Kosovo Deserves Digital Independence 

When I did my LLM in Italy, I got sat at the “Muslim Table” during a dinner. They plunked down three bottles of wine. I said “well, as long as you guys don’t mind me drinking here, I’ll be happy to be at the Muslim table.”

The guy next to me says "I can not allow an American to drink alone. May Allah forgive me.” Then we drank all the wine. Then we realized that we actually look a lot alike. Like creepily so. A long friendship was born.

He happened to be from Kosovo.

Well, anyhow, I was emailing with him, and noticed that his government email address ended in .com. I asked “what the hell is up with that?” He explained that ICANN wouldn’t give Kosovo its own ccTLD because they don't recognize it as a “real country.”

That grinds my gears.

Kosovo gained political independence, but it remains a digital vassal of its former master, Serbia. Despite Kosovo’s political independence, won through armed conflict and international diplomatic recognition, ICANN denies the new country its online independence by refusing to grant it control of its own top level domain.  ICANN’s refusal to do so does not seem to have any degree of intellectual honesty, but seems more rooted in political expediency and a desire to avoid offending Serbia (and thus by extension, Russia).  After a full exhaustive study of the legal and political issues, I published Kosovo’s Digital Independence: Time for Kosovo’s CCTLD.

In the article, I discuss the fact that this is not just a matter of national pride – although national pride should be a sufficient justification.  The real justification is that Kosovo deserves full digital independence.  A ccTLD is not merely a symbolic indicator of independence, however. Control over ccTLDs allows a nation to control an essential part of their information and technological infrastructure that can affect telecommunications, power grids, banking, and electronic surveillance. National governments recognize ccTLDs as a component of their sovereignty and a vital national interest.

Kosovo broke most other technological ties with Serbia. For example, Kosovo and Serbia agreed that Austria could apply on behalf of Kosovo for an international country calling code as part of the 2013 Brussels Agreement.  Up until 1999, Kosovo was covered by the Serbian cell phone network and used the +63 dialing code.   Without its own dialing code but with a need to distance itself from Serbian control, Kosovo could use the old Yugoslavian +381 code or could “borrow” a code from another country.   In 1999, Kosovo began using Monaco’s +377 code.   The Kosovo government essentially regards +63 as illegal since 2008 and kicked out most of the Serbian cell network.

As for its ccTLD designation, Kosovo cannot get out from under Serbia’s thumb so easily.  Kosovo continues to remain under Serbia’s ccTLD, even if as a practical matter Kosovo refuses to use it. Kosovo government websites are all on other TLDs, usually “.com” “.net” or “.org.”  While this is superior to using a hostile foreign government’s ccTLD, it places these TLDs at least partially under the laws of the United States, as they are privately administered by Verisign52 and Public Interest Registry.   Legally, if someone wanted to take action against these domains, they could do so in the Eastern District of Virginia, even though American courts would normally have no place meddling in the affairs of any other independent nation.

Ultimately, this renders Kosovo as an online anomaly. It violently broke free from Serbia, and no reasonable observer can likely see it ever returning to Serbian rule.  Since its official ccTLD remains .rs (Serbia) its online presence is still under the Serb National Internet Domain Registry.  To evade the censorship and cybersecurity issues that would arise from using “.rs,” Kosovo places its online flag in Virginia. Given the revelations of what the U.S. government and U.S. corporations consider to be fair game when it comes to surveillance and the commercial and governmental use of personal information, one might imagine that this is an inappropriate state of affairs for a self-respecting independent country.

While ICANN refuses to give Kosovo a TLD, it lacks any justifiable reason.  Is it controversial?  Of course it is.  But is it any more controversial than granting the Palestinian State its own TLD?  The Soviet Union fell decades ago, but Lenin's old empire remains active online under .su.  East Timor, before and after independence, had its own “.tp” and then “.tl.”  And, most analogously, Taiwan is at .tw, despite being recognized by fewer nations than Kosovo and both it and China continuing to maintain that it is not actually “independent.”  Finally, even insignificant specks of land like Saint Helena Island and Pitcairn Island have complete digital independence, while ICANN refuses to give it to Kosovo.

As Kosovo’s recognition as an independent state grows, Kosovo still has to struggle to fully escape Serbia’s orbit. The Declaration on Principles of International Law Concerning Friendly Relations and Co-operation Among States in Accordance with the Charter of the United Nations provides that as a matter of international law, “it is a bedrock principle that every state ‘has the right freely to choose and develop its political, social, economic and cultural systems.’”  The international and technological communities have the ability to help Kosovo along this path to full digital independence—or to at least get out of the way. Kosovo’s full and complete independence requires that it have its own country code top-level domain.

ICANN could easily remedy the situation by granting a ccTLD to Kosovo as it has done for many countries (and for a number of less- than countries) in the past. ICANN relies on its general practice of using ISO 3166-1 country codes to refute any discussion of granting Kosovo its own ccTLD, although it has also made clear that this practice is not its official standard.  Support from 111 of the UN members and the United States’ backing of Kosovo make it inexplicable that Kosovo remains without its own ccTLD.  Kosovo gained its territorial independence through armed struggle and international recognition. Objections to its independence lack intellectually honest justification, and its digital independence should not be held hostage by old Balkan rivalries. The time has come for Kosovo to be given a full seat at the Internet, international, and independence tables.

The full study of this issue can be found at Kosovo's Digital Independence: Time for Kosovo's CCTLD, Wisconsin Int’l Law Journal, http://ssrn.com/abstract=2754182 I hope you'll enjoy reading it.

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.

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.

Excerpt

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.

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.

Violence and Political Speech

I don't write the headlines

I don't write the headlines

My most recent CNN Column discusses violence in political settings. See Defend Donald Trump's right to free speech

I don't get to write my own headlines, ok?

Some good people think that sometimes being violent is ok. What they don't understand is that when we use violence in politics, no matter what, the bad people always win. They get to escalate the violence, feeding off of it, up to a point where the good people lose the stomach for it — or at least a critical mass of them lose the stomach for it.

Always.

And the bad people will always have more of a stomach for it, so in the war of attrition, they will win. They'll always be willing to bash you over the head with a truncheon for less of a reason, with more willingness to keep going long after your head looks like cherry pudding. They'll always go further on a macro level too, they're the bad guys because they're sociopaths.

No matter how right you are… if violence ensues and you win? You're probably one of the bad people. I don't care if you're protesting against the KKK or NAMBLA or the Black Panthers or ISIS or Nickleback fans.

That's kinda the point of my column:

Donald Trump finally learning about the meaning of free speech?

Other candidates might be bad for free speech once elected. But Trump is the only candidate to actually campaign to reduce our First Amendment rights. This is the guy who said, "There used to be consequences to protesting. There are none anymore. These people are so bad for our country, you have no idea, folks."

On Friday, he canceled a rally in Chicago, citing security concerns. Eyewitnesses reported that there were thousands of protesters outside, and hundreds demonstrating "in unison inside."

Even after it was canceled, there were reports of several outbreaks of violence in the streets after the speech and protesters celebrating by chanting, "We stopped Trump!"

And now, while everyone is trying to play the blame game, Trump ironically asks, "What happened to freedom of speech?"

Read the rest here.

A fabulous Roman candle exploding like a spider across the stars

kerouac

On this day in 1922, the universe lit the fuse on the roman candle of the existence of one Jean-Louis Lebris de Kérouac. Somewhere along the line after that there were girls, visions, everything; somewhere along the line the pearl was handed to him, but like so many that stand at the center when the blue light pops, the pearl drops into the grate on a street where you can still smell the last exhale of the cigarette that the guy put out as he got into the taxi.

The taxi that drove down the wet street, where most of the streetlights were still working, but that one keeps flickering, and no more taxis come and you knew none would. So you walk, and walk, until you get to that corner where there's the place down a few stairs, and you wonder if you'd rather get out of the wet and the rain and have a drink, but then you would have to be with all the other people that wanted to get out of the rain or have a drink or just be with each other.

But, maybe it would just be better to smoke a joint there, in the rain by yourself, whether any cabs came or not, because how you get there is better than wondering why, or is it the other way 'round? And as you exhale the smoke and walk past the door, you remember that the pearl dropped into the grate. And now all the grates look the same, so even if you could reach your hand down there to try and get it, you can't ever remember which one it fell into. So you just keep walking. Let someone else have the pearl or nobody else or maybe there just wasn't ever one at all.

The USPTO Would Prefer Not to Follow the First Amendment

The USPTO is, apparently, a big Melville crowd.

In December, U.S. Court of Appeals for the Federal Circuit decided In re Tam, 2015 U.S. App. LEXIS 22593 (Fed. Cir. Dec. 22, 2015). In it, the Federal Circuit made a sweeping pronouncement that the First Amendment applies to trademark registrations, and that a long-criticized prohibition on “disparaging” trademarks could no longer stand. The portion of the trademark act that fell was Section 2(a) of the Lanham Act, 15 U.S.C.S. § 1052(a).

Then, the Department of Justice conceded that § 2(a) was no longer enforceable in light of In re Tam.

We do not believe that given the breadth of the Court’s Tam decision and in view of the totality of the Court’s reasoning there, that there is any longer a reasonable basis in this Court's law for treating them differently… The reasoning of Tam requires the invalidation of § 2(a)'s prohibition against registering scandalous and immoral Trademarks as well."

One might think then, for a moment, that the USPTO would stop relying on an unconstitutional provision, no? Well, time for a literature lesson:

In Herman Melville’s classic, Bartleby the Scrivener, an attorney finds frustration with his scrivener, Bartleby. Any time Bartleby is directed to perform a task, he replies with the classic refrain: “I would prefer not to.”

The first of many such exchanges continued thus:

“Prefer not to,” echoed I, rising in high excitement, and crossing the room with a stride. “What do you mean? Are you moon-struck? I want you to help me compare this sheet here – take it,” and I thrust it towards him.
“I would prefer not to,” said he. Herman Melville, Bartleby, the Scrivener: A Story of Wall Street 10 (Dover 1990) (1853).

Initially infuriated, but beguiled by Bartleby’s charmingly passive insolence, the narrator tolerates Bartleby’s masterfully eccentric defiance, but eventually fires him. Once fired, Bartleby’s behavior becomes stranger, and he refuses to leave the premises of his employer, who finds Bartleby’s stubbornness to be an immoveable object. Bartleby’s defiance, as effective as it is, eventually leads to his undoing. Bartleby’s preference leads to his imprisonment and starvation, as he finally encounters both men and forces of nature who are unmoved by his antics.

We have, at least for the moment, a government agency that fancies itself in the role of Bartleby. The USPTO has already been instructed by the Federal Circuit that Section 2(a) (at least as far as the "disparaging" portion of it) is unconstitutional, and the case law that the USPTO has relied upon to justify its bullshit standard under the "scandalous" portion is specifically overruled.

Rumored to be the new USPTO policy director

Rumored to be the new USPTO policy director

Nevertheless, the USPTO has essentially decided "we would prefer not to" follow the Constitution.

The USPTO continues to examine applications for compliance with the scandalousness and disparagement provisions in Section 2(a) according to the existing guidance in the Trademark Manual of Examining Procedure § 1203. While the constitutionality of these provisions remains in question and subject to potential Supreme Court review, for any new applications the USPTO will issue only advisory refusals on the grounds that a mark consists of or comprises scandalous, immoral, or disparaging matter under Section 2(a). If a mark’s registrability under these provisions in Section 2(a) is the only issue, the examining attorney will identify the reasons for the advisory refusal and suspend action on the application in the first Office action. For all applications, including those initially examined before the Federal Circuit’s decision in Tam, if the examining attorney made other requirements or refusals in the first Office action, action on the application will be suspended when the application is in condition for final action on those other requirements or refusals. Any suspension of an application based on the scandalousness provision of Section 2(a) will remain in place until the Federal Circuit issues a decision in Brunetti, after which the USPTO will re-evaluate the need for further suspension. Any suspension of an application based on the disparagement provision of Section 2(a) will remain in place until at least the last of the following occurs: (1) the period to petition for a writ of certiorari (including any extensions) in Tam expires without a petition being filed; (2) a petition for certiorari is denied; or (3) certiorari is granted and the U.S. Supreme Court issues a decision. (source)

Please note, I received this document from an intellectual property lawyers' list serve, and I have not confirmed its authenticity. Nevertheless, the document properties say that the author is Christina J. Hieber, who does check out as an attorney with the USPTO's office of the solicitor. (source)

So, remember folks – the Court of Appeals for the Federal Circuit told the USPTO that it was violating the Constitution. Their position? "We don't care, we might appeal, and then again, we might not. But, until we are told that the courts really really mean it, the Constitution doesn't matter." And they think that the word "fuck" is "immoral" and "scandalous."

You know what is "immoral" and "scandalous?" A petty little bureaucrat, or group thereof, deciding that they are above the Constitution, because… well, dirty words and all.

____

If you find the issue of morality and intellectual property rights of interest, I'd be delighted if you downloaded and read my law review article on the subject. See Marc J. Randazza Freedom of Expression and Morality Based Impediments to the Enforcement of Intellectual Property Rights

Something Doesn't Click Here

freedom from freedom A Missouri professor has gotten more than her share of negative pixels this year. I actually decided after my last column on her that I was done writing about her.

Even when she claimed that her now-infamous plea for "some muscle over here" was not the real her. I resisted.

“I try to remember that’s only one moment of a full day, and only one moment in a 12-year career,” she said. (source)

And after she hired a public relations team to give her a makeover, she now claims that the real reason she got fired is because she was the scapegoat for a racist patriarchy or something. (source)

Ok, fuck it, I'll write about this idiot again.

From her recent statement:

In their decision to terminate my employment, the Curators bowed to conservative voices that seek to tarnish my stellar 12-year record at MU. Instead of disciplining me for conduct that does not “meet expectations for a University faculty member,” the Curators are punishing me for standing with students who have drawn attention to the issue of overt racism at the University of Missouri. While I have apologized on numerous occasions to numerous parties for my actions on October 10, 2015 and November 9, 2015, I will not apologize for my support of Black students who experience racism at the University of Missouri.

Yes, she expects you to believe that she got fired from a University for being too liberal.

The fact is, her actions on that one day are a great summary of her 12 year career, which is not "stellar." It is utterly useless.

But, perhaps she is right. Perhaps terminating her isn't fair. After all, she is merely a symptom of a problem, not a problem herself. The real disease is one that has infected higher education for at least a generation — political correctness, where identity politics and victim studies trump intelligence and qualifications. When that happens, again and again, what do you expect? How can you not wind up with "professors" like her?

The bats have come home to rest in the empty mental belfry of academia. In the short term, for the professor — as she was charged with assault for her misdeeds – something I disagreed with. Why? Because she was criminally charged for a mere legal trifle, even if it was an academic sin of the highest order. Firing her was the right thing to do, but what we need to realize is that she should not have been hired in the first place.

I majored in victim studies!

LET ME GET SOME VICTIM STUDIES MUSCLE OVER HERE!

Her CV indicates someone with a very shallow view of the marketplace of ideas, and someone who figured out how to game the system, but not someone who has much to offer when it comes to expanding knowledge, or just teaching students how to do anything useful.

Don't get me wrong, hers was a brilliant path for anyone who wants to get hired in social science academia. Prove your "victim studies" cred and your CV goes to the top of the pile. And therein lies the problem.

Critiques of her CV fill pages of search engine results, but this one sums it up nicely.

So who is Melissa Click? She is an Assistant Professor at Missouri and has a PhD in communication from the University of Massachusetts. What was the subject of her dissertation? “It’s ‘a good thing’: The commodification of femininity, affluence and whiteness in the Martha Stewart phenomenon.” Obviously a work of serious scholarship. Prof. Click has a “Graduate Certificate in Advanced Feminist Studies,” too. So she is well qualified to teach your children. Something. (source)

Her "scholarship" includes Making monsters: Lady Gaga, fan identification, and social media, The romanticization of abstinence: Fan response to sexual restraint in the Twilight series and “Let’s Hug It Out, Bitch”: Audience response to hegemonic masculinity in Entourage.

She's not quite finished with The trouble with Thomas: A closer look at the popular children’s Series. I presume that Thomas the Train is an agent of the Patriarchy, and railroads are a metaphor for rape culture, or something like that.*

What do you expect? She went to UMass/Amherst. I did too. Don't get me wrong, I adore the place, donate to it, and will sing its praises until my vocal cords bleed. But, to say that it is a bit of a left-wing outlier is like saying that Donald Trump can be slightly abrasive at times. Just like I know when a dear friend also has a tendency to be an asshole, I am not blind to UMass' flaws. One of them is that it often chooses political correctness over the promotion of knowledge.

While I graduated with a UMass journalism degree (which was one of the best moves ever), I spent a few semesters in a specialized major called "Social Thought and Political Economy," (STPEC) which exists only at UMass. While there, I learned just how silly this brand of left-wing thought can be. I wish I had realized, at the time, that I was seeing the early stages of terminal academic stupidity.

To me, majoring in STPEC sounded great. In some ways it was. I fancied myself a little revolutionary. I wore Che Guevara t-shirts. I smoked weed and dropped acid and went on marches and building takeovers. It might have been 1987, but the way I saw it, it was the sixties, even though it was the eighties. And, I was the first brilliant 17 year old to discover Noam Chomsky and Howard Zinn. That's a lot of college students, but this was particularly fashionable at UMass. And boy did I think I was cool.

UMass considered this to be "anti-semitic"

UMass considered this to be "anti-semitic"

Part of that juvenile thinking-I-am-cool was that I loved The Dead Kennedys (still do, but I admit that I play it at a much lower volume now). I put up a poster from them, depicted here — "Nazi Punks Fuck Off." I quickly found myself up on "civility" charges. Not because the content of my door decoration had profanity in it, that was just fine. No, it was considered to be "Anti-Semitic." When I mockingly explained the significance of the poster, the residence director explained to me that the intent of the message was irrelevant — it was how it made the anonymous complaining party feel. If they felt harassed by it, I was responsible for those emotions. I was let off with a "warning."

I took it down, since the last thing I wanted to do was make someone feel like I didn't like them because they were Jewish — even if they were an abject fucking idiot.

But that was when I realized that there was a real problem at my University. The way I saw it, I should have had every right to put up a "Hitler Rules, Fuck Yeah!" poster, if I wanted to. But, if I could not put up the opposite of that, without having committed thoughtcrime then how could we have any debate? Was the subject just off limits? More troublingly, I could express one opinion, but be held responsible for the precise opposite opinion because some fucking idiot didn't get the message?

Later, I took a writing class — "Writing for Critical Consciousness." It sounded like a great idea at the time, even if I would mock the shit out of my 19 year old self for taking it. We had a paper due, and we were allowed to work in teams. Fortunately, I had a cool partner in this project, and as we were trying to write this piece of shit, I took a toke off a bong and suggested that we just do a "word salad" of politically correct terms. We laughed our asses off as we tossed in words like "heteronormative" and "hegemonist." For about an hour, we both just typed nonsense. Complete and utter bullshit. When we were finished, we cut and pasted it into a single document, and handed it in. We just didn't give a shit.

Imagine how hard we laughed when we got an A on the paper.

This is the UMass that produced Ms. Click. That is the left-wing academia that offends even me… and I think I'm pretty far left. I believe in a 99% income tax bracket at some level. I'm all for socialized medicine. I support affirmative action (but only for descendants of slaves). I'm in favor of a huge estate tax. Hell, its a good thing I'm not in charge, because I'd probably declare martial law and drag the 400 richest Americans, parade them through the streets Chinese Cultural Revolution style, and then publicly execute them, seize everything they have, and redistribute it to the poor. Fine, I'm a lunatic. Don't let me be dictator, and everything will be fine.

But just as I learned at UMass, "political correctness" can become a parody of itself. Sometimes, like when you just word-vomit the right vocabulary, you get an A in "writing for victim studies." Other times, though, it can be scary — like when you're 18 years old and facing a panel of stern looking people telling you that your record may have something in it that brands you an anti-semitic racist, when your intent was 180 degrees the other way.

But, if you want a job in academia, that is the path. Find a way that you're a victim, wear it like VIP pass. Write about utter garbage, as long as it promotes the feminist-critical-race-theory-agenda. One by one, the "old white men" left academia, and it started getting infiltrated by these fucking morons. When they reached a critical mass, even those who completely disagree know that they need to stay quiet.

A few brave voices spoke up. For example, Professor Kenneth Lasson, penned two academic warnings – Political Correctness Askew: Excesses in the Pursuit of Minds and Manners, and Feminism Awry: Excesses in the Pursuit of Rights and Trifles. He warned that campuses were becoming places of political and social orthodoxy, and that in the end, we would all suffer. How right he was.

But, unfortunately, no one was ready to listen then. And now, it might be too late. After Click’s incident, more than a hundred of her colleagues decided that her non-apology, where she blamed everyone but herself was “good enough.”.

So now we have Melissa Click, the new and improved one, claiming essentially that she got fired because she's black… or because she "stood with" black students. I don't think anyone takes her story seriously. Well, let me correct that, her fellow victim-studies idiots will. And, unfortunately, they're now running the asylum.

But, if academia actually meant anything, she would never have been hired in the first place. She should be sent back to weep over heteronormative cis-gendered oppression in Teletubbies, and leave teaching to adults. Are there any available? Can they get past the search committee?

I hope the fuck so.

______________

*Of course, my own law review articles have, on average, something like 10 downloads, so who the fuck am I to judge? MR. JUDGY PANTS, THAT'S WHO!

Is the First Amendment safe from Donald Trump?

cnn trumpI write this as someone who was willing to vote for Trump. This gives me great pause….

Donald Trump has said a lot of strange things — some funny, some creepy, but none scarier than what he said on Friday: that if he is elected president, he will "open up our libel laws" to make it easier to sue the media and "win lots of money." No matter what you may think about his other policy ideas, if he keeps this promise, we won't be able to effectively express dissent against anything else he might want to do. We can fight any bad policy if we have a robust First Amendment.

Read the rest on CNN.