Charlie Hebdo, One Year On

It’s been just over a year since the Charlie Hebdo murders, and I thought it was time to do a little more than simply defy, although I do love that that was Ken’s way of commemorating the date.

On January 7, 2015, a group of lowlives attacked the offices of a satirical magazine for no other reason than they disliked its sense of humor. They believed that their religion trumped anyone's right to mock it. They believed that their umbrage meant that they had the right to take the lives of those who worked there.

And therein proved that their interpretation of their religion was entirely, utterly, without merit, and worthy of being mocked. And today, they still don't get it, do they?

Meanwhile, these pieces of trash continue to use violence to suppress humor. Texas, and to a much deeper extent, in Bangladesh. We can not give them what they want. We must continue to mock them, and not let a year simply calm us down and let us move on. The mockery must continue.

I do not single out Islam as worthy of disdain and mockery. I feel that way about all Abrahamic religions. They all trace their roots to an event where a guy's imaginary friend told him to kill his son, and he said "sure, sounds legit!" Then, the imaginary friend said, "just kidding, just cut off a piece of his dick to show me that you love me." He still says "sounds legit!" What the fuck else can you expect but madness after that?

I would likely feel that way about all other religions, if I learned enough about them. If you want to practice your religion, by all means, go right ahead. You can believe in a flying spaghetti monster, or a zombie Jesus, or anything else you like.

And dammit, I have the right to mock you for it.

I don't have that right because I am right. I may be dead wrong. I fully accept that if I ever die, I could be called before some supreme being who will be utterly fucking pissed at me — and if he exists, he damn well should be.

Because I mock him. I mock his followers. I mock lots of things.

As we should be able to.

Does that bother you?

Are your beliefs so fragile, so meaningless, so utterly without merit, that they cannot stand in opposition to mine?
If a “prophet” is so weak that you commit acts of violence against other people because they mock him, then your prophet is not worthy of any respect at all — let alone immunity from mockery.

If your God or your prophet can not take being mocked, then fuck your god and fuck your prophet.

I do not use the term "hero" loosely. But, Charlie Hebdo was bombed before January 7, 2015. Those who worked there knew the risks. They accepted them. And on that day, 12 of them died because they believed in something far more important than any fairy tale.

They believed in freedom of expression.

"Hero" is the right word to describe all of them.

We are only the sum of our thoughts. If the powerful or the fanatical can stop us from expressing them through coercion or violence, we are less human. We all achieve less for being here for the brief time that we get to exist on this rock.

When we got attacked on 9/11, we responded by changing who we were. We responded by curtailing our own liberties, all in the false name of "security."

Charlie Hebdo's editor-in-chief, Stephane Charbonnier once said: “I would prefer to die standing than to live on my knees.” A year ago, he died standing.

He died standing for something.

He died standing for freedom of expression.

The correct reaction to terrorism is to do exactly the opposite of what the terrorists want you to do.

I would not normally re-publish these pieces of art. I don't particularly care for them. But, if these terrorists wanted to take that right away from us by making us afraid, they have sorely failed in their attempt.

With that, I give you what these barbarians tried to take from us.

Fuck your prophet.

And Fuck you.

Je suis Charlie, et je me souviens.

loved-by-dicks

a-star-is-born

CH2

CB1

Graphic Novels and Web Comics I Put on Patrick's Reading List

Some of which he even read.

At Popehat, we  celebrate our core beliefs.  To achieve victory, one must attack.  But one cannot attack without a plan.  A plan cannot be formed without mastering fundamentals.  And nothing is more fundamental than reading.  We even think pictures occasionally enhance the experience.  As such, here's a slice of my standing list of recommendations to Patrick.  With bonus material covering Patrick's thoughts where applicable, or he can just comment in the thread like a big boy.  Waxing poetic is not my strong suit, but here goes anyway!

Planetary – Warren Ellis.  Archaeologists of the Impossible!  Planetary are an organization dedicated to charting the secret history of the twentieth century, in a world with super heroes and many other sorts of insane, fantastic things.  It's both a love letter to 5+ decades of pop culture as well as an interesting treatment of those things.  It's entire premise was based on one of those geeky exercises "if Reed Richards is the smartest person in the universe, why is Earth-616 as bad off as our own", though you'll have to read it to discover the answer (which is satisfying). Patrick started and I believe finished it and loved it.

Morning Glories – Nick Spencer.  A group of seemingly random brilliant and troubled teenagers is "invited" to attend a prestigious prep school.  There are no safe spaces at Morning Glory Academy, and I mean that literally.  You have no idea where this is going, and won't at the end of the first six issues.  Except that it's crazy and if you liked it like I did you'll be dying to know what happens next.  Though I have fallen behind (my disposable income is not unlimited, and it's not the only thing I read, I think I'm 3 or maybe 4 trades behind now), it's high up on my "things to catch up on in 2016" list.  It's a different and interesting comic and the characters are never far from my thoughts.

All Star Superman – Grant Morrison.  Widely hailed as one of the best Superman stories of all time.   If you're the sort of person that doesn't like Superman because a lot of Superman stories come off as badly written fanfic, this is a comic for you.  It's a deep and thoughtful take on a character who needs to be in deft hands but usually hasn't been.

Nextwave: Agents of Hate – Warren Ellis.  As comics matured and moved out of the silver age, a few things became inevitable.  People like Alan Moore, Neil Gaiman, and Warren Ellis showed us that comics might have started out as male power fantasies, they could be other things to.  Lots of other people tried to copy them.  Or tell "mature", "gritty", "dark", "complicated" stories.  Most people failed, and failed horribly.  What we got was often worse than mere power fantasy.  Nextwave is the polar opposite of these things, I am happy to report.  Nextwave is not, to quote, about Learning and Character Arcs and Morals and Hugs.  It is about things blowing up and people getting kicked.  It is about healing America by beating people up.  It's Stephen Chow meets vintage action Arnie at the drive in.  It features violence against broccoli, robots, sort of "other beings" and the six greatest two-page panels (lain out back to back) in the history of comics.  Did I mention explosions and kicking? It is especially about THINGS BLOWING UP and PEOPLE GETTING KICKED.  All of the delight you might have once felt when rising on Saturday morning to begin the ritual viewing of cartoons but later discovered was fake because it turned out all of those beloved cartoons were bad?1  It's real, and it exists in Nextwave.

Wytches – (Scott Snyder and Jock) – horror series that debuted this year.  What would you trade to the things out in the woods for immunity to cancer, or prolonged life (while looking young and fit)?  Their price is high.  The first trade is out, and proved to be an interesting twist on a this very old formula.

Atomic Robo – Brian Clevenger (writer and co-creator) and Scott Wegener (artist and co-creator). Now available as a free web comic (Volume 1 Chapter 1).   I guess I might try to describe Atomic Robo as a golden age comic done in a 21st century style.   It's not gritty or dark but it's gleefully ridiculous, often thoughtful, sometimes touching.  Robo and the Fightin' Scientists of Tesladyne battle evil in all it's forms throughout the decades (often with nods to the age in the process).  Features one of the greatest comic book villains ever, bar none.   If you had been 15 when finding Atomic Robo you would have immediately moved to set all of your table top gaming in it's universe (unless you were doing it in the Planetary universe instead, which is understandable).

Selling out: you can support us by purchasing any of the above through Amazon using our affiliate link over on the right.  If for some reason one of these is not available through the store let me know and we'll add it.  Or just order it on your own, that's cool too. Even better if you have a fun local place you can go through.  Tell them we said hello.

 

An Open Letter to Reuters Reporters Nate Raymond and David Ingram

Dear Mr. Raymond and Mr. Ingram:

Today you reported on the arrest of the widely-hated Martin Shkreli on securities fraud charges. You ran a picture of the "perp walk" — the once-free now-defendant being led away in handcuffs by law enforcement:

Image owned by Reuters, used for criticism and commentary, no copyright asserted.

Image owned by Reuters, used for criticism and commentary, no copyright asserted.

Here's your oblique comment about getting that sought-after shot:

Reuters witnessed Shkreli's predawn arrest at the Murray Hill Tower Apartments in midtown Manhattan. Law enforcement, including FBI agents, could be seen escorting the hoodie-clad 32-year-old into a car.

Now, it's possible that Reuters photographers were outside those apartments before dawn because of moxie and hustle. Maybe someone tipped them that a whole bunch of feds had just shown up at that building, and they put two and two together and ran right over in time for the shot. Maybe they heard coordination with the locals over police scanners.

Or maybe not.

Based on my experience with perp-walked clients2, I think the more likely scenario is that a government agent responsible for investigating and prosecuting Mr. Shkreli tipped Reuters off about the arrest — that someone told Reuters to be there to catch the perp walk.

If Reuters was there through independent investigation, then good for them. But if Reuters was there because of a tip from law enforcement, then I'd like to ask a couple of questions.

There are two subjects on which Reuters could have informed its audience, two sets of questions it could have answered:

Subject One: Who leaked the time and place of the arrest? Was it an FBI agent, a prosecutor, staff, a coordinating local cop? How high up in the government did the decision to leak the arrest go? Did the leak violate the law? Did it violate the defendant's rights? What was the government's purpose in leaking the time and place of the arrest? How does this instance fit into the pattern of which arrests get leaked and which don't? Which nonviolent defendants without records get arrested, and which get summonsed in (or self-surrender through arrangement with their lawyers), and why? What impact does a front-page picture of a defendant in handcuffs have on the jury pool? Is that impact a feature, or a bug, of leaking it? Was the leak intended to inflict extra-judicial humiliation and punishment on the defendant? If the government lies about whether or not it leaked, would you still keep it secret?

Subject Two: What would Martin Shkreli look like being led away in handcuffs?

It seems Reuters chose to address the second subject.

I don't know whether or not you two personally had a hand in accepting any leak from the government, or whether you even know what happened. But I'd still like to ask you about that choice.

Why did Reuters choose Subject Two over Subject One?

Why should I trust Reuters' reporting on criminal justice matters when it is the type of organization inclined to answer the banal tabloid question posed by Subject Two, rather than the questions contained in Subject One?

Thank you,

Ken White

Edited to add P.S.: Someone better than I at paying attention points out that the photo credit on Reuter's page gives Mr. Raymond himself the credit for the shot. So.

She's/He's Got The Jack, Do You Got a Case?

If I am ever general counsel for Taco Corp, these will be the kinds of things I guess I will have to deal with.

If I am ever general counsel for Taco Corp, these will be the kinds of things I guess I will have to deal with.

A guy went on Tinder, picked up a woman, and got herpes from her. Yeah? Why is that news? Well, the guy sued her for giving her the as-of-today incurable disease. (source) The woman knew that she had herpes, but she lied to the guy about her condition. She claims that she only thought it would be contagious during an outbreak. He is now suing her for giving him the virus.

Does he have a case? Probably.

People do bad things to one another with their genitalia. In one case I reviewed, a wife accused a husband of intentionally infecting her with an STD. Adam M. v. Christina B., 2013 Alas. LEXIS 73 (Alaska June 5, 2013). This guy went around and tried to give HIV to thousands of people — on purpose. But, lets set aside the extreme example of the Lord Jeffrey Amherst school of sexually transmitted disease transmission. That's easy. You give someone a disease, with the specific intent of giving them the disease, you're probably going to jail, and you're definitely going to be subject to tort liability.

If I were to ever put this issue on a torts exam, (and if I ever teach torts, I probably would) I wouldn't use the Tinder story. I'd probably use this AC/DC story: The AC/DC song, "The Jack" is a very thinly veiled story about a venereal disease carrier. Bon Scott had Gonorrhea, and he knew it, but he had unprotected sex with a woman just the same. Well then, she had sex with Phil Rudd (AC/DC's drummer), and she unknowingly passed it along to him. But, given the rapid succession of partners, she thought that she caught it from Rudd, so she sent him her $35 doctor's visit bill. At the next show, Scott then brought her on stage and told her that it was he who actually owed her the $35. (source) The story doesn't continue to tell us if Phil Rudd then got it from the unnamed woman (lets call her "Jackeline"), but for the sake of lawsplaining, lets presume he did.

Who owes whom?

Well, Bon Scott is right, he is likely liable to Jackeline. He had a venereal disease, yet he had unprotected sex with her, apparently without warning her so that she could either take precautions or assume the risk. Some might even call it "rape" if Scott had sex with Jackeline under false pretenses, but I'm not buying or selling that theory. Nevertheless, "you broke it, you buy it" works for The Jack too.

But, what about Phil Rudd? Jackeline gave it to him, right? Is she liable? Probably not. But what about Scott being liable to Rudd?

Normally, to be liable for transmitting an STD to someone else, you have to have actual or constructive knowledge that you're infected. Rossiter v. Evans, 2009 Iowa App. LEXIS 1720 (Iowa Ct. App. Dec. 30, 2009); McPherson v. McPherson, 712 A.2d 1043, 1046 (Me. 1998); Berner v. Caldwell, 543 So. 2d 686 (Ala. 1989).

Ok, but what about this constructive knowledge? What does that mean? "Actual knowledge" means you "actually know." "Constructive knowledge" means you know, or you should have known.

You should have known you have The Jack? The Supreme Court of Vermont addressed this in Endres v. Endres, 968 A.2d 336 (Vt. 2008). "A plaintiff will rarely be able to show that a defendant had actual knowledge of his or her infection." Therefore, constructive knowledge is enough. In California, there was a rejected argument that a defendant must have actual knowledge of the STD. John B. v. Superior Court, 38 Cal. 4th 1177, 45 Cal. Rptr. 3d 316, 137 P.3d 153 (2006) The court ruled "We are not persuaded that California should be the first jurisdiction in the country to limit liability for the negligent transmission of HIV only to those who have actual knowledge they are HIV positive.”

But, how far does this "constructive knowledge" go? Should Jackeline be liable to Rudd because she should have known she would catch something? I'd imagine that if someone is promiscuous enough that they're not even sure who gave them an STD, they are on some kind of constructive notice that they picked something up somewhere along the way, no?

No.

In Doe v. Johnson, 817 F. Supp. 1382 (W.D. Mich. 1993). A woman claimed that she got HIV from Magic Johnson. She claimed that he should have known he had it, and should have disclosed his sexual history to her prior to having sex with her. After all, his list is legendary. Nevertheless, the court did not find that such a duty existed.

I find that imposition of a duty to disclose a "high risk" lifestyle prior to sexual conduct, which theoretically puts a sex partner "at risk," would open a door better left closed. Doe v. Johnson, 817 F. Supp. 1382, 1393 (W.D. Mich. 1993)

McPherson v. McPherson, 712 A.2d 1043 (Me. 1998) dealt with a less famous party, but similar issues. In that case, a married defendant had an extra-marital affair, contracted HPV, and then gave it to his wife. Since Mr. McPherson never tested positive for HPV and never experienced any symptoms of HPV, he was on neither actual nor constructive notice of his infection. Thus, he was not liable to his ex-wife.

And more recently, a Florida Appellate court tossed out an argument that a high-risk fucker should be liable to the fuckee for any transmission of an STD. Kohl v. Kohl, 149 So. 3d 127 (Fla. 4th DCA 2014). In that case, like McPherson, Mr. Kohl was accused by his wife of sleeping around, but this time with hookers and escorts. Id at 131. This still was not enough constructive knowledge.

Therefore, unless something changes, "constructive knowledge" in this context means "constructive knowledge that you have a disease" not constructive knowledge that you've done things that someone would reasonably extrapolate makes you high-risk.

So Scott owes Jackeline, for sure. Jackeline does not owe Rudd. But, what about Scott owing Rudd, if he got an Scott's Jack from Jackeline? I have never seen a case where the plaintiff is seeking compensation for an STD that he contracted from a girl, who didn't know she had it, from the guy that gave it to her. But, under normal tort principles, such a case might be successful. If you bang someone, and you know you have a communicable disease, and you give it to them, then you should be liable for the reasonably foreseeable results of that bangage, right?

So, if the result is that you give the STD not only to Jackeline, but to your eskimo brother, that's a reasonably foreseeable occurrence.

Talking Productively About Guns

I confess from the start of this: I enjoy unproductive talk. Boasting, bloviating, berating, shouting, snarking, and swearing are all pleasures, indulged with little if any guilt. My purpose is not to condemn such behavior. How could I? We just brought on Marc Randazza and the man swears like a drunken Newark stevedore with his dick caught in a French press.

At least most of the time, I grasp that my self-indulgence doesn't accomplish much. It pleases me, it entertains like-minded people, and it reaffirms that which people already believe.

But it doesn't persuade. It neither seeks nor finds common ground.

Much of our modern American dialogue about gun rights and gun control is like that. We yell, we signal to the like-minded, we circle our wagons, we take shots at opponents. But we don't change minds. Take a look at the discussion of guns on your Facebook feed right now. Do you think it's going to build a majority on any issue?

Say we wanted to have a productive conversation. Imagine we wanted to identify our irreducible philosophical and practical differences, seek any areas of agreement, persuade anyone on the fence, and change some minds. What might we do?

Gun Talk Is Cultural Talk, And Culture Matters

First, we'd have to stop framing the debate in terms that suggest "I hate you and everyone like you. I hate how you live your life."

Most of our talk about guns is cultural signalling. We use guns as shorthand for a bundle of ideas. I saw this on my Facebook feed last week:

thiswillpersuadethem

I'm sure this felt good to the people who made it and distributed it, and to the like-minded people who saw it. But it didn't persuade anyone — other than, perhaps, a few more people to vote Republican. It's a classic example of guns-as-culture. In this bundle, guns mean Republican, guns mean conservative, guns mean not liking President Obama, guns mean religious, guns mean socially traditional, guns mean rural, guns mean football and Nascar and using fewer than five words to order coffee. The intended message may be "fuck the people who don't seriously debate gun control because they accept vast campaign donations and they are afraid of NRA-led primary attacks and who refuse to even consider whether there's something we can do about madmen spraying crowds of innocents with bullets." But your message is "fuck you and your flyover-country Daddy teaching you to shoot in the woods behind the house when you were twelve and fuck the church you went to afterwards."

This goes for both sides. Consider this, also recently popular:

admiremypersuasiveness

Your intended message may be "the government doesn't get to determine my rights based on its assessment of what I 'need," nor do fellow citizens who may arbitrarily determine I don't 'need' a wide variety of things based on their concerns." But what you are conveying is that "the people who want gun control are God-hating, kale-chewing, coastal-elite socialists who want to imprison your pastor for not marrying gays."

A lot of this is deliberate. We use culture-bundling to get out the vote, or to associate one policy position with another one. It's as American as apple pie. But is it working for you here? Reasonable gun control advocates, how far will you get with the message "a vote for reasonable gun control is a 'fuck you' to the hicks"? Gun control opponents, for how long do you think you'll thrive with "allowing gun control is like allowing gay marriage"?

If you want to culture-bundle, have fun. But don't pretend you're actually going to change anything.

Gun Terminology Matters

If we had the "reasonable gun control" I keep hearing about, what guns would be limited? I'm arguably not a complete idiot, but I can't figure it out. I hear "nobody wants to take away all your guns" a lot — which seems demonstrably false — but what guns do gun-control advocates want to take away, or restrict? Most of the time I don't know and I suspect that the advocates don't know either.

That's because there's a terminology gap. Many people advocating for gun control mangle and misuse descriptive words about guns. No doubt some of them are being deliberately ambiguous, but I think most people just haven't educated themselves on the meaning of a relatively small array of terms. That's how you get a debate framed around gibberish like "multi-automatic round weapons" and the like. You get people using "semi-automatic" and "automatic" without knowing what they mean, and you get the term "assault weapon" thrown about as if it means more than whatever we choose to make it mean, which it does not.

If you don't understand these terms already, why should you care? You should care because when you misuse them, you signal substantially broader gun restrictions than you may actually be advocating. So, for instance, if you have no idea what semi-automatic means, but you've heard it and it sounds scary, and you assume that it means some kind of machine gun, so you argue semi-automatics should be restricted, you've just conveyed that most modern handguns (save for revolvers) should be restricted, even if that's not what you meant.

It's hard to grasp the reaction of someone who understands gun terminology to someone who doesn't. So imagine we're going through one of our periodic moral panics over dogs and I'm trying to persuade you that there should be restrictions on, say, Rottweilers.

Me: I don't want to take away dog owners' rights. But we need to do something about Rottweilers.
You: So what do you propose?
Me: I just think that there should be some sort of training or restrictions on owning an attack dog.
You: Wait. What's an "attack dog?"
Me: You know what I mean. Like military dogs.
You: Huh? Rottweilers aren't military dogs. In fact "military dogs" isn't a thing. You mean like German Shepherds?
Me: Don't be ridiculous. Nobody's trying to take away your German Shepherds. But civilians shouldn't own fighting dogs.
You: I have no idea what dogs you're talking about now.
Me: You're being both picky and obtuse. You know I mean hounds.
You: What the fuck.
Me: OK, maybe not actually ::air quotes:: hounds ::air quotes::. Maybe I have the terminology wrong. I'm not obsessed with vicious dogs like you. But we can identify kinds of dogs that civilians just don't need to own.
You: Can we?

Because I'm just talking out of my ass, the impression I convey is that I want to ban some arbitrary, uninformed category of dogs that I can't articulate. Are you comfortable that my rule is going to be drawn in a principled, informed, narrow way?

So. If you'd like to persuade people to accept some sort of restrictions on guns, consider educating yourself so you understand the terminology that you're using. And if you're reacting to someone suggesting gun restrictions, and they seem to suggest something nonsensical, consider a polite question of clarification about terminology.

Rights Matter. Too Bad We Suck At Discussing Them.

Seven years ago in District of Columbia v. Heller a bare majority of the Supreme Court agreed that the Second Amendment confers an individual right to bear arms. Plenty of folks like that; plenty of folks don't. But even if we had a consensus about whether or not their interpretation is correct, we'd still be talking past each other, because we're terrible at talking about rights.

I hear "my right not to be shot outweighs your right to own a gun." This strikes me as perfectly idiotic. But it's no more idiotic than an imagined right not to be criticized or offended, which is far more popular in modern America.

We've lost the plot. We don't know where rights come from, we don't know or care from whom they protect us, we don't know how to analyze proposed restrictions to them, and brick by brick we've built a culture that scorns rights in the face of real or imagined risks. It is therefore inevitable that talk about Second Amendment rights will be met with scorn or shrugs, and that discussions of what restrictions on rights are permissible will be mushy and unprincipled.

Last night the President of the United States — the President of the United States — suggested that people should be deprived of Second Amendment rights if the government, using secret criteria, in a secret process using secret facts, puts them onto a list that is almost entirely free of due process or judicial review. Because we're afraid, because they could be dangerous was his only justification; he didn't engage the due process issue at all. But he was merely sauntering down a smooth, comfortable, well-lit road paved by most Republicans and Democrats before him since the rise of "tough on crime" rhetoric and especially since 9/11. The President — and other Democrats — may hope that Americans will trust progressives not to overreach in restricting rights. That hope is patently misplaced; Democrats and mainstream progressives haven't been worth a squirt of hot piss on due process or criminal justice rights for more than a generation. In the Great War on Terror and the Great War on Drugs, they're like Bill Murray in Stripes: mildly counter-cultural and occasionally a little mouthy but enthusiastically using the same weapons in the same fight against the same perceived enemy.

And Republicans! Don't get me started. You can't sneer at constitutional rights for a decade and a half and then expect them to be a credible shield when you abruptly decide they matter again. With few exceptions, Republicans arguing about Second Amendment rights resemble a kid becoming a sudden rules-lawyer halfway through a game of Calvinball.

Gun control opponents complain that gun control advocates don't respect their rights and don't seriously engage the topic of rights. Fair enough. But that conversation can't happen until we make an effort to repair how we talk about constitutional rights in general. We might even improve how we address the philosophical underpinnings of our entire society while we're at it.

If a prominent gun control opponent said, "I've made some mistakes since 9/11. Here they are. Here's how I'm going to avoid them in the future. And here's why I don't want to make them again on guns," I would listen very carefully to that person's arguments. If a prominent gun control advocate said "here's how we've fallen down on respecting rights since 9/11. Here's how we can approach this problem in a way that respects rights that can be a model for governing in the face of danger and fear in general," I would listen.

But if you just want to vent? I've got Facebook for that, thanks.

Please Welcome Marc Randazza to Popehat

You may be entering a world of pain, readers.

You may be entering a world of pain, readers.

Long-time Popehat readers are familiar with Marc Randazza, First Amendment badass whose efforts to defend free speech are a frequent subject here.

Now we're very pleased to welcome Marc as a Popehat co-author. He may still blog at Legal Satyricon and CNN on occasion, but watch for his posts on First Amendment and cultural issues here.

Full disclosure: Marc is both a friend and a client, and has sometimes represented me as well. Though we may still occasionally cover his cases, the fact that he's a blogger here now will likely change the nature and tone of coverage, as as we tend to be more sparing in covering my cases.

Please join me in welcoming Randazza.

Turkish President Erdoğan’s Precious (Feelings)

Popehat is pleased to offer a guest post by Sarah McLaughlin. Sarah works for the Foundation for Individual Rights in Education (though the opinions expressed here are her own) and is interested in free speech and civil liberties. You can follow her on Twitter at @sarahemclaugh.

Turkey’s President Recep Tayyip Erdoğan, who, I’m legally required to state3, is not now and never has been employed as a Gollum impersonator, is doing a great job supporting the argument that the amount of power a leader has at his disposal is inversely related to his ability to tolerate “insults” or dissent.

At a September press conference, Erdoğan’s spokesperson Ibrahim Kalin claimed “there is a vibrant environment of debate in Turkey,” and said that it’s “never possible to consider insulting the presidential office within freedom of expression.” Although that statement is completely laughable, it was not a joke—Turkey does seriously crack down on “insults” to President Erdoğan, who, I repeat, is not one of the River-folk and has at no point been accused of murdering the hobbit Déagol.

The most recent example of Erdoğan’s tendency to overreact to insults is… precious.4 Today's Zaman reports that a Turkish court has “demanded an expert examination to investigate Gollum's character to decide whether a comparison with him is an insult,” after Dr. Bilgin Ciftci, who has now been fired from Public Health Institution of Turkey, shared this meme:

Btpd6kHIMAEMfVB

Ciftci has already attended four hearings over this picture, and will have to suffer through another on February 12 because the judge admitted he hadn’t seen the films, and wasn’t sure if the comparison to The Lord of the Rings character Gollum constitutes an insult. To help him find answers to this very important question5, he put together “an expert panel, which will reportedly include two academics, two behavioural experts and an expert on cinema and television productions.” So in addition to deciding whether or not Ciftci will spend time in prison, potentially two years, a Turkish court will be responsible for taking a position on Gollum’s moral worth. Talk about government overreach.

If they were to ask for my opinion, which I note, they’re not6, I would tell them that, considering the fact that Erdoğan, unlike Gollum, doesn't have a magic ring’s influence as justification for the way he acts, Erdoğan should be grateful for the comparison. Gollum is a complex, tormented character whose struggle against himself elicits the reader’s pity, rather than hatred. Erdoğan is a president who throws tantrums because people tease him online. I would also tell them that a major difference between the two is that Gollum, although obsessed with and in love with the ring and the power it offered, hated himself for it. Although he has good cause to do so, Erdoğan, from what I can tell, doesn’t seem to share Gollum’s sense of self-loathing.
In short, it’s not Erdoğan who is insulted by this comparison—it’s Gollum.

You don’t have to look hard to find more stories like this. A hearing will be held this month to determine the guilt of two children, ages 12 and 13, who were charged with insulting the president after they were caught tearing down posters of Erdoğan in October. Today’s Zaman reports that they could face up to four years in a juvenile facility. That same month, Turkish police arrested a 14 year old boy for allegedly insulting Erdoğan on Facebook. He spent a night in jail and was released the next day. Also in October, police detained Today’s Zaman editor-in-chief Bulent Kenes under this “previously seldom-used law,” claiming his tweets constituted insults to Erdoğan, who, again, is not a small, slimy creature who bit off Frodo Baggins’ finger in a final attempt to regain ownership of the One Ring. Kenes pushed back, arguing that he was simply exercising his rights. That’s just a few reports from one month. These are not isolated incidents.

And it’s not just “insults” that can get you in trouble. Two columnists accused of “openly denigrating the religious values of a part of the population” and “openly inciting groups of the population to breed enmity and hatred towards one another" for reprinting Charlie Hebdo’s post-attack cover of Muhammad will face a hearing next month (they failed to show up at the last hearing) and could face up to 4.5 years in prison if found guilty. In June, Erdoğan threatened to have a reporter “jailed for life” for publishing footage of Turkey’s state intelligence agency giving weapons to Syrian rebels. Last year, a Turkish woman was arrested for tweeting a picture of herself standing on a Quran in red stilettos, after being reported to police by Melih Gokce7, the mayor of Ankara, who claimed that "no one has a right to insult our religion." Last month, The European Commission published a report on human rights in Turkey, noting the “serious backsliding” on freedom of expression in the last two years; “Ongoing and new criminal cases against journalists, writers or social media users, intimidation of journalists and media outlets as well as the authorities' actions curtailing freedom of media are of considerable concern.”

It doesn’t really matter what kind of character Gollum is. The bigger issue here is the fact that innocent people could spend years in jail because they incurred the wrath of a very sensitive president. In The Lord of the Rings, Tolkien wrote: “All we have to decide is what to do with the time that is given us.” Erdoğan has decided to spend his time using his country’s courts and police force as weapons against anyone, including teenagers, willing to voice even the mildest criticism against him. He deserves all the insults he gets.

Bold Startup Dryvyng Brings Robust American Values To Ridesharing

TUSCON, ARIZONA ARBY'S PARKING LOT (AP): All internet entrepreneurs know they face obstacles. But few can identify those obstacles as specifically as Craig Brittain and Chance Trahan, the minds behind aspiring Uber-killer app Dryvyng.

"Bitches," Brittain says. Trahan nods, his matte-black tribal tunnel plugs swaying approvingly.

"Bitches and Obama, basically."

The two men seem ready to meet the challenge as they ready their innovative startup. Brittain, Dryvyng's CEO, brings extensive experience with the intersection of transportation, commerce, and government. Trahan, Dryvyng's branding maven, is an expert at identifying and incorporating existing successful marketing strategies. Together with legal guru and silent partner David Blade (known to friends and foes alike as "The Hammer"), these young men want to revolutionize ridesharing by rescuing it from feminists, Obama supporters, and other Social Justice Warriors.

How will they do it? Though efficiency, top-notch management skills, and a principled refusal to recognize domestic laws, regulations, or courts. "Lots of startups have problems with investors," said Brittain. "We never will. First of all most investors are fucking idiots. Second, if investors sue us, they'll be wasting their time and money. The sovereign state of Great Brittain does not recognize the so-called American courts. Government contract enforcement is tyranny."

"Also, Great Brittain needs women," Brittain added.

Brittain and Trahan plan to distinguish Dryvying from its competitors through innovative pricing and payment models. "Customers can pay for rides with ten different kinds of cryptocurrency, with nude pictures of exes, and with goatee maintenance equipment," noted Brittain. And there will be innovative pricing to match. "If you pay our base rate, we keep the right to sell information about where you went and who you were with," said Trahan. "For a 25% surcharge, David Blade will keep that information confidential." Brittain also noted that suitable riders can also reduce their rates though participation in photography projects that may lead to lucrative modeling contracts. But that's not the end of the revenue streams. "At first we were live-streaming Chance Trahan's music in the cars as a branding technique," said Brittain. "But then we realized: why give value away? And why put up with all these complaints and claims of 'distraction' and 'convulsions'? If you have value, get value. So now, if you don't want to listen to Chance's music in the cars, you have to pay another 30%."

"We get a 99% buy-in rate on that one," Brittain bragged.

Market segmentation is another key. "Uber and Lyft don't know what they're doing," Brittain boasts. "They market to anyone. We don't. We're not looking for colorful riders, if you know what I mean. We're looking for classy riders. And we know what they want. Take GamerGate. We're going to be huge with GamerGate fans. We defy SJWs, we let you play games in our cars. We'll let you vape. You can vape like a motherfucker, dude. We have Trilby racks. We're looking into installing backseat laptops so you can keep up with internet debates. They'll have macros for "RICO" and "cunt" and all the terms you need. Why would you ride with anyone else?"

But can you trust their drivers? Many consumers have horror stories of rude or creepy encounters with at the hands of Uber or various taxi services. "Absolutely, man," says Trahan. "Look: we vouch for these drivers. They're vetted. They're clean. They are post-probation. They run in the same social circles we do — that's how you know you can trust them."

"It's all about character. That's how you know how well we'll do. Because character is destiny."

Florida Judge Orders Palm Beach Post To Remove Transcripts Of Calls Made By 'Jailhouse Lawyer'

Judge Jack Schramm Cox, a Florida state court judge in Palm Beach, has ordered the Palm Beach Post to remove transcripts from an October article documenting a convicted murderer's habit of acting as a 'jailhouse lawyer' to solicit confessions from fellow inmates, which he promptly turns over to prosecutors and law enforcement.  The order — which the Post complied with — runs afoul of the First Amendment, an obstacle that Judge Cox's order passes over without so much as a mention.

Unfortunately, I am unable to locate a copy of the full transcripts themselves, which the Post has removed from its website.  A Google cache of the article, before the court issued its order, reveals the two paragraphs that the Post removed because they included quotations from the transcripts:

“I’m so important to these people,” he crowed in a recorded jail conversation with his daughter last year. “I’m the only person in the United States’ history that could ever provide testimony that could close over 60 murder cases, you hear me? I know a lot, sweetie. I’m gonna sit down and write a book about all these different murders and what happened and how they happened. Cause I know the law real good. I’m real sharp with the law.”

[…]

“I done worked out a deal to reduce my sentence and for me to come home, you understand me?” he told his daughter in another conversation recorded from the county jail in November.

But where, oh where, did these transcripts come from?  Surely, the Post's First Amendment rights are surrendered because it engaged in some unlawful act?

The court's order suggests — without directly saying as much or providing any evidence in support — that the Post may have acquired these transcripts as a result of the grapevine:

"The Palm Beach Post [indicated] they were in possession of the recorded calls and that it had posted the transcripts of these recordings on its website[.]  The memorandum indicates that copies of the recorded calls have been circulated amongst certain members of the legal community.  It is uncertain to this Court who distributed that information.  […] It is of some note that the Palm Beach County Sheriff's Office nor the Office of the Public Defender attended the hearing.

How the Office of the Public Defender came in to possession of the recorded calls […] is of great concern to this Court.  Mr. Cobia [the informant whose calls were recorded] argues that they were not provided to [his defense attorneys] as a part of pretrial discovery and were not disclosed by [the Palm Beach Sheriff's Office] as a public record."

The court then answers its own question in the wind:

"The calls appear to have become a part of the court record as a result of Ms. Ramsey, counsel for Smith, filing them in the court file on October 15, 2015."

Indeed, the Post itself has noted that the transcripts were part of the public record.  (Smith is the defendant who filed the transcripts with the court; Cobia, the informant, is expected to testify against Smith.)

Nevertheless, the court's focus is on the point of origin, concluding that only the government could have recorded the calls.  Out of concern for the privacy of the jailhouse snitch — who acted as a jailhouse 'lawyer' to gain the confidence of other residents of the jail in order to betray their privacy interests, however limited — the court found this invasion sufficient to compel a newspaper to stop publishing what's already been published.

But none of this matters, at least as far as the Post's publication is concerned.  The Post could have acquired the recordings or transcripts from a court clerk, a defense attorney, the sheriff's office, or as a result of selling their own souls to a questionable character at a highway interchange in Rosedale, Mississippi.  Where a media outlet obtains information lawfully — even if it knew that their source obtained it unlawfully — the First Amendment protects the media outlet's right to publish that information.  Nor does an individual's privacy interest override a newspaper's right to publish truthful information included in a court record.  If a rape victim's privacy interest is insufficient to vitiate a media outlet's First Amendment rights, the privacy interest of a jailhouse informant, speaking on a phone call he knew would be recorded and could be used against him, is underwhelming as a justification.

It may well be that law enforcement betrayed Cobia as a confidante, deterring others from similarly reporting on what their fellow detainees have told them.  It may well be that even were Cobia not an informant, Florida's authorities invaded his privacy.  But the solution is not to prevent a newspaper from substantiating its reporting, which reveals the unreliable and self-interested nature of informant testimony.

The Post is appealing the ruling.