaccine truthers and naturopaths and fans of questionable cancer remedies and AIDS deniers. I blame the crystals.

Pepijn wrote about a guy named Ruggero Santilli. I see that Wikipedia, which has a four thousand word article about Bigfoot, notes that some scientists view Santilli as a "fringe scientist."

Image of Professor Santilli courtesy of, used for criticism and reporting.

Image of Professor Santilli courtesy of, used for criticism and reporting.

Why is he viewed that way? Well, you can read Pepijn's post about Santilli's claim that he discovered a new type of gas from specially distilled water. Or you could read Pepijn's post about Santilli's claim that antimatter produces "antimatter-light" that can be focused using concave (NOT convex. NEVER convex.) lenses.2 Santilli, unhappy, threatened to sue over the posts, claiming that Peijin van Erp has not only defamed Santilli, HE'S DEFAMED ANTIMATTER:


[Why have scientists not accepted Santilli's theory of magic gas and anti-light? According to one of his supporters it's because of Jews.]

Pepijin's letter in response is everything you could hope for, pointing out that Santilli was threatening the wrong people by targeting his associates, that Santilli's threats of Dutch criminal charges were bumptious, that he had explained the factual basis for his opinions (which were framed as opinions), and that one of the articles was three years old and past the statute of limitations according to a helpful article on the threatening lawyer's own web site.

Santilli was not satisfied and has now filed suit in Florida, as one does. The lawsuit — which you can find here — is odd. Santilli has sued Pepijn van Erp, naturally. He's also frivolously sued van Erp's blog host, Hosting2Go, even though Section 230 of the Communications Decency Act plainly makes the host immune from defamation suits over the content supplied by a blogger. He's also sued Frank Israel, head of the Dutch Skeptics Foundation, apparently because van Erp is a member of that foundation. (Flailing at skeptic foundations associated with skeptic bloggers is classic censorious-junk-scientist behavior).

The arrogant, entitled, malicious, censorious, and frivolous-to-the-point-of-sanctionable nature of the lawsuit is best captured by this paragraph:

It is recognized in the scientific community that when one disagrees with the scientific findings of another, the proper forum for challenging the science is through respectful debate, research and publication of peer reviewed articles based on inconsistent scientific findings and is not customarily attacked through blogs without peer review.

Yeah, peons. You're not allowed to question antimatter-light on your blogs.

Anyway, through his attorney Joseph E. Parish, Santilli is suing over the terms "fringe scientist", "mad professor", and "cunning scam artist". In my view, van Erp's posts very clearly establish these as opinions based on stated facts. Moreover, the inclusion of the host is simply vexatious, and the inclusion of Israel is inexplicable. This is thuggish harassment of criticism of junk science.

Van Erp (and possibly Israel) could use help. Even though the case is rather patently meritless, it could cost a ruinous amount of money to defend. I do not understand that skepticism makes people rich, and very few people can afford modern litigation, even when they are completely in the right. I understand that they can contribute to their defense but that they are hoping that an attorney admitted in Florida will accept the case at a price point bearing in mind the First Amendment issues involved.

As always, your freedom to speak — and mine — depend upon lawyers standing up against vexatious and unethical censorship-by-litigation like this. If you are a Florida attorney and would like to help, please contact me at ken at popehat etc.

Let me end with this: what kind of "scientist" responds to criticism of their scientific theories with litigation rather than proof?

Getting Back To Work The Day After

So: Donald Trump, President-elect of the United States.

I said before that I think he's the worst Presidential candidate in my lifetime, a genuinely awful human being, and an existential threat to America. I'm not going to retcon that in a futile gesture towards cheering anyone up. Nor will I try to cheer you up, if you're upset about it.

But I'm going to ask what we're prepared to do about it, here in the aftermath.

Will we wallow, or fight? Will we proceed with campaign slogans, or with reflection and hard work?

Let's talk about it.

This is not the end of political or electoral history. To put Trump's victory in context, reflect for a moment how often you've been told that some election result shows a sea change in American politics. 1994 was the "year of the angry white man," touted as a new wave of white conservative power thwarting Democratic choices. Ask Bob Dole how that turned out. 2000 and 2004 were the years of "permanent Republican majority," sold as another end to Democratic chances. That lasted into Obama's victory in 2008, sold to us as the crest of a demographic wave that would crush the Republican party. Apparently not.

"This is the hugest change ever" is popular with media and pundits. It gets clicks. It hasn't been true so far.

America is equal to this: Assume the very worst about how Trump will govern for the moment, and then look at our forebears and what they endured.

Nearly three-quarters of a century ago my grandfather enlisted in the Navy after Pearl Harbor. He was a peaceable man — he didn't even like loud talk — but it was what his country required. He and my grandmother married quite quickly and moved to Boston, his hometown, so he could complete supply officer training. He stayed at Harvard (then used as a site to train officers) while my grandmother stayed with his parents, whom she had just met. When she went into labor with my mother, she forbade anyone to reach out to him on campus:

Judy was born at the Chelsea Naval Hospital on January 14, 1943. When labor pains began a week early, I didn't want Paul [my grandfather] to know, because he had a major test in the morning that would influence his assignment in the Navy. There was a blizzard going on, so I sent Mother D [grandpa's mother] home from the hospital in the taxi we came in. I always prided myself on my independence, but having a baby alone was something else. It was worth the struggle though — Paul got a good assignment, and we named Judy after St. Jude, the patron saint of the impossible.

Grandpa went on to serve honorably and quite effectively in the unglamorous position of supply officer on a seaplane tender in the Pacific, winning a Bronze Star for his effectiveness at the job but not seeing combat, not counting the time a kamikaze destroyed his room while he was off-ship.

When I look at my grandparents and the dangers and uncertainties they faced alongside their generation, I am filled with confidence in American endurance. I feel the same when I look at how America came through the hellish abattoir of the civil war. I feel it when I see how Jehovah's Witnesses persevered, and eventually prevailed, in their fight to exercise their conscience even in the face of widespread bigotry. I feel it when I see how African-Americans fought through lynchings and murders and fire hoses and dog attacks and beatings along march routes and explicitly racist laws to secure some measure of legal equality and an African-American President. I feel it when I see that Americans who believed that the state has no right to regulate whom we love fought from Bowers v. Hardwick to Lawrence v. Texas in less than a generation.

America has fought wars of every stripe, against ourselves and others. We've plumbed the depths of economic misery. We've survived race riots and nativist strife. And so we shall again. The task ahead isn't easy. It's daunting. But we're up to it.

America is our project: Donald Trump will be the President of the United States in January. I support and defend the United States of America. That means that, though I do not support Trump personally or based on policy, he is my President. He is the President delivered by the Constitution I love and want to defend. I wish him well — meaning that I wish for him the health and strength and resolve to meet the challenges he'll face. I do not wish him success on many of his stated projects, but I hope that he will perform his Constitutional obligations effectively and to the benefit of the country. I will not be saying "not my President" but "for better or worse, my President." Though I hope he will not succeed in many parts of his stated agenda, I do not wish failure on his Presidency, and I do not think that defeating him in the next election should be his opposition's top priority. Our top priority should be opposing bad programs and policies he proposes, making the case for the rightness of our positions, and trying to use what consensus we can find to better govern America.

Our values endure: Our values do not die just because you might interpret an election as rejecting them (more on that later). You don't hold on to your values because they're popular, you hold onto them because they're right and just and they make you who you are. America's history is full of popular fidelity to our stated values ebbing and flowing, and of Americans stubbornly holding on to those ideas in the dark times.

Salena Zito — one of the more perceptive journalists documenting Trump's success — famously said "The press takes [Trump] literally, but not seriously; his supporters take him seriously, but not literally." Some of the things Trump said — taken literally — should offend our fundamental values. Did he mean them? Will he try to make policy based on them? That remains to be seen — identifying Trump's stance is often like shoveling smoke. I think it's entirely possible that Trump won't even attempt to do most of the things he's said, or that he'll attempt them in extremely watered-down desultory ways.

We must be prepared to fight against policies that conflict with our values. But that requires, first, some soul-searching about what those values are, whether we have already compromised them, and whether we have been effective and credible advocates for them. The rule of law, the equality of all people (feeble or powerful) before that law, freedom of thought and speech and worship, strict limits on the power of the state over the individual — those are a few I care about. I've been arguing for a while that neither major American party is a reliable friend to those values. It may be a little late to speak out for them if we stood by while "our team" demeaned them. But as I believe in grace and redemption, I believe in the possibility of a renewed commitment to values and a new fight for them.

What makes us Americans? What core rights do we have that the state cannot violate? What are we willing to do to protect them? Now, more than ever, we need to be willing to ask those questions. When President Trump works on his agenda, we need to examine it clearly and honestly and fight what's wrong. It is essential that we persuade. We can't rely on asserting that a policy is wrong because Trump offers it, or because "everyone" knows it is awful. That was the argument against Trump's election, and it lost. We need to return to forceful advocacy of our values and how they apply to policy choices. It's not about popularity. Miscegenation laws were once extremely popular, but they were wrong and violated core American values without regard to their popularity. In striking them down the Supreme Court did not ride a tide of popular support (there wasn't much) but recognized fundamental values embodied in the Constitution. We need to return to using those values as our tools of persuasion and not rely upon the fickle support of culture or popularity or authority. We need to earn support, not assume it.

Charity and Malice: Claiming that Donald Trump won because 40% of the country is made up of irredeemable racist misogynists is not a sustainable path towards recovering political power or governing. It's not even a good way to endure the next 4-8 years. Premising your politics on the Other being horrible may bring short-term successes but not long-term ones. Governor Romney's infamous "47%" remark was so damaging because it conveyed that he viewed half the country as an impediment, as inherently not part of the right team. Hillary Clinton's comments about "deplorable" and "irredeemable" people wound up conveying the same sentiment. It would be a mistake to build an new opposition to President Trump on the foundation of hating a plurality of the country and considering it worthless and evil.

Of course there are racists and misogynists in America. Of course both those things continue to play a significant role in American life. (How significant? That depends on how much money you have.) Of course some of Trump's supporters are very explicitly racist and misogynistic, and of course Trump courted those groups as part of his base.

But attributing a Trump victory to racism and misogyny is a quick, cheap, easy way out. People aren't that simple. Americans didn't conclusively reject racism by electing President Obama, and didn't conclusively embrace it by electing President Trump. Trial lawyers know this: people don't make decisions like computers. People don't tend to weigh all the evidence or consider all the factors or evaluate every counter-argument to every argument. People tend, in small decisions and big ones, to latch on to a few main ideas, come to a conclusion, and then stop considering contrary evidence. A man sees what he wants to see, and disregards the rest. Obama's election didn't mean Americans were free of racism; it meant that Obama effectively communicated big ideas that connected and shut down the other voices whispering in our ears. Certainly some Trump supporters are avowedly racist, but some of them latched on to big ideas and stopped listening to the rest — like his troubling flirtation with evil.

Hillary Clinton won an epic, historic struggle to be the worst Presidential candidate ever. Ultimately she won that struggle — and thus lost the Presidency — because she did not persuade. She did not articulate her core ideas effectively enough, and so not enough people latched onto them and disregarded the bad things about her. Trump dallied with racism — hell, Trump nailed racism in the coat closet and walked out smirking — but Clinton still did worse with Latinos, African-Americans, and Asians than Obama did. It may be that she was doomed from the start — too much baggage, too many vulnerabilities. Or it could be that she lacked Obama's power to persuade. She couldn't get them to accept her simple pitch and shut everything else out. Trump could.

It falls to realistic Trump opponents not to crush the people who voted for him, but to persuade them. In this election the GOP showed that it could fight back against demographic change — not just by marshaling high percentages of white voters, but by persuading higher-than-expected percentages of minorities. The Democrats can't respond to that by writing 40% of the country off as irredeemable.

Hubris and Entitlement: The catastrophic polling failures of 2016 reflect the fatal pride of Clinton's team and what I'll call "the establishment."

Americans are stubborn and proud. They'll be persuaded, but they won't be told who to vote for like you'd tell a recalcitrant child to eat his vegetables. The media, childishly obsessed with Donald Trump (and frankly unenthused with Hillary Clinton) promoted a us-versus-them mentality. It was far more class-based than race-based — it was the message "isn't it unbelievable and hilarious that those people support Trump." The message was "of COURSE vote Clinton, you idiot" or "you're pretty dim but at least you can see how to vote on THIS one." Generally people can't be expected to embrace stories that demean them.

There was another way, but hardly anybody took it. There was the way of "let me earn your vote by persuading you why these policies are right," conveyed as part of an effective set of ideas. There were far too few forceful and effective advocates of how free trade makes us richer and freer. There were too few people willing to risk a genuine discussion of the costs of frequent military intervention. Everyone was too busy arguing what immigration policies they didn't support to debate specific policies that they did support.

The anti-Trump message was based too strongly on entitlement — based on who you are, we are entitled to your vote, by right. You can see that in the frothing rage at third-party voters after Clinton's defeat. You'll see it in the ugly backlashes coming at the minority voters who didn't vote "correctly." But voting isn't a matter of entitlement. "Vote for me because the other guy's horrific" is not an effective method to persuade or get out the vote. It's an idea that focuses on the other guy, not you. You've got to deserve victory. Clinton didn't. Clinton stank of entitlement to rule, the media conveyed that message, and that message fatally amplified Clinton's scandals, conveying that Clinton was entitled to follow the rules differently, to act differently, to be treated preferentially.

The apotheosis of hubris may have been the Huffington Post's imbecilic (and deeply humiliating in retrospect) attack on poll maven Nate Silver for not favoring Clinton's odds heavily enough. At common law, it was treason merely to encompass the death of the king — that is, to verbalize the possible circumstances. In the media's echo chamber, it was a sin to express doubt, and damn the actual facts. Clinton and the establishment relied on things being true because we wanted them to be and because there was a polite consensus, not because of facts.

Your Facebook Page Is Not The World: We were told that the internet would expose us to more people, different people, different cultures. In reality, 2016 helps show us how we can shape our own private internet to confirm our beliefs. People mistook all their friends hating Trump for the whole country hating Trump. People mistook the unanimity of those they had chosen to follow as general unanimity. The exceptions tended to prove the rule. Twitter was notorious for bigoted pro-Trump trolls, but their existence may have served to make pro-Trump sentiment seem extreme, isolated, not formidable, and easily noticed. The closer we look at the internet and how it touches us, the more we should be called to a healthy skepticism.

We Are Not All Equally Vulnerable: Not everyone feels the same way about a defeat, because we don't share circumstances.

This result is genuinely horrifying to many people, and reasonably so. We can hope that Trump does not pursue policies overtly hostile to minorities of all sorts, and we can fight like hell if he tries. But whether you think Trump is racist or not, whether you think the result was an endorsement of racism or not, Trump's campaign was accompanied by a groundswell of explicitly bigoted sentiment, one that I maintain he courted and did not effectively reject. Across the country, ethnic and religious and sexual minorities are afraid of what will happen to them. My daughter, like many, has heard talk about which classmates would no longer be allowed to stay in America. I know people who are genuinely afraid, and I don't blame them — I think Trump's rhetoric invited the fear, some segments of his supporters made it a realistic fear, and that there will likely be an upsurge in bigotry and violence. As a well-off white guy in the suburbs I'm lucky — my kids, not white, are somewhat less lucky. My friends and neighbors, of various ethnicities and religious and identities, are even less.

It falls upon all decent people of good faith to defend our friends and neighbors and countrymen. It falls to us to speak out at bigotry even in the face of sneers and shouts of "Trump Trump Trump." If falls to us to continue to call out bigotry even when we are told that we've lost that fight. It falls to us to monitor, and resist, individuals who feel that Trump's election is a green light for bigoted violence. It especially falls to us to stand up and do our part to resist any state-sanctioned bigotry that President Trump might possibly pursue. That fight may involve pro bono help by lawyers, financial contributions to litigation and campaigns, personal support to the targeted, and tireless advocacy in public. It could, conceivably but (I hope) improbably, involve a commitment to violence.

It's a big, complex country. There are a lot of issues. You won't be able to stand up for them all, nor should you try. I submit that every American appalled or outraged by President Trump's election should pick an issue that is important to them, educate themselves thoroughly about it, and come together with fellow Americans to fight for that issue — to defend people in various circumstances who cannot defend themselves. The First Amendment remains my issue, and I will continue to ask for help defending it. More on that to come.

As we prepare to fight against bigotry, we should keep three things in mind.

First, as I said above, the internet is not the world. The most vivid and aggressive bigots online are, for the most part, profoundly marginal people. They were marginal before Trump and they'll be marginal after Trump. They are shock troops for campaigns, but they lack the ability to participate meaningfully in governing. That's why they're trolls. In assessing how bad things will be with President Trump, do not conclude that Twitter trolls will suddenly be striding the halls of power. They'll still be misfits.

Second, the wave of genuine overt ethnic nationalist political candidates will come next, emboldened by Trump. We will fight them. We will take them more seriously than we took Trump.

Third, it might be a good time to reflect on how we talk about race, gender, and sexuality. Trump struck a chord by fighting "political correctness." I've argued that blasting political correctness often involves whinging that we can't act like a dick without being called a dick any more. But it would be foolish not to inquire why Trump's message resonated. The steadily growing social consensus against bigotry is a good thing. But people are flawed — okay, people are assholes — and the consensus gets twisted and distorted and expressed in foolish, counter-productive ways. Some of America's admirable opposition to bigotry has been filtered through human frailty to become obnoxious, counter-productive, petty, and sanctimonious, an obsession with form over substance. I'm not saying you shouldn't explain what pronouns you prefer. I'm suggesting that maybe the way you convey the message might have an impact on your audience's receptiveness to other messages. It's just possible that "we'll grind these bigots under our heel until they talk right" is ineffective and might actually be more about our character flaws than winning. I'm saying there may be a better way.

The Button: Oh yeah. And we may face the end of human civilization, if Trump acts as President the way he acted as a candidate. My fear of Clinton was that she'd start the apocalypse after careful consultant with advisers and based upon thoughtfully crafted policies. My fear of Trump is more that he'll Trump himself into a geopolitical corner and use nukes out of petulance. So. We have that going for us. Good luck, I suppose, with all that.

In summary: think about what values are important to you, think about how best to come together to fight for them, and fight.

The Corruption of "Speech Has Consequences"

As I've said before, free speech has consequences, and ought to. Put another way, you're not the only one with free speech. Other people might respond to your speech with their own speech, and you might not like it. Response speech might be unfair, intemperate, immoral, or disproportionate, just like your initial speech. It's irrational to judge one and not the other. As a popular cartoon suggests, your right to be a jackass and other people's right to overreact are equivalent.

But I've noticed that the mantra "free speech has consequences" is increasingly abused. People invoke it not to mean "free speech has social consequences in the form of other people exercising their free speech," but to mean "the government can impose official consequences on you for speech it doesn't like." That's a corruption of the idea, and is usually a false statement of law. Censors like to invoke it; they're lying to you.

This week's case in point: the University of Texas. The UT Young Conservatives of Texas — previously famed for stunts like a campus-wide "catch an illegal immigrant" game — recently held an affirmative action bake sale. That's a bake sale that charges people differently based on ethnicity and gender to make a somewhat belabored point about affirmative action policies. It's a hoary rhetorical device that is frequently met with attempts at censorship by academic imbeciles.

The UT community reaction was mixed. The student paper offered an editorial acknowledging that the protest was protected by the First Amendment. The administration acknowledged that it was protected speech and could not be punished. So far, so good. But students also petitioned their government to expel the UT Young Conservatives of Texas, and student government members supported it. Student government member Ashley Choi invoked the consequence trope:

University-wide Representative Ashley Choi, an author of the resolution, called on the assembly to set a precedent that incidents like the YCT affirmative action bake sale will not be tolerated.

“Freedom of speech has consequences,” Choi told the assembly. “That’s why we’re here today.”

Well, no. You're there today, Ms. Choi, because you're a silly totalitarian thug who is trying to invoke state power to punish speech you don't like. You're there because you disdain fundamental rights and civic values. You're there because you perceive, perhaps correctly, that you are ineffectual at persuasion and therefore must use force.

Proponents of the petition overtly believe that UT students ought to be prohibited from questioning affirmative action. Put another way, students like Choi believe that students shouldn't be allowed to question whether and how the school treats people differently based on the color of their skin.

“When [universities] don’t have concrete policy defining what constitutes a hate crime, a lot of the lines get blurred, and a lot of the racist, misogynistic, homophobic and transphobic incidents happening on campus are disguised as freedom of speech or academic freedom,” said Choi, an international relations and global studies senior. “Because of [this] a lot of organizations, especially Young Conservatives of Texas, have been getting away with this kind of racist disaster.”

Ms. Choi should be permitted to advocate for unconstitutional things. The consequences for her doing so should not be official — that is, she should not be expelled or punished by UT. The consequence should be social. She and her censorious ilk deserve our open contempt.