Popehat Signal Update: Awesome Team Gets Great Appellate Result in Frivolous Case By AIDS Denier

Way back in 2013 I lit the Popehat Signal to get pro bono help for J. Todd Deshong, a blogger and HIV-positive AIDS activist. Woo merchant and AIDS denialist Clark Barker filed a frivolous lawsuit against Deshong, claiming that Deshong's critical web sites defamed him and infringed his trademark. A legal Dream Team assembled swiftly and formidably, and in 2014 that Dream Team got the frivolous complaint dismissed.

So far so good. But you can't fight vexatious litigants just by winning motions; you have to inflict upon them the costs of their actions. The Dream Team sought attorney fees under the Lanham Act, which allows a prevailing party to get fees in an "exceptional" case. The federal district court denied the request, saying that there wasn't enough evidence that the plaintiff acted in bad faith.

But that's not the right question, the Dream Team asserted. Today, the United States Court of Appeals for the Fifth Circuit agreed. They reversed the refusal to award fees and sent it back for the trial court to decide under the right standard:

We merge Octane Fitness’s definition of “exceptional” into our interpretation of § 1117(a) and construe its meaning as follows: an exceptional case is one where (1) in considering both governing law and the facts of the case, the case stands out from others with respect to the substantive strength of a party’s litigating position; or (2) the unsuccessful party has litigated the case in an “unreasonable manner.” See Octane Fitness, 134 S. Ct. at 1756. The district court must address this issue “in the case-by-case exercise of their discretion, considering the totality of the circumstances.” See id.

This standard is much friendlier to the targets of frivolous lawsuits. It doesn't require an inquiry into subjective bad faith (which judges are often loath to find) and allows consideration of both the objectively meritless nature of the claims and the methods used to litigate. That will make it easier for other Dream Teams to get attorney fees when censorious plaintiffs abuse the legal system to suppress speech.

Congrats to Paul Alan Levy and Gill Sperlein for this appellate win.

Bleg: External Storage Devices For iOS? Wireless or not.

So. I'd like an external storage device for iOS devices (iPhones, iPads, etc.) that the family could use on a long trip to store pictures (for backup of travel photography) and video (for taking along movies, TV, etc.). We're going places where we may not have reliable wifi, so cloud-based isn't an option.

Being able to stream from the storage device to iOS devices would be nice, but isn't essential if transferring things to and from the device is easy. I want to be able to move video, pictures, etc. back and forth easily without bringing along a computer.

I bought a Seagate Wireless Plus, which seemed to fit the bill, but I'm returning it — turns out the streaming video won't work on content bought through the iTunes store (!), and I find the interface through the app unusable.

Recommendations?

How To Write (Or Solicit) A Good Letter Supporting A Defendant At Sentencing

This week various political figures took some abuse for writing letters seeking leniency in the sentencing of former House Speaker Dennis Hastert, who got a 15-month sentence for monetary transactions designed to conceal that he was paying off victims of sexual abuse.

I've argued before that if you write a sentencing letter in support of a famous (or notorious) person, the media will report on it in an insipid and sensational way. That's inevitable, and media reaction isn't my focus. My focus is suggesting how to write a letter that furthers the best interests of the defendant and is most likely to move the judge towards a better result.

With that in mind, here are some rules:

This letter is not a vehicle for you to express yourself. A letter supporting a defendant is not an opportunity for you to posture, work out issues, or express yourself artistically. It is an opportunity to help the judge see the defendant as a human being. If you cannot stop yourself from making your letter about you instead of about the defendant, or if you find yourself focusing on how the letter makes you sound, please don't write the letter.

Nobody cares what you think about this case or the criminal justice system. Now is not the time to say that the criminal justice system is unjust or should be spending resources on other things or how far worse criminals get away or how this shouldn't be a crime or this is politically motivated. Go write that shit on your LiveJournal. It will annoy the judge.

For these purposes, the defendant is not innocent. Most likely the defendant pled guilty. Or maybe he or she was convicted by a jury. Either way, the judge is starting from the premise that the defendant is guilty. Appeals and habeas corpus motions — or, maybe, attorney arguments about residual doubt — are the place for discussions of innocence. A sentencing letter isn't. "I know he didn't do it" and "this must be a mistake" dramatically undermine a defendant's statements of contrition in plea cases, and simply annoy the judge in jury verdict cases. If the defendant has done his or her best to accept responsibility and covey their regret and you come in and write "I've talked to him and I know he didn't do it," you are undermining the defense. It's not persuasive.

Don't bother if you don't know the defendant fairly well. A good sentencing letter isn't like a letter of recommendation that a professor writes about one of the 150 students in a frosh cattle-call course. It's something you write if you know the person — if you have a connection to them. Letters by mere acquaintances are worthless at best and damaging at worst.

When you praise the defendant's character, bear in mind they are being sentenced for a crime. The core idea "I was shocked by this case because I know the defendant to be a good person" is okay, expressed carefully. So, for instance, if your friend is being sentenced for structuring monetary transactions to hide the fact he's paying off people he sexually abused as kids when he was a coach, saying "[w]e all have our flaws, but Dennis Hastert has very few" is appallingly tone-deaf and probably hurts the defendant. Praise of the defendant can't ignore the present circumstances, or it seems uninformed or stubbornly blind. "Defendant's behavior towards me has been so kind and decent that these serious charges were devastating" is the right tone.

Don't minimize the crime. Why do I have to tell you this? Don't suggest that the crime isn't a big deal. Even if it isn't. That's for the defense lawyer to argue, not you. You're going to undermine the defendant's attempt to show contrition.

Don't attack the victim. You utter moron.

Don't talk about your yacht. When you're talking about how well you know the defendant and how you and the defendant have interacted, avoid emphasizing things that highlight the defendant's life of privilege and/or power. First, it sounds like you're bragging, which is obnoxious. Second, it sounds like you are implying that rich or powerful people should get lower sentences, will will antagonize the judge. Third, it tends to make the defendant look worse: if he or she had so much, why did they do this? Downplay it.

Humanize the defendant, preferably with private conduct. It's fine to talk about how a defendant has led a life of public service. But the best stories to tell are the ones about how the defendant acted when nobody was looking. Some of the most powerful letters are about the defendant's small, private acts of humanity, compassion, and decency. You are, after all, asking a judge to see this defendant as an individual human being rather than as a statistic — to exercise mercy. What better way that to tell a story about such mercy exercised by the defendant? The letters I like best aren't the ones about how my client paid to attend a charity gala every year. They're the letters that tell the story about how the client visited the company's receptionist in the hospital and took her whole visiting family out to dinner, or about how he or she helped a stranger, or how he or she showed private kindness. "This Congressman supported the Family Leave Act" is not nearly as powerful as "when my mom died Bob stayed up with me all night and drove me to the funeral home and sat with me while I handled her affairs."

Don't tell the judge what to do. Some lawyers ask letter-writers to ask for a specific sentence, or to ask explicitly for leniency. I don't. I don't think it's effective. The judge knows what the defense is asking for — the defense lawyer is arguing it. Parroting the defense lawyer's talking points makes the letters sound too orchestrated. For most letter-writers, you're asking the judge to consider the type of person you know the defendant to be. The right tone is "I ask you to consider these experiences in sentencing my friend" or "when you consider the crime, I ask you also to consider these things my friend is done." The exception is a close family member who is directly impacted by the sentence — "I don't know how we can keep the house or keep the kids in school if my spouse goes to prison."

Not every lawyer agrees with these rules. But I find them more effective and the judges I've talked to find such letters more persuasive.

Marc Randazza Wrote An Amicus Brief About Klingon, And It's Magnificent

So a while ago my friend and co-blogger Marc Randazza texts me. "If a 1 is 'I banged any chick I ever just winked at' and a 10 is 'I can recite hamlet in the original klingon,' how much of a Trekkie are you?"

Marc's been my friend for quite a while now so this text wasn't off-putting in the least. For the record, I told him a 6.

Marc needed some translation help. Why? Because he was writing an amicus brief for the Language Creation Society to argue that Paramount Pictures may have a copyright on Star Trek but it can't have a copyright on the Klingon language. The legal point is a fascinating one: if a language is created in connection with a copyrighted work of fiction, can there be a copyright on other use of the language, even if it's not to speak the lines from the copyrighted work?

This is not a case about Defendants using specific, previously used Star Trek dialogue, such as “Tea, Earl Grey, Hot”, but rather about precluding Defendants from creating original dialogue that happens to be in the Klingon language. Plaintiffs provide no authority supporting their assertion that Klingon (or any language) can be copyrighted. “[T]here is no Klingon word for ‘deference’”, and Plaintiffs are entitled to none. Norwood v. Vance, 591 F.3d 1062, 1074 n. 4 (9th Cir. 2010) (Thomas, J. dissenting).

Whether you like law, or language, or Star Trek, the brief is a joy. Marc continues to demonstrate that legal writing can be entertaining, irreverent, and persuasive at the same time.

Regarding That Oklahoma Rape Decision You're Outraged About

Did you hear? Oklahoma said it's legal to rape someone if they're unconscious from drinking! They said it's not rape at all! It's classic victim-blaming! It's outrageous! It's rape culture! It's just what you would expect from one of those states!

Or not.

In fact, it is illegal in Oklahoma to rape someone who is unconscious. That is, to be explicit, under Oklahoma's rape statute it's illegal to vaginally or anally penetrate someone when "the victim is at the time unconscious of the nature of the act and this fact is known to the accused." It's also illegal if the victim is unconscious as a result of a drug administered by the accused.

But Oklahoma, like most states, separates unlawful anal or vaginal penetration from unlawful oral penetration. Oklahoma law — like the law of many states – still categorizes oral sexual contact as "sodomy" and refers to it as part of "the detestable and abominable crime against nature." Oklahoma is one of 14 states that still has a law criminalizing sodomy on the books.

Oklahoma makes involuntary oral contact illegal in specified circumstances:

A. Any person who forces another person to engage in the detestable and abominable crime against nature, pursuant to Section 886 of this title, upon conviction, is guilty of a felony punishable by imprisonment in the custody of the Department of Corrections for a period of not more than twenty (20) years. . . . .

B. The crime of forcible sodomy shall include:

1. Sodomy committed by a person over eighteen (18) years of age upon a person under sixteen (16) years of age; or

2. Sodomy committed upon a person incapable through mental illness or any unsoundness of mind of giving legal consent regardless of the age of the person committing the crime; or

3. Sodomy accomplished with any person by means of force, violence, or threats of force or violence accompanied by apparent power of execution regardless of the age of the victim or the person committing the crime; or

4. Sodomy committed by a state, county, municipal or political subdivision employee or a contractor or an employee of a contractor of the state, a county, a municipality or political subdivision of this state upon a person who is under the legal custody, supervision or authority of a state agency, a county, a municipality or a political subdivision of this state; or

5. Sodomy committed upon a person who is at least sixteen (16) years of age but less than twenty (20) years of age and is a student of any public or private secondary school, junior high or high school, or public vocational school, with a person who is eighteen (18) years of age or older and is employed by the same school system.

So. In this case, one juvenile preyed upon another juvenile while she was unconscious from drinking. To be explicit again, he put his penis in her mouth. Neither was over 18. When awake she was not mentally incapacitated. He didn't use force or violence. He was charged in juvenile court. The juvenile court judge ruled that the Oklahoma statute covering involuntary oral contact didn't cover that conduct. The court of appeals agreed.

There was no normative judgment about rape. Nobody suggested that people who drink are asking for it. The normative judgment was about criminal procedure: if the law doesn't prohibit something, then you can't convict someone of it (or, in this case adjudicate a juvenile as delinquent). The appellate court cited not another rape case for this proposition, but a political corruption case that discussed statutory interpretation:

When construing criminal statutes, we follow the rule of strict construction. . . . We will not, in order to justify prosecution of a person for an offense, enlarge a statute beyond the fair meaning of its language or what its terms justify. . . . . We construe any criminal statute strictly against the State and liberally in favor of the accused. . . . . We give statutory language its plain and ordinary meaning.

So. If I were the prosecution here, I would argue that (1) this conduct should come under the catch-all "forces" in Section A; (2) unconsciousness from alcohol is equivalent to mental illness or unsoundness of mind under B(2); (3) this conduct against an unconscious person necessarily involves some amount of force under B(3). Apparently Oklahoma law didn't support those arguments. Section (B) modifies and defines Section (A), and Oklahoma law already defined force and "unsoundness of mind" in ways that exclude unconsciousness from drink. The problem is simple: Oklahoma's legislature crafted its rape statute to contemplate abuse of an unconscious person, but not its statute covering oral sexual contact. I doubt that reflected a judgment by the Oklahoma legislature; it more likely reflects negligence.

Ultimately today's outrage is a repeat of the outrage over a similar decision in Connecticut in 2012. That time, prosecutors charged the defendant under the wrong statute for rape of a mentally incapacitated person. Feel free to be outraged at the carelessness of legislatures and/or prosecutors. But are you outraged that a defendant can only be convicted of the things they are charged with? Are you outraged that a defendant can only be convicted (or adjudged delinquent) for doing things that the law prohibits, as opposed to things that are prohibited by social consensus? Do you want a society where you can be convicted based on social consensus, even in the absence of a law specifically prohibiting your conduct, in a state that still classifies oral sex as the "detestable and abominable crime against nature"?

Colloquially and morally, the defendant is a rapist. Under Oklahoma law, he's not. The problem is with the statute — so fix it. The problem isn't with our failure to convict people for things that aren't already illegal.

Updated to add: In the comments, Al points out that prosecutors could have charged sexual battery:

B. No person shall commit sexual battery on any other person. "Sexual battery" shall mean the intentional touching, mauling or feeling of the body or private parts of any person sixteen (16) years of age or older, in a lewd and lascivious manner:

1. Without the consent of that person;

That would be a 10-year maximum sentence instead of a 20-year maximum — not that it matters for a juvenile adjudication. But it looks like this is another case of prosecutors not reading statutes carefully. Thanks, Al.

Satire Is Satire Even When People Fall For It, Mr. Jarvis

For years I've been trying to figure out who made this point: all satire is a shared joke between the writer and the reader at the expense of a hypothetical third person — the dupe — who takes it literally. The existence of that third person is a specifically contemplated feature, not a bug.

This is so both as a matter of law and as a matter of art.

Yesterday Esquire ran a satirical column in the voice of Jeff Jarvis. It's not up at Esquire any more, but you can see it here. The satire — penned by Rurik Bradbury, long-time Twitter satirist of Jarvis — mocked the pretense and vapidity of modern internet-changes-everything blather. To my taste, the satirical nature is quite clear:

The Innovation Party will be phablet-first, and communicate only via push notifications to smartphones. The only deals it cuts will be with Apple and Google, not with special interests. We will integrate natively with iOS and Android, and spread the message using emojis and GIFs, rather than the earth-killing longform print mailers of yesteryear. This will give us direct access to netizens, so we can be more responsive than any political party in history.

But tastes differ. Jeff Jarvis thought it was not clear and not permissible:

WhereCanIOrderPopcorninBulk

Esquire subsequently altered the piece to make the satire more explain-the-joke-to-you explicit, then axed it completely without explanation. Both Esquire and Jarvis have their supporters and detractors, and Jarvis wrote an angry post expressing outrage that he continues to be the object of satire.

There are many pieces of this. One is legal. That piece is very easy.

Bradbury's Esquire satire is very clearly protected by the First Amendment. I wrote about a case frighteningly on point. Esquire previously did a satirical article with mock quotes from Joseph Farah of WorldNet Daily and author Jerome Corsi. They sued, claiming defamation. The United States Court of Appeal for the D.C. Circuit crushed their arguments. Remember: only things that could reasonably be understood as provably false statements of fact can be defamatory. Satire is not a statement of fact. In deciding whether something could reasonably be taken as an assertion of fact rather than satire, courts look to what an audience familiar with the publication and players would understand. Said the Court:

The article’s primary intended audience — that is, readers of “The Politics Blog” — would have been familiar with Esquire’s history of publishing
satirical stories, with recent topics ranging from Osama Bin Laden’s television-watching habits to “Sex Tips from Donald Rumsfeld.” See Findikyan Decl. Exs. 35–42. At the same time, followers of “The Politics Blog” were politically informed readers.

. . . .

With that baseline of knowledge, reasonable readers of “The Politics Blog” would recognize the prominent indicia of satire in the Warren article.

In other words, the notion that Jarvis is silly and his views mockable may be inside baseball, but the relevant question is whether readers familiar with that inside baseball would recognize it.1

The fact that some people — inattentive people or people unfamiliar with the subject matter — may take the satire literally does not stop it from being satire. It's expected, the Court explained:

But it is the nature of satire that not everyone “gets it” immediately. For example, when Daniel Defoe first published The Shortest Way with the Dissenters, an anonymous satirical pamphlet against religious persecution, it was initially welcomed by the church establishment Defoe sought to ridicule. See JAMES SUTHERLAND,ENGLISH SATIRE 83–84 (1958). Similarly, Benjamin Franklin’s “Speech of Miss Polly Baker,” a fictitious news story mocking New England’s harsh treatment of unwed mothers, was widely republished in both England and the United States as actual news. See MAX HALL, BENJAMIN FRANKLIN & POLLY BAKER:THE HISTORY OF A LITERARY DECEPTION 33–35, 87–88 (1960).

Again, the joke is not only at the expense of Jeff Jarvis. The joke is, in part, at the expense of people who read carelessly. The joke is "Jeff Jarvis is silly, and by God, so is our society." The root of all comedy is human fallibility, and this article is funny in part because even though it's on a site known for satire by a frequent writer of satire in the voice of a frequent target of satire using exaggerated satirical arguments some people will still be inattentive, uninformed, or simply dumb enough to fall for it. That's why Jarvis's defenders are flat-out wrong when they say silly things like "It's the knowledge that something is satire that makes it satire in the first place."

Legally, this is not a close call.

What about morally? Jarvis and his supporters suggest that it's unethical for journalists to run satirical pieces written in somebody's name. It's not a new argument. Meghan McCain freaked out over apt satire of her writing voice. Visitors here occasionally become indignant over satire. People may get upset because satire written in the target's own voice is so effective against both of its targets. It illuminates the silliness of the person it is aping, and the more people fall for it the more powerful the argument that the mockery is on target. It strikes at the heart of the pretense of internet denizens – that they are well-informed and understand what the hell is going on.

Could there be satire that is unethical because it is genuinely deceptive? I suppose so. (Hopefully not here.) But I think it would have to be a genuine attempt to deceive by a publication not known for satire — something where the publication should expect that even reasonable inquiry and thought would not reveal it. This is not such a case. Esquire is known for satire. Bradbury is know for satirizing Jarvis and Jarvis is known for being satirized. The text of the satire was, well, overtly satirical. And as Bradbury told me, "[T]he bio stated specifically that this person was "not @Jeffjarvis", and the author photo was wearing both a beer helmet and a Santa hat, in late April.""

I don't think ethics prohibit a magazine known for satire from engaging in satire. I don't think ethics prohibit magazines from ridicule, even if that ridicule is part of a pattern. I don't think ethics require satirists to pitch to the lowest possible common denominator, to make their satire ABC-at-8:00-PM obvious. Ethics doesn't require catering to carelessness or foolishness or ignorance. If anything, it's unethical for the media to encourage those bad traits by dumbing down the ancient, deadly, and noble art of satire. One of the Bad Things about the internet is that people foolishly fail to exercise critical thinking about things they find on it. I don't share an ethical viewpoint that indulges and even encourages that trend.

Satire is a matter of taste. If Esquire decided this wasn't to their taste after all, that's their right, although the sequence of events makes them look foolish. But if Esquire caved to explicit or implicit legal threats, or to feckless arguments about journalistic ethics that undermine the very notion of satire, then shame on them.

Bathrooms and Fear

Our cultural wedge issue of the moment is bathrooms, and which ones transgender people ought to use. North Carolina's recent law and spin-off corporate policies and boycotts thereof have kept this in the headlines.

My biases are fairly straightforward. I don't think there is any sudden surge of transgender people trying to use the bathroom they identify with. I'm skeptical of the notion that transgender people pose an elevated threat of sexual assault and haven't seen any evidence supporting it. I don't believe that transgender people have suddenly grown to a statistically significant percentage of the population. Rather, I believe that North Carolina's laws and those like it are electioneering and wedging: in an era where anti-gay strategies are increasingly unpopular, it's a pander to a remaining sore spot of a culturally conservative base.

However, I'm a little uncomfortable ridiculing the discomfort and fear expressed by advocates of birth-gender-only bathrooms.

I don't find transgender people scary, and I'm not concerned they are out to molest my kids. I do think there's a genuine risk that predators could use a choose-your-bathroom approach as a method of getting access to victims, but I'm not sure whether that makes sexual predators more dangerous than they already are (and both adults and children will remain at vastly higher risk from people they know and associate with voluntarily). But here's the thing: in viewing the situation that way, I'm fighting against what our culture is screaming at me to think.

Our kids are much safer than they've been in generations, but our culture relentlessly demands that we be terrified for their safety — specifically including their safety from "stranger danger." The very media outlets that will spend today suggesting that you're bigoted and ignorant if you worry about "a man in my daughter's bathroom" will tomorrow go back to making money by scaring the living shit out of you about how your daughter is in constant peril from kidnappers and rapists and child molesters and crime, crime, crime. The culture that tells you today that your fear is irrational will tomorrow return to telling you to embrace fear you can't rationalize. This message isn't all law-and-order, either. The leftward-leaning side of the culture telling you today that you're a bigot for fearing rape in a Target bathroom will return tomorrow to telling you you're living in a rape culture and that you ought to be accepting of the stories, insights, and fears of the people who face that culture. In short, having long refused to hold you accountable for your fears, and having stoked them and encouraged you to indulge them, the culture is now abruptly demanding that you justify them logically. That strikes me as unfair.

Uncritical fear is a habit of the mind. You can't cultivate it for generations then turn it off like a light switch. It has consequences. You might not like all of them. Sometimes the habit of uncritical fear is going to exacerbate prejudice and ignorance. Don't like it? Fight it on a global basis, not a case-by-case basis. Question fear.

The worst responses to this situation have demonstrated utter inhumanity and lack of compassion for transgender people. That's unforgivable. But in some cases, people are being denigrated for acting the way they're taught to act. I think we could find better ways to persuade them.

A Response To A Critical Email From A University of Wisconsin-Superior Student

In response to my post yesterday, a UW-Superior student wrote to me. I responded. Meanwhile, after receiving the FIRE's letter, UW-Superior closed the investigation without action. I confirmed that the person writing me was a student, but have elected not to name him here.

Dear Mr.White,

Last Friday (04/23/2016), you published an article called "How Inanely Censorious Can College Administrators Get? University of Wisconsin – Superior Will Show You", which raise many concerns. First of all, you're using the name of Ilana Yokel and Debbie Cheslock without their consent and you attacked them on a personal level, which is a terrible thing to do. Secondly, the nature of the investigation and the complaint filed by Debbie Cheslock were that of "student misconduct". Therefore, the procedure occurred as an attempt of trying to resolve a misconduct between student, which shouldn't involve the defense of the First Amendment nor Free Speech. This means that your article wrongly attacked both Debbie Cheslock and the Institution. Thirdly and most importantly, your comment section is filled with hatred and harassment for this poor women, whom life is now threatened because of what you published (including her place of work and her location). Upon learning that you can moderate your comment section, I sincerely ask you to censor those comment (or at least the information regarding Debbie Cheslock) as an attempt to protect her from harassment, cyber bullying and potential assault.

I believe that hurtful action came from misunderstanding, rather than bad intention. Which is why I wrote you this letter to inform you about the situation as well as the possible consequence.
Best regard,

John Doe.

Dear Mr. Doe,

Thank you for writing to me with your response to my post.

You may find my reply disrespectful, rude, or even cruel. In fact, I believe that respect requires me to treat you as an adult capable of a forthright response. I believe you can hear what I have to say, evaluate it, and reject or accept parts of it as you see fit.

First: Mr. Doe, I do not need anyone's consent to speak or write their name. There is no legal requirement that I obtain someone's consent before expressing myself about them, and any such requirement would violate the First Amendment to the United States Constitution. Moreover, you have implied that I need people's consent to write about them even after they have given quotes to newspapers about an issue of public interest, which takes your complaint from silly to utterly ridiculous.

Second, I reject your assertion that I attacked Ms. Cheslock or Ms. Yokel "on a personal level." I attacked their conduct and their demands. Ms. Cheslock demanded that a state school bound by the First Amendment punish students for engaging in satire that is unquestionably protected by the First Amendment, and to be subjected to "cultural competency training" — that is, mandatory education on the right way to think and speak. This is wholly despicable and un-American, and nothing I have said about her comes close to expressing the contempt it deserves. Ms. Yokel asserted that a student newspaper has a nebulous "duty" to exercise free speech in a "responsible way." I stand by calling that incoherent and unprincipled.

Third, your argument about "student misconduct" is nonsensical. University of Wisconsin-Superior is a state school bound by the First Amendment. It cannot violate student rights by labeling things "student misconduct" or labeling an investigation as "trying to resolve a misconduct between a student." If a public school investigates a student and threatens to impose official discipline on that student based on protected speech, it is violating that student's constitutional rights. Your assertion that this "shouldn't involve the defense of the First Amendment nor Free Speech" is also nonsensical. The law, not your feelings, governs whether constitutional rights protect speech. The paper's attempt at satire was obviously protected speech. It's just not a close call at all. The fact that you don't feel it ought to be a First Amendment issue is irrelevant. As the FIRE's letter linked in my post accurately shows, it is a First Amendment issue, and the administration was squarely in the wrong — until it recently announced it had abandoned the "investigation."

Fourth, I think your assertion that the comments are "filed with hatred and harassment" is overwrought. I have deleted some comments that contained gratuitous insults and racism, because Popehat is my private blog and I use it to express myself and exercise my right to free expression. But so far, I don't see anything published that exceeds the level of contempt I think these totalitarian attempts at censorship richly deserve. I will not be "censoring" any of the comments I've approved.

Mr. Doe, let me be more forthright. I do not believe you have equipped yourself to be an adult citizen in a free society. It is not too late to do so.

I am not suggesting that becoming a responsible adult citizen in a free society requires you to become a conservative or eschew "liberal" or "progressive" values. To the contrary. But becoming a responsible adult citizen — and an effective advocate for liberal or progressive values — requires a quite different approach.

We're in the middle of a modest conservative backlash and a resurgence of bigotry, both actual and arrested-adolescent-poseur. I believe a large part of this backlash results from the low quality of advocacy for progressive ideas. Much of that advocacy has become characterized by petulant whining and empty dogmatism. The message conveyed by too many of your generation is not that people should adopt progressive ideas because they are right or just, but that they should adopt them because that is what they are supposed to adopt because that is what right-thinking people adopt. That is irritating and ineffectual. Faced with an idea, I don't expect your generation to confront it. I don't expect you to explain how it's wrong, and win hearts and minds that your ideas are better. Rather, I expect you to assert that you should be protected from being exposed to the idea in the first place. That's disappointing and doesn't bode well for the success of progressive ideas (many of which I admire) in society. In short: if this is how you're going to fight for what you think is right, you're going to lose. Do better.

Meanwhile, I sincerely wish you fulfillment and joy in college, which is a marvelous experience. Don't stop meeting new people and trying new things. Don't overspecialize; you'll never again have such an opportunity to expose yourself to new and different subjects. Take advantage of it.

Very truly yours,

Ken White

How Inanely Censorious Can College Administrators Get? University of Wisconsin – Superior Will Show You

Over at The Torch at the Foundation for Individual Rights in Education, Adam Steinbaugh reports on a university administration sinking to depths of censorious idiocy that managed to surprise me.

The University of Wisconsin – Superior's student newspaper, The Promethean, ran an April Fool edition for the second year in the row. The entire concept of April Fool's Day is inherently problematic, as it generally involves making fun of someone, even if they are in what they view as their safe space. April Fool's editions by college papers are particularly triggering because of the huge delta between how funny college students believe they are and how funny they actually are. But this edition — linked in Adam's piece above — was awfully mild, with the "edgiest" piece being satire by a Jewish student about being Jewish in Wisconsin.

Tumult ensued.

Tumult is banal. College students gonna college student. Just as satire is free speech, so is hand-wringing, self-to-the-cross-nailing, and caterwauling of every type. This is the time to do that sort of thing, so knock yourself out! Believe me, you're going to have trouble being satisfactorily outraged when you're paying down a mortgage and trying to keep your kids from discovering meth.

No, the problem is not young adults acting like young adults, whether with satire or outrage. The problem arises when nominal adults react in an unprincipled and irresponsible manner. That's what happened here, when university administrators announced they were launching an "investigation" based on a "grievance" filed against the satirical edition by a grad student:

Debbie Cheslock, graduate student and student program manager for UW-Superior's Gender Equity Resource Center, filed the complaint. She is alleging the editors violated university policy on non-academic student conduct and improperly noticed its April Fools' Day edition as satire. She contends articles included derogatory terms that were anti-semitic, racist and misogynistic.

Cheslock's grasp of the First Amendment is idiosyncratic, to put it mildly. She believes that it is censorship for a speaker to refuse to meet with their would-be inquisitor:

So, just to clarify, you are also unwilling to meet with me to discuss this matter? It is unfortunate, indeed, since that would be the very censorship you claim is deadly. The right to free speech also includes a continued dialogue and I am extremely displeased in the lack of regard for others’ opinions.

An "investigation" is in the works:

Meanwhile, UW-Superior is investigating the complaint with assistance from UW System’s legal counsel, according to UW-Superior spokesman Dan Fanning.

"We certainly respect the students who are involved with the newspaper and their right to have free speech," said Fanning. "At the same time, we’ve heard from so many students, alumni and community members and they see what we see. Even though that might have been meant to be satire … it clearly wasn’t funny to everyone, that it offended some people and that it crossed some lines that should not have been crossed. The university condemns that."

I'm sorry, but unless the UW system's legal counsel's response is "get the fuck out of my office, you civically illiterate imbecile," this is offensive and ridiculous. I don't have a problem with the administration participating in the marketplace of ideas by saying, in effect, "you're an jerk, but you're a jerk with free speech." But any "investigation" — meaning, any inquiry carrying the explicit or implicit threat of punishment for obviously protected speech — is unequivocally wrong. So is promoting ignorance about rights, as the administration attempted to do in statements supporting its investigation:

As we’ve said consistently, this was unethical and unprofessional journalism and contradicts the very values of our school. Satire is fine, having a difference of opinion is fine, but disrespectful and offensive language is not fine.

FIRE's letter to UW-Superior leaders is stern, as it ought to be. Hopefully the administration will decide that it ought to be spending money on education instead of on lawyers.

Responsibility is not a zero-sum game. Debbie Cheslock and her ilk are morally and intellectually responsible for being thuggish and censorious. But that does not diminish, in the least, the responsibility of grown-ups in the UW-Superior to resist censorship and thuggery when it is urged upon them by students. The things that these students want are incoherent, unprincipled, and totalitarian:

Cheslock said she wants those involved in the Promethean to be sent a message that the paper’s content was not acceptable and isn’t what UWS stands for. She also wants to ensure that the Promethean staff and faculty advisor go through a cultural competency training about diversity.

Yokel said that with free-speech rights comes a duty to exercise those rights in a responsible way.

“The First Amendment is a right, yes, but you not only have a right to say what you want, you have a responsibility to the people you’re representing,” Yokel said. “This paper is a student paper and I’m a student and this paper does not represent me.”

The administration needs to refuse to violate rights based on such demands. If it won't resist, it should be compelled to do so by force of law.

What Empathy Looks Like: Twitch Streamer Brandon Nance Resigns After Ranting At A Depressed Fan

Everyone knows that if you've fought depression or anxiety or bipolar disorder, you'll be much more patient and compassionate with others who suffer, right?

Right?

Well, no. Not necessarily.

I've heard that nobody has more contempt for junkies than another junkie, that nobody despises drunks like a drunk. This doesn't surprise me. Compassion and empathy are beautiful, but they are products of conscious effort, not of nature. Our minds often run the other way. Even if you've had a searing experience with mental illness, your reaction to others might not be saintly. It might be a visceral, angry snarl of "why the fuck can't you just be normal?" It doesn't take an advanced degree in psychology to figure out who the you in that question really is, friends and neighbors.

I, for one, am not more patient with mental illness than I was before I learned to manage it. In my gut I'm less patient. It rustles my jimmies something fierce. I know perfectly well why: I'm pissed off about how depression and anxiety have impacted my life, I'm pissed off about how it's impacted the lives of those I love, and I resent the hell out of having to deal with it. So I fight the urge to shout the questions at others that I can't shout at myself: why can't you just walk it off? Why can't you seek help when you ought to? Why can't you stay on your meds? Why won't you take a methodical approach to this? Why the hell can't you manage this better? I don't actually ask these things, and most of the time I think I achieve decency and compassion to fellow sufferers through deliberate effort. But it's a damned uncomfortable feeling.

So: if I see someone go off on the depressed or the anxious or the suicidal, I'm not inclined to assume that they're just a horrible unfeeling person. Rather, I suspect they may have been there themselves.

Brandon Nance is a Twitch Streamer — that is to say, people watch him play games online. This bit of modern culture is inscrutable to me, but my kids claim it's fun. Whatever. Recently, when one of Nance's viewers messaged him during a session that Nance's videos had helped him recover during a period when he was suicidal. Nance didn't react well. He ranted brutally and bitterly at the viewer, characterizing depressed people as lazy and helpless and suicide as selfish and weak. Controversy ensued, and Nance resigned.

When I heard this story I assumed that we'd learn that Nance himself had lived a life touched by mental illness, and indeed he has — he wrote honestly and bravely about fighting serious depression and about the experience with a family member whose life was ravaged by addiction. That shit's not easy. It might even make you lash out in an angry, bitter rant about suicide and depression.

Many people were very angry at Nance, and expressed that anger in various popular Internet ways. Some were just venting themselves. But I'm sure some thought that they were fighting for empathy and compassion by condemning Brandon Nance. But they weren't, really, were they?

h/t Stephen Combs