Harvard Law Student Is A Twit, But Possibly Not An Anti-Semitic Twit

Harvard Law School: 'tis a silly place.

The font of innumerable Supreme Court Justices, its students are capable of a sort of conscious, plodding self-seriousness that would make a performance artist soil herself. Important things are treated stupidly and stupid things are treated importantly and everywhere there are reminders that law is a cold-iron tool, usable for both good and evil. Even revolutionaries wear the cloak of pedantic legalism, as when protesters occupy a public space and then hold votes by "plenary committees" to determine what expression is permitted there. Bad parodies of the rule of law are often effective cloaks for lawlessness.

Maybe it was this stultifying formalism that led a law student to act — if you believe his explanation — like an eight-year-old in public. The Harvard Program on Negotiation held a presentation called "The Israeli-Palestinian Conflict and the U.S.: Negotiation Lessons and Possibilities." One participant was Tzipi Livni, Israel's former Foreign Minister. A Harvard Law School student used the question and answer period to make an articulate argument that Harvard's invitation of Livni endorsed Israeli human rights violations against Palestinians, and that more debate was needed on the very premises of the discussion at hand.

No, just kidding. The student, a leader in the Harvard Law School Justice for Palestine group, called her smelly.


Whoah, sick burn, brah.

The notion that Jews have a distinctive and offensive odor — a trope called foetor judaicus — is an ancient anti-Semitic insult, part of a bigoted bundle that includes things like matzoh made from the blood of Christian babies. Members of the Jewish Law Students Association swiftly wrote a letter to the Harvard Law Record pointing this out. The student has since apologized, sort of.

With regards to what I actually did say, I can see now, after speaking with the authors of this article and many other members of the Jewish community at HLS, how my words could have been interpreted as a reference to an anti-Semitic stereotype, one that I was entirely unaware of prior to the publication of this article. I want to be very clear that it was never my intention to invoke a hateful stereotype, but I recognize now that, regardless of my intention, words have power, and it troubles me deeply to know that I have caused some members of the Jewish community such pain with my words.

The young man's apology isn't "I'm sorry that Harvard Law School's Program on Negotiation, which attempts to increase discourse and awareness about how difficult problems can be resolved through discourse, invited a former foreign minister and I reacted by calling her smelly to signify what a bold revolutionary and deep thinker I am." It's more "sorry that you thought that my use of a classic anti-Semitic trope was anti-Semitic instead of just, you know, being a smirking dick."

Thanks for that.

Young Smelly McListofDemands assures us that some of his best friends are (odor unspecified) Jews:

Many members of the Jewish community—some of whom hold strong differences of opinion with me—have reached out to me on their own to let me know that they did not interpret my words as anti-Semitic, because they know me well enough to know that that is not at all consistent with who I am as a person. I want to thank them and any others who have given me the benefit of the doubt, and I am writing this note in the hopes that more of you will do the same.

This is, in fact, perfectly credible. Some of the student's online defenders have indicated that they are Jews and that — because they know him — they thought his intent was not to invoke an ethnic slur. One HLS student explained the thinking behind the word, which the student himself did not:

To quickly summarize, the student told me he said "smelly" to protest Livni's presence without legitimizing the event with a real question

If that's his thinking, it — and the defense of it — seem perfectly childish and imbecilic. A person with something worthwhile to say could articulate why they think Harvard's invitation of Livini was objectionable or illegitimate. A mere insult doesn't suggest she's illegitimate; if anything it makes her seem more legitimate by suggesting her critics have no arguments. The same online defender wrung her hands that criticism of his actions might deter people from speaking out in favor of the oppressed — a "your criticism silences me" trope that is familiar but equally foolish.

Did this guy mean to insult an Israeli leader with an anti-Semitic trope? I don't know. He seems a little dim if he didn't mean it that way; "odor" tropes are commonly used against all sorts of ethnic groups. But even if he didn't mean it, he's a punk and an embarrassment to the school, as the Dean's irritated reaction aptly suggested. He does not convey to me "Harvard Law School Justice for Palestine has things to say and I should listen to them." He conveys "Harvard Law School Justice for Palestine is led by a self-indulgent little douche who richly deserves every excruciating second of the soul-crushing BigLaw job he'll probably get effortlessly because he's a Harvard twerp."

I haven't named the unserious twerp in question. [Edited to add: now that the Harvard Law Record has, I have. He's Husam El-Qoulaq.] It's easy to identify him if you want. I don't think he's worth it, and I think he has a hope of becoming a not-twerp. His supporters have very fervently asked that he not be named. I didn't not-name him because of that; I didn't name him in spite of it. I would note that if he used such a slur about just about any other ethnic group but Jews, he'd be doxxed within hours by the Harvard community. All ethnic slurs are not created equal in the hierarchy of outrage. I also think that if he weren't a bien-pensant — someone with the approved viewpoints about the approved things, including Israel — he'd be loudly condemned by name by the Harvard Law community even if he offered the same explanation. But if his apologists want to order their moral lives that way, that's on them, not on me.

Edited to add: Yair Rosenberg, who has pursued this story doggedly but fairly, points out that Harvard has posted the video of the event but carefully cut out the exchange that might help identify and memorialize the student. Oh, Harvard. Don't ever change.

Edited again to add: The Harvard Law Record has closed comments on the post about this incident and has deleted comments that name the student.

Edited again to add: The Harvard Law Record has now printed a letter in support of the student, Husam El-Qoulaq, based in part on his consent to name him. It remains unclear to me why the Record — and Harvard — concealed his name before.

A Brief Review of Cheryl Jacobus' Defamation Suit Against Donald Trump And Corey Lewandowski

Political strategist Cheryl Jacobus has just filed a lawsuit against Donald Trump, his calamusphobic bodyguard Corey Lewandowksi, and Donald J. Trump for President, Inc. This is relevant to my interests, so I read it. You can find it here.

I'm not going to talk about the procedural options open to Trump et al., as in my experience New York state civil procedure is an interminable dog's breakfast. But I will comment on the substance. Has Jacobus stated facts which, if believed, support a claim for libel?

Eh. Not very strongly.

The thrust of Jacobus' claim is that the citizens of Trumpelstan were annoyed with her commentary and so falsely asserted that she had begged for a job on the Trump campaign and become hostile when refused. Jacobus claims that it was Trump's team who sought her out, not the other way around, and that after two meetings she saw that they were a pack of lunatics and backed out.

More specifically, Jacobus complains of the following statements about her. By Lewandowski on on MSNBC's "Morning Joe":

She [Megyn Kelly] had Cheri Jacobus on yesterday, who, uh, you know, wanted to talk about Mr.Trump. This is the same person, I'll just tell ya, who came to the office on multiple occasions trying to get a job from the Trump Campaign, and when she wasn't hired clearly she went and was upset by that.

Then this, in a tweet by Trump himself:

Great job on @donlemon tonight @kayleighmcenany @cherijacobus begged us for a job. We said no and she went hostile. A real dummy @CNN

And another Trump tweet:

Really dumb @CheriJacobus. Begged my people for a job. Turned her down twice and she went hostile. Major loser, zero credibility.

Jacobus complains that these false statements unleashed the Trumpalo Uruk-hai upon her life, causing fear and unpleasantness.

If any of this is defamatory, it is only barely so. “Rhetorical hyperbole,” “vigorous epithet,” “lusty and imaginative expression of contempt,” and language used “in a loose, figurative sense” are all protected by the First Amendment. (Greenbelt Pub. Assn. v. Bresler (1970) 398 U.S. 6, 14.) Only false statements of provable fact — or opinions implying false statements of provable fact — can be defamatory. How do you tell the difference? You look at the totality of the circumstances surrounding the statement, including the likely understanding of an audience familiar with the forum and the players. Hence, satire from a publisher known for satire isn't defamatory even if it's played straight, because an audience familiar with the publisher and players would spot it for what it is. Courts recognize that in some contexts, statements are particularly likely to be viewed by a familiar audience as mere rhetoric and not fact. Those contexts include politics, litigation, and the internet.

So. Jacobus admits that when approached by Trump's team she explored, and was interested in the possibility of, a job. That excludes the argument that it's defamatory to say you wanted to work for Trump, which certainly would have been mortally offensive to me. It also means that Lewandowski's statement that she came to the office multiple times trying to get a job and that she wasn't hired are literally true and not defamatory.

Trump's characterizations like "loser" and "zero credibility" and and "dumb" and "major loser" and "dummy" are not provable statements of fact, they are mere insults — rhetorical expressions of contempt. They can't be defamatory.

Trump's characterization of Jacobus as "hostile" is probably too indefinite, unprovable, and opinion-based to be defamatory. Whether she's hostile or not depends on a subjective political evaluation of the media appearances Trump was reacting to. That's very unlikely to be defamatory.

So we're left with Lewandowski's characterization that when Jacobus wasn't hired "clearly she went and was upset by that." Could that be defamatory by implying that Trump turned Jacobus down and was angry as a result and framing her commentary as a result? I guess, but it's a very weak argument. Lewandowski is opining, on a political show known for spin, about the reasons for Jacobus' specific statements on a particular episode of another political show. He's suggesting she was mad because she didn't get a job. It's a characterization by an overt self-interested partisan campaign mouthpiece rejecting an opposing political view. It's the equivalent of a dude saying "you shouldn't listen to what she says about me because I dumped her and she's mad." Nobody moderately reasonable takes that as a statement of provable fact. People familiar with the Morning Joe show would not interpret such statements by campaign managers as assertions of literal and provable fact.

The same goes for Trump's tweets. Jacobus says that it is false to say that she "begged" Team Trump for a job or that they turned her down. But these are statements made by a political candidate, who is primarily known for bluster and trolling, on a platform characterized by hyperbole, about the rough-and-tumble world of political consultants and campaign inside baseball. Once again, imagine a mouthy lout saying "that girl begged me to go out with her and then I dumped her." Rational listeners wouldn't expect that to be a factual recitation of events. Rather — as is the case with Trump — listeners familiar with the speaker would interpret it as a narcissist's unserious evaluation of any interaction with him.

In defamation law, there's a popular philosophical question: can someone be "defamation-proof"? That is, can someone's reputation be so awful that no falsehood can make it any worse? There's a flip-side of this as well: can someone be so notoriously full of shit that they are incapable of defamation, because no reasonable person familiar with them would interpret anything they say as provable fact? This is what I call the batshit crazy rule and the Ninth Circuit more decorously refers to as "general tenor of the entire work." I think Trump — or at least Trump on Twitter — presents a good test case of the batshit crazy rule. Trump's Twitter behavior is such a legendary dumpster fire that I think Jacobus will find it very difficult to argue that anyone familiar with it would take what he says as a statement of fact. Sad!

Frankly, the lawsuit seems primarily a vehicle to drop juicy allegations about Trump and Lewandowki in a court document that's absolutely privileged from defamation suit. Jacobus portrays Lewandowski as angry and unbalanced — though to be fair, not as angry and unbalanced as Lewandowski portrays himself day-to-day. Jacobus also asserts that the Trump campaign was being dishonest about its funding and was too cozy with PACs. As little regard as I have for all things Trump, the lawsuit read to me as strictly politics by other means.

2/10 would not lawsuit again.

Some College Thick-Skin Advocates Need A Thicker Skin

If you want to fight the culture of victimhood, you can't wallow in it. If you're going to be an effective advocate for thick skins, you can't have a thin skin. If you're going to fight against the pernicious notion that people have a right not to be offended, you shouldn't be easily offended.

Why do I even have to say these things?

Dateline: Ohio University. College Republicans write "Trigger warning: there are no safe spaces in real life! You can't wall off the 1st Amendment" on the school's "graffiti wall." They're fighting against the culture of victimology, the culture of safe spaces, the culture of trigger warnings, the culture that treats speech as violence and justifies censorship.

Or are they?

In fact, OU College Republicans' rhetoric, and the rhetoric of their supporters in the media, sounds eerily like the rhetoric of triggers and safe spaces.

“It’s our First Amendment right,” Parkhill, a sophomore studying business management, said. “We feel like we’re being silenced and we feel like people are putting our point of view down, which is what we don’t want, so we’re going to fight back and we’re going to say this is our point of view.”

Well, no. You're not being "silenced" if your views are condemned or ridiculed. And "putting your point of view down" is part of the marketplace of ideas. The fact that you feel it doesn't make it true. Isn't that your point?

Members of the OU College Republicans, Parkhill said, feel their opinions are not welcome on campus.

Isn't "we feel unwelcome on campus" exactly what censors say to try to suppress speech they say triggers them?

The OU College Republicans naturally got pushback against their expression. Over at The College Fix, they were treated as oppressed victims in need of succor. The rhetoric is largely indistinguishable from that used by safe-spacers and the perpetually triggered to call for censorship: "they are under siege" "barrage of cyber harassment." And here's Parkhill again:

“Granted, I knew what I was getting into, but I didn’t think it would be that much hate,” he said. “We are basically a minority on this campus. Our opinion is so put down and so crushed, it’s almost like we don’t have a say.”

No it's not, you nauseating tremulous zygote.

The College Republicans point out, quite reasonably, that it's dishonest and ridiculous to say their reference to "trigger warnings" was a "threat," as some imbeciles have said. It's ridiculous to treat their message as some sort of dangerous assault on the delicate feels of their peers. It's preposterous to call for an investigation based on their message. But the OU College Republicans are relentlessly undermining that truth by adopting the very language of thin skins and weak minds that they're criticizing:

“We can’t have a viewpoint on our campus,” he said. “Conservative or even moderate views on campus is considered racist, is considered bigoted. … We are a lot of good people, we just believe in conservative, Republican values. … [But] it’s just unbelievable the amount of scorn we get.”

You have a right to call people weaklings if they demand safe spaces; they don't have a right not to be called that. They have a right to call you a racist; you don't have the right not to be called that. The marketplace of ideas may decide you're full of shit.

Now, can we make a plausible argument that students are too quick to cry "racist," too swift to use scorn instead of reason against conservative ideas? Can we say victim culture is out of control on college campuses? Absolutely. But can we make that point without adopting the rhetoric of the culture we're criticizing? Can we say "people would like to silence me but they won't succeed" instead of "I feel silenced," and "we have a right to express unpopular opinions" instead of "we feel our opinions aren't welcome"? Can we cut out the feels, please?

By indulging in the very rhetoric they are criticizing, the OU College Republicans and their ilk are not helping the fight for more open dialogue on campus. They're hurting it. They're buying into the underlying premises: you're silenced if you feel silenced. You have a right to be welcomed, not just to speak. You have a right not to be "put down" and ridiculed and condemned. By adopting the rhetoric of those premises they are promoting them. The result is that they've built up the culture of victimhood they're criticizing.

Look, guys: you need to cowboy up.

Anatomy of a Scam Investigation, Chapter 14: The Indictment

This series is about my investigation of a mail fraud ring that attempted to scam my firm, the history of its bad actors, and the methodology that I used to look into it. You can see the whole chapter index here.

The wheels grind slowly, but they grind.

About four and a half years ago I was irritated when my firm received a fake invoice, and was moved to write a series about how people like you or me could investigate and expose scammers. David Bell — a career con man — was the ringleader of the scam and a central figure of the series. Bell sustained a relatively minor state conviction for a related scam in 2014. But one of the most constant themes of the series — and one of the most constant observations of readers — has been that the system allowed Bell to get away with such overt fraud for so many years without apparent consequence. Patience, I said.

That patience has now been rewarded. In August 2015, the United States Attorney's Office for the Central District of California (the region covering Los Angeles and its surrounding counties) indicted David Bell for mail fraud.

The Indictment: Two Familiar Schemes

The indictment is here. Bear in mind what an indictment is: it's just an accusation drafted by federal prosecutors and presented to a grand jury for what usually amounts to little more than a rubber stamp. It's not proof of anything. This indictment, though, has some very familiar themes for anyone who has been reading the series.

The indictment charges Bell — and only Bell — with four counts of wire fraud and attempted wire fraud, nine counts of mail fraud, and a forfeiture allegation seeking to take everything Bell earned through his enterprise. The federal mail fraud and wire fraud statutes are extremely broad and flexible. They require that the government prove that Mr. Bell devised or participated in a scheme to defraud others and that that scheme somehow involved the use of the U.S. mail or interstate wire communications.

The indictment is broken down into two schemes: the wire fraud scheme and the mail fraud scheme. The wire fraud scheme, corresponding to counts one through four, alleges that Bell defrauded payroll companies from 2008 through 2010.1 Specifically, it claims that Bell would sign up his company for payroll services, write bad checks to cover the payroll, and then reap the paychecks before the payroll company realized his check was no good.

If that sounds vaguely familiar, it's because I wrote about similar allegations way back in Chapter Five. In Chapter Five I dug up lawsuits against Bell and his company UST Development filed by two payroll companies — Blue Ocean and Epay — alleging the same scam. Notably, the indictment lists four different payroll companies, which means at least six companies have accused Bell of this. That's going to make it pretty easy for the government to prove fraudulent intent. You might bounce a check once or twice trying to get your company set up, but once you've bounced checks to six different payroll companies in the same few months, it starts to look like enemy action.

The mail fraud scheme is even more familiar to readers of the series. It alleges that Bell sent out mailers deceptively styled as "invoices" for "Telecom Maintenance/Service Call" for $175 or $350 to many companies that had never done business with him. Sometimes the mailers even said that the amounts were past due. Some recipients paid. This is the same scheme that prompted me to write this series and continued for years. This one's all about the fraudulent intent. Bell will claim that he didn't intend the mailers to be misleading. That's a tough sell when he tweaked them and ignored complaints for so long.

What happens from here?

Bell and the government recently stipulated to move the trial date from May to September, a delay that's routine in this sort of case. It could easily get continued again, even multiple times. Bell is represented by experienced and competent counsel.

The government is represented by two formidable and experienced Assistant United States Attorneys. [Fair disclosure: one of them beat me in a trial a few years ago. He knows what he's doing.] The government has likely amassed a vast number of witnesses and a huge array of documentary evidence, as the Postal Inspectors have been investigating this for years. Remember that federal prosecutors' competitive advantage is taking their time and building a grand jury case over years. Taking off my observer hat and putting on my federal criminal defense attorney hat, this looks very grim for Bell.

So what kind of time does Bell face if he's convicted? I'm not going to calculate it because it's so flexible. Though the federal judge has the ultimate discretion about the sentence to impose, that judge will consider the sentence recommended by application of the Federal Sentencing Guidelines. Because this is a fraud case, the driving force behind the length of the sentence will be the "amount of loss" attributable to Bell's actions. When it comes to the wire fraud scheme, that's fairly straightforward — it's likely the amount of money actually paid by the payroll companies. That's not necessarily limited to the transactions charged in the indictment. Under the principle of "relevant conduct," it could include uncharged transactions in the same scheme — for instance, the uncharged money described in the lawsuits detailed in Chapter Five.

But the potentially huge number is the amount of loss attributable to the mail fraud scheme, which targeted thousands of victims. The amount of loss isn't limited to the nine particular mailings listed in the indictment — the potential universe is all of the mailings over the course of the scheme. Just counting the companies that were successfully defrauded, that's likely hundreds of thousands of dollars. But that's not all. If the government wanted to be aggressive — and if the court were receptive (plausible in the case of a career con-man) — Bell could be sentenced based on a theory of intended loss. Under that theory the amount of loss for guideline purposes would be the amount he would have reaped if every single fraudulent mailer yielded money. That's a vast amount.

That provides insight into why federal prosecutors have so much power. In a case like this, they can say "plead guilty and we'll stipulate that the amount of loss is $100,000 — only the actual loss. Go to trial and we'll argue that the amount of loss is the intended loss — $1,000,000." Suddenly the delta between pleading guilty and going to trial is the difference between five months in custody and four years in custody.

So how much time will Bell do if he's convicted? Dunno. Too early to say, and not enough information. But the man has a criminal record, including a recent conviction and jail term, which is going to drive his sentence up significantly. He's not walking off with probation.

This isn't the end. I'll update the series as Bell's case continues. For now, remember: you have to wait for the feds, sometimes years.

UC Davis Wondered If $175,000 Would Make The Internet Go Away. Conclusion: No.

In November 2011, two campus police officers pepper-sprayed protesters at University of California, Davis.


If you'd like to learn about the chain of incompetence that led to this, read the independent report. For instance:

Lt. Pike is also responsible for the specific pepper spray weapon he used, the MK-9, and the manner in which he used it. The MK-9 is not an authorized weapon under UCDPD guidelines. UCDPD officers were not trained in how to use it correctly. And Lt. Pike did not use it correctly. The MK-9 is a higher pressure type of pepper spray than what officers normally carry on their utility belts (MK-4). It is designed for crowd dispersal rather than field applications and “[t]he recommended minimum distance for . . . application of the MK-9 is six feet.” Lt. Pike appeared to be spraying protesters at a much closer distance than 6 feet.

As one of its responses, UC Davis spent $175,000. Was it on use-of-force training for campus police? Crisis management training for administrators? More classes on constitutional rights for students? Nope. They spent it on an "online branding campaign" to "expedite the eradication of references to the pepper spray incident in search results" about UC Davis.

Outsource your marketing, outsource your ethics and your reputation. Had the leadership of UC Davis consulted with, say, one of its students, they would have learned that this was an extraordinarily foolish plan. But marketeers, who have an incentive to make money (though rarely as much as $175,000), can't be counted on to tell you about the Streisand Effect or about the limited usefulness of SEO woo or about what happens when a plan like this gets revealed. Marketeers market. So I doubt that Nevins & Associates or "IDMLOCO" advised their client that the natural and probable consequence of spending $175,000 on this was that sooner or later it would become public and a nearly-forgotten incident would blow up and it would dominate UC Davis search results and make them look sordid and ridiculous. Maybe they have a strategy to deal with it, for another fee.

Do you wonder why college costs escalate? One reason, certainly, is that there is no consequence for administrative idiocy or incompetence.

UC Davis, next time you want to waste money to make your reputation worse, I can beat $175,000.

I've Got A Little List

Making lists of disfavored or ill-behaved people seems to be popular these days. Let's check some out!


Location: SJWList.com
Stated Ethos: "You were added to the list because you publicly called for someone to be fired, disinvited, shunned, no-platformed, or otherwise punished or silenced for refusing to submit to the SJW Narrative. The particular incident is linked to your name in the list. Tortious interference is not a joke."2
Actual Ethos: Jumbled, as you would expect from a wiki inspired by a nerve-stapled easily excitable white nationalist. Some entries offer proof that the named person actually called for some sort of firing or disinviting. Others don't. Take, for instance, the entry for artist and author Alison Bechdel:


Now, I don't feel silenced or no-platformed or shunned if someone tells me that a movie I like is sexist, even if I disagree with them. I suppose if you were emotionally and socially stunted then someone criticizing Apollo 13 could be silencing. YMMV.
Is it defamatory? Unlikely. As I frequently discuss here, only statements that can reasonably be interpreted as provable facts can be defamatory; insults and opinions cannot unless they imply false provable facts. To the extent the statements on SJWList don't have supporting links, they seem mostly emotive rather than factual. To the extent entries have links, they are characterizing the information in those links and therefore disclosing the factual basis for their opinions. Moreover, the entire enterprise is probably subsumed by the batshit-crazy rule.
Is it creepy? Meh. To me it's too effortful and impotently angry to be really creepy. I think it tries to be intimidating, and I could see how people could find it creepy if it directs hordes of incel cheetofingers to froth at someone.
Am I mad I'm not on it? YES. Dammit.

Social Autopsy

Location: [not giving them traffic over the lingering suspicion it's a scam or a troll job]
Stated ethos: "We are about to break the internet. Literally." "Users submit a screenshot of a person’s hate-fueled social media post, which is then used to create a profile that includes their full name, place of employment, city of residence and schools."
Actual ethos: "lol i made a kickstarter :)" "Please allow me to explain the law to you based on this quote from Wikipedia."
Is it defamatory? Too early to say. It's not defamatory to quote someone. It's not defamatory to characterize something that someone said (unless, I suppose, you deliberately took it out of context in a way to change its meaning). It could be defamatory if the site managers negligently attributed to someone a statement they didn't actually make. They may look to a "we only allow user submissions" approach so that they can take advantage of Section 230, but that contradicts their claims that they will verify information. Also, it's possible that gathering and exposing data about minors will violate some state and federal laws; I'm still researching that.
Is it creepy? Hell yes. First, it's creepy because it increases my anxiety about how, in the modern world, it is almost impossible to distinguish trolls from stupid people from evil people. (Edited to add: I previously cited a tweet here but it came from a troll posing as them, not from them.) Second, it's creepy because it's aimed at children, and seems to be Clickhole satire brought to life. I accept the first premise (bullies suck) and part of the second premise (bullies are morally responsible for their bullying) and even some of the third premise (it is appropriate for bullying to have consequences) but I can't agree with a platform that seems either intended to, or reckless about, empowering more bullying than it punishes or deters, even leaving other moral issues about minors aside. Also, the project's advocates offer garbled and contradictory plans and explanations suggesting that they are either great performance artists or unusually dim-witted.
Am I mad that I'm not on it? No.


Location: https://blog.randi.io/good-game-auto-blocker/
Stated ethos: You don't have to listen to Gamergaters on Twitter if you don't want to; use this app.
Actual ethos: You don't have to listen to people who follow certain Twitter accounts we associate with Gamergate as a rough cut of who is a Gamergater; use this app.
Is it defamatory? No, as I've said before. They're pretty up front that this blocks people because they follow other people. Most third-party characterizations of people on the list are self-evidently opinion and hyperbole. "Everyone on that list is a sexist/racist/harasser" is almost certainly protected opinion rather than a statement of provable fact, particularly in the contexts in which it is uttered. Moreover, the group is probably too large and diffuse to attribute generalizations about it to any one person. Group Libel is rarely a thing.
Is it creepy? Not to my taste. It's not a list of people by real name, and as far as I can tell no effort has been made to connect the Twitter handles to real humans. Popehat doesn't use it — each Popehat block is artisanal. I generally would not cede my decision-making over whom to block on Twitter to an algorithm based on who follows a set of users, especially when I don't control the set. Sometimes I follow trolls for information and amusement, and I assume the same is true of others. But then, the sort of abuse Popehat gets on Twitter is limited in scope, and generally suitable for hand-banning. We don't get a thousand eggs a week yelling at us. I can see how this sort of tool could be useful to people who do. It's an extremely rough cut, but I don't think it pretends to be anything else. I think many users adopt it as an expressive act: "I reject thee, Gamergate!" That may be silly but then so is lots of expressive conduct. Caveat: if some employer started making hiring or firing decisions based on whether someone is on the list, that would be ignorant, arbitrary, and thoroughly creepy, and would mark it as a company I wouldn't do business with. But then it would be the company that's the problem, not the list. Consider this: if your local police department starts arresting people based on what psychics tell them, the problem isn't the psychics. The problem is the irrational police.
Am I mad that I'm not on it? Yes. Pretty sure I could get on it by following @Nero, but eh. Doesn't seem worth the effort.

The Block Bot
Location: http://www.theblockbot.com/
Stated ethos: You don't have to listen to abusive people on Twitter. "The Block Bot was created specifically for the atheist feminist community and currently includes a strong contingent of transgender social justice activists and intersectional feminists."
Actual ethos: You don't have to listen to people on Twitter if they have been identified as abusive by a group of other Twitter users, sometimes based on sensible criteria and sometimes based upon ideological purity, junior-high-school ingroup squabbling, humorlessness, inability to comprehend satire, binge-drinking, and possibly performance art.
Is it defamatory? Again, No. It pretty explicitly bills itself as a list curated based upon idiosyncratic criteria. "It should go without saying that blockers, as with any other human beings, make assessments based on their own perspectives and world-view and any commentary they make is their own." So, though being on the Block Bot list means somebody has classified you as a Level 1, 2 or 3 baddie, and those levels have unflattering descriptions, it's clear in context that inclusion is subjective-opinion based, and that it's largely an expressive enterprise. For instance, consider the description of Level III: "This may include, but is not limited to, accounts that appear to frequently engage in microagressions, parrot tired talking points, show a sense of entitlement to have a conversation, exhibit a lack respect for the lived experience of others, etc." Once upon a time you could look at what Tweets got someone put on the list, but as far as I can tell that function is no longer available. I was not particularly impressed with what I saw in that regard.
Is it creepy? Eh. In the sense that human interaction is creepy, I suppose. At its best, it identifies and blocks people who are actually dicks on Twitter. At its worst, it makes semi-transparent the judgmental, irrational, and catty nature of human interaction. Honestly. Say that John Doe thinks "I want to give over the decision about whom to block on Twitter to a group of people who say "intersectional" non-ironically." How much are you missing by not being able to interact with John Doe? Now, I have the same caveat as above. To the extent anyone tried to weaponize this by tying handles on the list to real names, I'd start to find it creepy. To the extent that any employer started making hiring or firing decisions based on it, I'd find the employer creepy, ridiculous, and unworthy of my business.
Am I mad that I'm not on it? Definitively. At the risk of being narcissistic I suspect they didn't put me on the list just to spite me. Well trolled.

Look: making lists and following lists and acting based on lists is expressive conduct, both speech and free association. That doesn't make it right; speech and association decisions can be good or evil or neutral. But when people treat this sort of thing as inherently censorious, they're forgetting that the people writing and using the lists have expressive rights too.

Rape and Civility

Yesterday over at The Watch, Radley Balko reported on a story from Aiken, South Carolina, where police pulled a car over for having a temporary tag (something that's not illegal), abused the inhabitants, called the African-American adult male passenger "boy", and on the pretense of searching for drugs digitally probed his anus on the side of the road:

The anal probe happens out of direct view of the camera, but the audio leaves little doubt about what’s happening. Pontoon at one point says that one of the officers is grabbing his hemorrhoids. Medlin appears to reply, “I’ve had hemorrhoids, and they ain’t that hard.” At about 12:47:15 in the video, the audio actually suggests that two officers may have inserted fingers into Pontoon’s rectum, as one asks, “What are you talking about, right here?” The other replies, “Right straight up in there.”

Pontoon then again tells the officers that they’re pushing on a hemorrhoid. One officer responds, “If that’s a hemorrhoid, that’s a hemorrhoid, all right? But that don’t feel like no hemorrhoid to me.”

As I said when a man in New Mexico was violated at even greater length and with shameful medical assistance, inserting your fingers into somebody's anus against their will is rape. It doesn't stop being rape because the cops did it; it's just rape under color of law.

The Aiken Standard — the local newspaper of Aiken, South Carolina — was snide and defensive about Radley's work and minimized the events and their significance in an unsigned editorial. The Standard noted that the lawsuit has not yet been adjudicated, the claims have not been tested, and we're finding out what's going on. It praised the police department for "transparency" and closed with this paen to civic discourse:

Police officers face danger every day. They’re not perfect, but they lay their lives on the line every day so we can be safe.

As stated by Council member Lessie Price in a meeting with the Aiken Standard, shortly after the story broke, “This is a town where we can talk to each other, we can come in a room, have a conversation, you may not like what’s being said, but we can come together and talk to each other.”

How genteel.

The Standard does not appear to dispute that the Aiken police probed the man's anus on the side of the road looking for drugs. The dispute, rather, is what cause they had to do so, and whether they did so in a way that is notably less cordial than forcibly probing someone's anus on the side of the road would be as a matter of course.

This leads me to ask — is the civility the Standard celebrates helpful?

Civility is a good thing, even when discussing controversial subjects. It's a goal I often fall short of, but a goal nonetheless. Civility even on heated subjects is a good thing because of humility: we may be wrong about the things we are angriest about. It's a good thing because of proportionality: our sense of what is outrageous enough to provoke incivility may be idiosyncratic. It's a good thing because of perspective: the world is full of people ready to be uncivil to us about things we have every damn right to do, and if we encourage incivility we'll get what we ask for. It's a good thing because of human frailty: too often incivility is about the self-image of the uncivil, not about justice or persuasion. Put another way, while I vigorously defend the right to rant about woodchippers, I recognize that invoking them is more often the self-indulgent wankery of poseurs than not.

But civility can take pernicious forms. It's pernicious if we shy from calling out outrageous and despicable conduct. It's pernicious when we give armed government officials the benefit of the doubt because the culture tells us they're brave and nice. It's pernicious when we don't demand public explanations for conduct because the conduct is horrifying and unseemly. Most of all, it's pernicious when we decide that civility is substantive rather than procedural. Civility weighs against gratuitous shouting, insults, and threats. But civility does not require that we let the government beg the question. It does not require that we accept, as true, the premises about government power that have been served to us since birth.

Civility does not require that I presume cops had a reason to do things. Civility does not require me to be automatically skeptical of accusations against them. Civility does not require me to refrain from calling forcible anal intrusion a rape. Civility does not require me to refrain from saying that a white cop who calls a black passenger "boy" is a bigot. Most of all, civility does not require me to accept the devil's bargain proffered by the state and the press: that if the police can conjure up evidence that they had some rational grounds to believe this man did have drugs shoved inside of him, that would justify raping him on the side of the road. Civility does not require me to accept that a law that would permit the police to act this way — even if everything they say is true — is right or moral or just or minimally tolerable. Civility does not require me to accept the proposition that the amount of drugs that would fit in a man's rectum can justify the state forcibly intruding there to look for it. I decline.

I don't care if the Aiken police had twelve eyewitnesses and a video tape showing this man shoving drugs up his ass. If they bent him over on the side of their road and shoved their fingers into him looking for it, they're rapists. I don't care if the law says they can do it, it's wrong. And I don't care how many rape apologists like the Aiken Standard tut and shush and shrug. A society that says this is okay — a society that says it's acceptable for armed agents of the government to rape a man on the side of the road in search of a golf-ball sized bag of drugs — deserves scorn.

Pardon the incivility.

Road To Popehat: Friendly Advice Edition

It's time for the Road to Popehat, the feature in which we check out the site traffic logs, see what searches brought you here, and revisit the dosage on our anti-anxiety medication.

Occasionally we are moved to try to be helpful to our visitors. Why not?

in new york state can you say something negative anout someone if its true: You totally can. Let 'er rip! I mean, unless it's about a pathologically sensitive billionaire or something.

when you call a lawyer's office what do you call him by the name? You can't go wrong with "sire."

your purchase comes to $11.23.you give the clerk a ten dollar bill and a five dollar bill.what is the proper amount of change to expect? $3.77. That will be $165, please. [.3 researched commerce calculation issue]

the court uses this standard to determine if a type of speech is protected and compares it to "yelling fire in a crowded theater." I will cut you.

can i sue my daughter for defamation on something that was posted via facebook Yes. I see no way this could go wrong. It seems productive and proportional. Do you know any good websites for shopping for a beach house?

will a judge ask you take off your hat in court? "Ask" is a bit of a softening, but yes. If you're lucky you won't get tased.

what can you sue a person for that sends you a threatening letter? Very occasionally, for declaratory relief.

could you be sued for calling someone a fat fuck in queensland/ Does Australia have laws like that? Wouldn't you just get shanked or something?

how to use lawsuit of slander and libel to shut idiot up It's going to be the most magnificent beach house ever.

if you are indicted by the feds will you be arrested That depends. Was the crime allegedly committed with a gun or with a pen or a computer? Is the AUSA in a good mood? Are you notorious enough that a perp walk would get good news coverage? Are you rich and white or poor and brown? All of these may help determine whether you get arrested or get a summons in the mail.

what kind of plaintiff lawyer do you need for death threats in california Well I find the plaintiff-side employment lawyers to be the most generally irritable but your mileage may vary.

what are the rights of the citizens against police officers You have the right to as much justice as eight people who watch Law & Order reruns and just ignored your videotaped beating feel like giving you today after the media has terrified them about how criminals will kill their children.

Lawsplainer: What Does That Controversial Mississippi Law Do, Anyway?

I have a question.

Of course you do.

Don't be rude. You've abandoned this site for weeks.  What's your issue?

I was in trial.  I apologize for not entertaining you.  What's your question?

That new law in Mississippi.  The one people call a "religious liberty" bill, either with our without scare quotes.  Does it really allow people in Mississippi to refuse to serve gay people who come into their stores?

Yes with an if, or no with a but.

That's not helpful.  So does it just let people refuse to serve customers if something about the customers offends their religious sensibilities?  

Only if their religious sensibilities arise from three narrowly defined beliefs identified in the bill.

Wait.  What?

This bill doesn't protect all religious beliefs from government intrusion.  It just protects three that the legislators like.

Which ones?

Read the bill, would you?  It's right here. Or here, if you want a pdf.

SECTION 2. The sincerely held religious beliefs or moral convictions protected by this act are the belief or conviction that:
(a) Marriage is or should be recognized as the union of one man and one woman;
(b) Sexual relations are properly reserved to such a marriage; and
(c) Male (man) or female (woman) refer to an individual's immutable biological sex as objectively determined by anatomy and genetics at time of birth.

Does the bible say something about immutable biological sex?

It may. I drifted off during Leviticus to be honest.

Wait a minute. Can the government decide to give extra protection to some religious beliefs but not others? Does that violate the Establishment Clause or the Equal Protection Clause?

As we speak, lawyers are thinking about how to argue that.

That's a copout answer.

I'm waiting for smarter people to answer it first.

So now anyone in Mississippi can refuse to serve a customer on any of those bases?

No. It's narrower than that.


Well, first of all, the bill cannot and does not purport to change federal law, so to the extent something is prohibited by federal law, it's not protected from federal intervention by this bill. The bill only protects people in Mississippi from intervention by the state of Mississippi or its cities.

Second, the bill's protections are limited to a fairly narrow range of people and activities.

Like what?

Well, Section 3(1) prohibits the state government from taking "discriminatory action" against religious organizations for doing certain things:

28 (a) Solemnizes or declines to solemnize any marriage,
29 or provides or declines to provide services, accommodations,
30 facilities, goods or privileges for a purpose related to the
31 solemnization, formation, celebration or recognition of any
32 marriage, based upon or in a manner consistent with a sincerely
33 held religious belief or moral conviction described in Section 2
34 of this act;
35 (b) Makes any employment-related decision including,
36 but not limited to, the decision whether or not to hire, terminate
37 or discipline an individual whose conduct or religious beliefs are
38 inconsistent with those of the religious organization, based upon
39 or in a manner consistent with a sincerely held religious belief
40 or moral conviction described in Section 2 of this act; or
41 (c) Makes any decision concerning the sale, rental,
42 occupancy of, or terms and conditions of occupying a dwelling or
43 other housing under its control, based upon or in a manner
44 consistent with a sincerely held religious belief or moral
45 conviction described in Section 2 of this act.

Wait. Was Mississippi trying to force priests to conduct gay weddings before?

No. Of course not. That would violate the First Amendment.

But people say that the Supreme Court decides all sorts of crazy things and that it COULD happen.

And monkeys might fly out of my butt. But there's no plausible indication that even an activist Supreme Court will apply anti-discrimination laws to religious sacraments. To the contrary, in 2012 the Supreme Court unanimously found that a "ministerial exception" prohibited a former church employee from bringing a discrimination suit against the church.

So why was the "Mississippi can't force you to perform a gay wedding" clause necessary?

To convey that gays are mean and scary, I imagine.

Is any of Section 3(1) really necessary?

Well, Section 3(1)(b) allows religious organizations to discriminate in hiring based on the three protected beliefs. That's probably a bit broader than First Amendment protections, which would only protect that choice for "ministerial" employees. So, basically, the First Amendment wouldn't allow Mississippi to fine a church for refusing to hire a gay pastor, but Mississippi could constitutionally fine a church for refusing to hire a gay custodian or receptionist. I mean, if Mississippi were ever inclined to do such a thing, which I doubt.

Also, churches that rent out their facilities to the general public could plausibly be penalized even under the First Amendment if they do so in a discriminatory manner — if they offer them to everyone except gays, for instance. So before this bill Mississippi could have punished that.

Was there a danger Mississippi was going to do that?

Of course not. But I guess maybe a town or two in Mississippi might. A lot of these state-level "religious liberty" statutes are a struggle between more conservative state-level power and more liberal local power — state legislators quashing local ordinances.

I thought conservatives liked local control?

I'm the snide one. Step back.

Okay. What else does the bill do?

Section 3(2) prohibits the Mississippi state government from taking action against religious organizations that facilitate foster care or adoption only according to the three specified beliefs. Section 3(3) says the state can't punish a foster or adoptive parent for teaching the specified religious beliefs. Section 3(4) says Mississippi can't punish people for not participating in the provision of treatments or counseling that contradict the specified beliefs.

So Mississippi is saying that the state can't punish you for refusing to help a gay couple conceive through IVF or surrogacy, for instance?

Right. In addition, Section 3(5) lets you refuse to provide a wide range of services in connection with a marriage if that marriage is against one of the specified religious beliefs:

73The state government shall not take any discriminatory
74 action against a person wholly or partially on the basis that the
75 person has provided or declined to provide the following services,
76 accommodations, facilities, goods, or privileges for a purpose
77 related to the solemnization, formation, celebration, or
78 recognition of any marriage, based upon or in a manner consistent
79 with a sincerely held religious belief or moral conviction
80 described in Section 2 of this act:
81 (a) Photography, poetry, videography, disc-jockey
82 services, wedding planning, printing, publishing or similar
83 marriage-related goods or services; or
84 (b) Floral arrangements, dress making, cake or pastry
85 artistry, assembly-hall or other wedding-venue rentals, limousine
86 or other car-service rentals, jewelry sales and services, or
87 similar marriage-related services, accommodations, facilities or
88 goods.

So. If I read that right, I can't refuse to let a gay person stay at my hotel in general, or refuse to sell a lesbian a cake in general, but I can refuse to let gays honeymoon at my hotel or sell a wedding cake for a lesbian wedding?

Right, that's what the statute purports to protect.

What if I don't want to provide a cake to a wedding reception because it's a divorced Catholic getting remarried, or because it's an interfaith wedding, and those things violate my religious beliefs?

This bill doesn't protect you, then. The Mississippi only singled out three preferred religious beliefs for protection.

Doesn't that violate the . . . .


FINE. Anything else in the bill?

Yes. Section 3(6) lets people establish gender-restricted restrooms. Section 3(7) lets public employees express the specified religious beliefs if it follows the employer's rules for expression in general or is outside of work.

Wait a minute. Don't public employees already have that right?

Why yes! I'm glad you asked. [talks for three hours.] In short, for speech on matters of public concern, a state employer can discipline public employees for speech if a balancing test finds that the employer's interest in an "orderly and efficient workplace" outweighs the employee's speech rights. Mississippi's bill arguably gives public employees broader free speech rights by allowing them to speak on these specified subjects without engaging in a balancing test about whether any disruptive effects outweigh the employee's speech rights.

So the state of Mississippi chose three specific religious doctrines, and announced a special right for public employees to articulate those specific doctrines that is broader than the right to articulate other religious doctrines and ideas?


What the fucking fuck?

Forget it Jake. It's Mississippi.

Anything else? Please say no.

Section 3(8) lets government employees opt out of issuing marriage licenses or solemnizing marriages if it offends their religious beliefs. Sections 5 and 6 lets aggrieved people sue for injunctive relief if they think that Mississippi or its localities are violating this bill.

How would you summarize this?

Mississippi's bill does not "allow anyone to discriminate against anyone," as it's been inaccurately described in the media. For the most part it only says that, if Mississippi or its cities ever had any laws protecting gays from discrimination, religious organizations and wedding vendors in Mississippi wouldn't have to follow them.

However, the spectacle of a state law that chooses very specific religious doctrines and elevates them above other doctrines and beliefs is very disturbing. As I read it, in Mississippi, a public employee could be fired for saying "discriminating against gay marriage is a sin against God, who wants us to love one another," if the disruptive effect of saying that outweighed the employee's speech. But the same public employee could not be fired for saying "gay marriage is a sin against God," even if the same balancing test showed that its disruptive impact outweighed the employee's speech rights. That's just freakish. It's not the rule of law.