Popehat Signal: Help Defend A Seuss-Trek Parody Under Fair Use

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

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

It's time to light the Popehat Signal to seek pro bono legal help to defend the weak against the strong.

The strong party in this case is Dr. Seuss Enterprises, L.P., which holds the intellectual property of the late Theodor Seuss Geisel, better known as Dr. Seuss. Seuss Enterprises is represented by megafirm DLA Piper, practiced sender of threatening letters.

The weak party is a team that put together a Kickstarter for a Seuss-Trek parody. Writer, editor and illustrator Glenn Hauman put the team together through his company ComicMixLLC. He brought together science fiction writer David Gerrold, who is personally responsible for both tribbles AND Sleestacks, and Ty Templeton, an experienced comic book artist. The concept — a a Star Trek parody called "Oh, The Places You'll Boldly Go" — looked brilliant and delightful:

Gorn

But DLA Piper sent a threat letter on behalf of Seuss Enterprises and Kickstarter took the page down and froze the money they made, and Seuss Enterprises continues to threaten a lawsuit.

The key issue here is Fair Use. Fair Use is a defense to copyright infringement. It applies when you quote a column to criticize it, or post a picture to report on it, or invoke the language and characters of a work to satirize it. It has good and bad aspects. The good: its protection for criticism, comment, satire, and parody is quite broad. The bad: its key elements are subjective and lack bright lines. That means it is rarely possible to use the Fair Use defense to get out of litigation early; usually you've got to litigate all the way to summary judgment or even trial. That's financially ruinous, exhausting, stressful, and life-consuming.

I believe this project is protected by Fair Use. Under the first relevant factor, it's "transformative," in that it adds a new message or meaning to Dr. Seuss's work. It doesn't merely offer a Star Trek episode in Dr. Seuss style; rather, it uses the style to comment on and contrast the Stark Trek and Seuss sensibilities and styles. With respect to the "substantiality" factor, the parody only uses Seuss's recognizable and oft-parodied style; it does not copy actual art or story lines. With respect to the last factor, the work doesn't harm the market for Seuss's work. In other words, people won't buy less Seuss because they bought this parody.

But I don't decree the outcomes of cases, yet. Seuss Enterprises will continue to use a large team of very capable and well-supported lawyers to threaten the authors here, shut down their Kickstarter, and very likely sue them unless they abandon their work. The authors don't have access to the frozen Kickstarter funds and are not in a position to spend what it takes to go up against DLA Piper. Absent intervention, this case will be determined not on its merits, but by raw power — one side has money to bury the other side.

That's not right. This case — the case of a delightful and inventive Trek/Seuss parody that fans will enjoy — ought to be determined through a fair and neutral application of Fair Use principles, not by rout and default.

We can't fix every unfair case. But you can help fix this one. Are you an attorney who practices copyright law? Are you willing to step up and offer pro bono help in a fun, geeky Fair Use case to protect parody from money? Then please consider reaching out, the more of you the better. These guys need help. If you like the Kickstarter model, if you like creative people putting together amazing teams like this and providing entertainment through satire, people need to step up to preserve it. If you're interested, drop me a line at ken at popehat etc.

Rejoice: The 9th Circuit Fixed its Octane Fitness Problem

1117 OCTANEUnder the Lanham Act, a prevailing party can get its attorneys' fees from the losing party in "exceptional cases." 15 U.S.C. § 1117(a). While this is interesting enough in the trademark and false advertising litigation context, it also has some application to SLAPP suits — at least when the plaintiff tries to play games with the Lanham Act.

So lets start with the Lanham Act's fee provision — giving us fees in "exceptional" cases.

What does "exceptional" mean?

Well, that depends.

It used to be that "an exceptional case" was "one that can be characterized as malicious, fraudulent, deliberate and willful . . . or one in which evidence of fraud or bad faith exists." See, e.g., Tire Kingdom, Inc., v. Morgan Tire & Auto, Inc., 253 F.3d 1332, 1335 (11th Cir. 2001). However, it was an abuse of discretion standard, so whether a court granted you fees in a Lanham Act case or not, it was still up to the trial judge, and there wasn't much you could do about it on appeal. The court would often look at the degree of willfulness of any infringement, or if the defendant won, the plaintiff's conduct in bringing the lawsuit, and how the plaintiff comported itself during the case.

The Patent Act has a similar provision for fees (§285). Under that, the Federal Circuit held that patent litigants could only recover attorney's fees under § 285 if prove by clear and convincing evidence that there was (1) litigation-related misconduct that is independently sanctionable or (2) a suit brought in subjective bad faith that is objectively baseless. See Brooks Furniture Mfg., Inc. v. Dutailier Int'l, Inc., 393 F.3d 1378, 1381 (Fed. Cir. 2005). That is a pretty high standard, so most defendants were screwed.

In Octane Fitness, LLC v. Icon Health and Fitness, Inc., 134 S. Ct. 1749 (2014) the Supreme Court threw out that standard under the Patent Act. The Court held that "exceptional" was a much broader term than this. It held that the "standard articulated by the Federal Circuit was an inflexible framework superimposed onto statutory text that is inherently flexible." Baker v. DeShong, 821 F.3d 620, 622-623 (5th Cir. 2016) (citing Octane Fitness at 1756).

In crafting its view, the Supreme Court recycled some logic from how the D.C. Circuit interpreted the Lanham Act's fee provisions, since the Patent Act and Lanham Act fee shifting sections are identical, largely based upon each other, and thus should be interpreted the same way. It then held that "Something less than 'bad faith' suffices to mark a case as 'exceptional.'" Octane Fitness, 134 S. Ct. at 1757 (quoting Noxell Corp. v. Firehouse No. 1 Bar-B-Que Rest., 771 F.2d 521, 526 (D.C. Cir. 1985)).

Under the Octane standard (imported from Noxell) "exceptional" means a case that "stands out from others with respect to the substantive strength of a party's litigating position (considering both the governing law and the facts of the case) or the unreasonable manner in which the case was litigated." Octane Fitness at 1756.

With that new standard set for Patent cases, it was fairly obvious to most people who had their heads out of their asses that it equally applied to Lanham Act cases. District court after district court applied Octane's standard to Lanham Act cases, and the Third, Fourth, Fifth, and Sixth Circuits followed suit. See Baker v. DeShong, 821 F.3d 620, 621–25 (5th Cir. 2016) (handled by my partner, Gill Sperlein, and my hero, Paul Levy); Georgia- Pacific Consumer Prods. LP v. von Drehle Corp., 781 F.3d 710, 720 (4th Cir. 2015), as amended (Apr. 15, 2015); Slep-Tone Entm’t Corp. v. Karaoke Kandy Store, Inc., 782 F.3d 313, 317–18 (6th Cir. 2015); Fair Wind Sailing, Inc. v. Dempster, 764 F.3d 303, 313–15 (3d Cir. 2014). The 11th has not yet spoken on it, but a legion of its district courts have followed the Octane standard in Lanham Act cases. See, e.g., Donut Joe's, Inc. v. Interveston Food Servs., LLC, 116 F. Supp. 3d 1290 (N.D. Ala. 2015); ADT, LLC v. Alarm Prot. Tech. Fla., LLC, 2016 U.S. Dist. LEXIS 146226 (S.D.Fla. Oct 20, 2016).

Only the Second and Seventh Circuits have applied the earlier standard, but their cases didn't mention the Octane Fitness case. See Merck Eprova AG v. Gnosis S.p.A., 760 F.3d 247, 265–66 (2d Cir. 2014); Burford v. Accounting Practice Sales, Inc., 786 F.3d 582, 588 (7th Cir. 2015). So, either the parties failed to raise it, or the clerks weren't keeping up.

Similarly, the 9th Circuit seemed stuck on the old standard in SunEarth, Inc. v. Sun Earth Solar Power Co., 650 Fed. Appx. 473 (9th Cir. 2016). However, in that case, again, they just didn't mention Octane Fitness at all. Therefore, it did not appear that they were disagreeing with applying Octane to Lanham Act claims, but just that the briefing was done when Octane came out, so nobody bothered to mention it. Meanwhile, lower courts in the 9th Circuit did the obvious thing, and applied it. See, e.g., Apple Inc. v. Samsung Electronics Co., No. 11-CV-01846 (N.D. Cal. Aug. 20, 2014); Perfect 10, Inc. v. Giganews, Inc., No. CV 11-07098-AB (C.D. Cal. Mar. 24, 2015); Albrecht v. Tkachenko, No. 14-cv-05442-VC (N.D. Cal. May 11, 2015).

But, the SunEarth decision left it open, at least in the minds of some, that the 9th Circuit implicitly rejected Octane in the Lanham Act context.

Well, the 9th finally cleared that up in an en banc decision issued yesterday. Sunearth, Inc. v. Sun Earth Solar Power Co., 2016 U.S. App. LEXIS 19083 (9th Cir. 24 Oct. 2016).

This is great news for trademark litigators in the 9th, since we can all breathe a sigh of relief that the 9th wasn't simply ignoring Octane Fitness. But, this decision (along with all of the cases adopting Octane in the Lanham context) is a good thing for free speech advocates.

Why?

Because some lawyers think they've found a clever way around First Amendment protections by repackaging defamation claims as Lanham Act claims. In fact, I've worked on one recently. In Tobinick v. Novella, 142 F.Supp.3d 1275 (SD Fla. 2015) the court didn't buy the theory that scientific debate equals commercial speech. Then, the Court granted our fee request under the Lanham Act, applying the Octane standard. Tobinick has appealed both of those rulings (as well as an order where the Court applied the California Anti-SLAPP law to the California plaintiff's claims). So, we may have an Octane/Lanham ruling out of the 11th Circuit soon enough.

Therefore, while we still don't have a nationwide Anti-SLAPP law (although I have written about the need for one), we can (and should) use 15 U.S.C. § 1117's fee shifting provision when plaintiffs try to use the Lanham Act as a tool of censorship.

Lawsplainer: The Ninth Circuit and Compelled Speech About Abortion

I have a question about that abortion decision out of the Ninth Circuit last week.

You can't see me so I'm not here.

I can see you fine. You're . . . are you hiding under your desk?

Just until mid-November.

Come out. You're embarrassing both of us.

I want to stay here. It's safe. I have snacks.

You're an adult and a law firm partner for God's sake.

It doesn't smell great under here to be perfectly honest.

Look, just explain the Ninth Circuit decision to me, will you? I hear that the court forced pro-life clinics to tell people how to get abortions. How is that constitutional?

Well, that's not exactly right.

So what's the case about? Who sued who?

FINE.

The case is called National Institute of Family and Life Advocates and a whole bunch of others versus Kamela Harris, Attorney General and really awful Senatorial Candidate and other miscreants.

I don't believe that's what it's actually called.

It's close enough. Anyway, the case is about a 2015 California law called "the FACT Act." The law modified California's Health and Safety Code to require "licensed covered facilities" in California to provide patients with information about free family planning, prenatal care, and abortion programs. It required unlicensed clinics to state that they are unlicensed.

What's a "licensed covered facility"?

It's very broadly defined. It's any licensed clinic with a "primary purpose is providing family planning or pregnancy-related services" that does at least two of the following:

(1) The facility offers obstetric ultrasounds, obstetric
sonograms, or prenatal care to pregnant women.
(2) The facility provides, or offers counseling about,
contraception or contraceptive methods.
(3) The facility offers pregnancy testing or pregnancy diagnosis.
(4) The facility advertises or solicits patrons with offers to
provide prenatal sonography, pregnancy tests, or pregnancy options
counseling.
(5) The facility offers abortion services.
(6) The facility has staff or volunteers who collect health
information from clients.

"Unlicensed clinics" includes unlicensed facilities that offer at least two of items (1), (3), (4), and (6) on that list.

So it could be just a pregnancy counseling clinic that advertises pregnancy counseling.

Correct. The California legislature explicitly targeted the law at "crisis pregnancy centers," which the Legislature claims "pose as full-service women's health clinics, but aim to discourage and prevent women from seeking abortions."

So how did the case get to court?

Three religious nonprofit organizations that operate pregnancy counseling clinics sued the state. They said that the law compelled them to give information that contradicted their beliefs — specifically, a roadmap to how to get an abortion with public funding — in violation of their First Amendment rights. They sought a preliminary injunction against enforcement of the law. The trial court denied their claim, and they appealed to the Ninth Circuit.

What did the Ninth Circuit do?

The Ninth Circuit agreed that they weren't entitled to an injunction because the law didn't violate their First Amendment rights.

But doesn't the law force religious clinics that only offer counseling to engage in compelled speech directing people to abortion services? How did the court get there?

Well, first the court had to decide that the issue was ripe — that the plaintiffs could sue to enjoin the law before California ever tried to enforce it. Federal courts can't just take up any issue and decide it; they're only empowered to decide issues when there is an actual present "case or controversy." Here, the Ninth Circuit found that because plaintiffs said they would not comply with the law, which would subject them to civil penalties under it. That was enough to elevate this above a mere hypothetical dispute.

The rest of the case turned on what level of scrutiny the court selected.

What the hell does that mean?

When a court applies scrutiny, it's holding the government's justification for a challenged law to a standard. How tough the standard is depends on the nature of the law and how the plaintiff says it's defective. In some situations, courts apply strict scrutiny — for instance, laws that punish speech based on its content generally trigger strict scrutiny. If a court applies strict scrutiny, the government must show that the law in question serves a compelling government interest and is narrowly tailored to achieve that interest. Practically speaking, applying strict scrutiny almost always means that the court will strike down the law.

In the middle you've got intermediate scrutiny, which requires the government to show that the law promotes an important government interest and is substantially related to that interest. At the low end you've got the "rational basis" test, which almost any law can pass.

So by deciding the level of scrutiny you apply, you're usually deciding the case?

Exactly.

How do courts decide what level of scrutiny to apply in free speech challenges?

Courts usually do so categorically — they decide whether the speech falls within certain established categories that trigger strict or lower scrutiny. So, for instance, here the Ninth Circuit found that the law fell into the category of "professional speech,", it triggers only intermediate scrutiny.

To do that, the Ninth Circuit had to decide that the law was viewpoint-neutral. The law is already content-based — that is, it regulates speech based on its content by requiring speakers to say certain things. Content-based speech regulation often — usually — triggers strict scrutiny. But here the court said that while the law is content-based, it's viewpoint-neutral — that is, it does not discriminate based on one particular opinion or view, and applies to all clinics regardless of how they feel about abortion.

But it compels speech that supports abortion by forcing clinics to tell patients how to seek abortion services. Isn't that a viewpoint? And didn't you say that the legislature specifically passed the law to target anti-abortion clinic?

Well, yes. The "viewpoint neutral" argument seems odd here. Under the Ninth Circuit's logic you could compel any statement so long as you compelled it for everyone equally — both people who agreed with it and people who disagreed. I'm not sure that's right. By comparison, the Supreme Court in Wooley v. Maynard struck down a New Hampshire law requiring everyone to have "Live Free or Die" on their license plates, even though the law compelled everyone to do so whether they agreed with the sentiment or not. I think the better argument is that the compelled speech here is informational and about an area — medical services — generally regulated by the government.

That's the "professional speech" category?

Yes. It's not a new idea. Generally courts treat "professional speech" — especially by health care professionals — differently than other speech. The Eleventh Circuit let Florida prohibit its doctors from pestering patients about their guns on the grounds that it was a regulation of professional speech as opposed to expressive speech, and the Ninth Circuit used the theory to uphold another California law limiting so-called "conversion therapy" that purports to turn gay people straight. And way back in 1992, the Supreme Court suggested that "reasonable licensing and regulation" by states could require doctors to provide accurate information about abortion.

The Ninth Circuit concluded that here, as in other "professional speech" cases, intermediate scrutiny was appropriate, and found that the law passed that test because the state has an important government interest in women getting accurate and complete pregnancy information, and that the law was tailored to that end. Put another way, the court said that licensed clinics are not a "soapbox" — that they are vehicles for state-regulated services to patients, not for speech. The court also noted that requiring unlicensed clinics to say they are unlicensed would survive any level of scrutiny.

Crucial to the court's analysis is the fact that the compelled speech about public abortion services only applies to clinics that have sought and obtained state licensing as health clinics. You can run an unlicensed pregnancy counseling center and tell patients whatever you want about pregnancy and abortion; you just have to disclose that you're not licensed by the state.

Will this ruling survive if it goes to the Supreme Court?

Probably, although not certainly. A couple of other circuits have upheld similar laws on similar grounds, and the 1992 Casey decision (convoluted and divided as it is) seems to support the "professional speech" category. But in 2015, the Supreme Court issued a decision in Reed v. Town of Gilbert that could be summarized as "when we say content-based laws trigger strict scrutiny, we mean it." If the Supreme Court holds that line as aggressively as Reed suggests, it's possible they could reject the "professional speech" category.

But I don't think they will. It would (for better or worse) throw most professional regulation into utter chaos. Most regulation of most professionals involves, to some extent, requiring disclosures to clients.

So do you think this case is outrageous?

Outrageous? Well, no, because it only purports to regulate licensed clinics. If it tried to regulate unlicensed organizations that offered counseling, that would be outrageous and obviously unconstitutional. I would say, instead, that the law illustrates the inherent tension between free speech and government regulation of professions. Also, it illustrates how free speech analysis proceeds in a categorical fashion — how deciding what category we put speech in drives the outcome of our analysis, as it does in politics.

Is Trump Really "Libel Proof?"

Is Trump really a “Libel-proof” Plaintiff?

Donald Trump threatened to sue the New York Times for defamation based on a Times story about women accusing him of sexually assaulting them. In responding to this threat, the Times denies that there is anything defamatory about its article and mentions that “[n]othing in our article has had the slightest effect on the reputation that Mr. Trump, through his own words and actions, has already created for himself.” The Times may be right about that, but it’s far from a foregone conclusion. And, in a mad dash to virtue signal, "experts" all rushed to refer to Trump as "libel proof."

There is such a thing as a “libel-proof” plaintiff. These are people whose reputations are so fiddle-fucked that you can literally say anything you want about them. A California federal court defined this type of plaintiff as “[a]n individual who engages in certain anti-social or criminal behavior and suffers a diminished reputation may be ‘libel proof’ as a matter of law, as it relates to that specific behavior . . . . By extension, if an individual’s general reputation is bad, he is libel proof on all matters.” Wynberg v. Nat’l Enquirer, 564 F. Supp. 924, 928 (C.D. Cal. 1982).

Traditionally, this doctrine has been applied to plaintiffs who have a reputation for criminal conduct. The seminal case of Cardillo v. Doubleday & Co., 518 F.2d 638 (2d Cir. 1975) dealt with a book published about Cardillo, who was serving time for his involvement in several criminal enterprises. The book got some details wrong, and Cardillo sued for defamation. The court found that, with Cardillo’s reputation already so tarnished by his criminal history, the contents of the book could not have caused any real harm to his reputation. Fearing that this doctrine could shut down a number of otherwise legitimate defamation suits, subsequent cases tried to keep the doctrine from expanding. See, e.g., Buckley v. Littell, 539 F.2d 882, 888-89 (2d Cir. 1976) (rejecting argument that William F. Buckley could be libel-proof based on his controversial political positions); Sharon v. Time Inc., 575 F. Supp. 1162, 1168-72 (S.D.N.Y. 1983) (finding that former Israeli Minister of Defense Ariel Sharon was not libel-proof in context of article accusing him of permitting and encouraging murder of Palestinian refugees). This is not to say that the libel-proof plaintiff doctrine is limited to those guilty of criminal activity, but courts tend to be hesitant to expand it beyond that context. Or at least courts in the 2nd Circuit, where Trump would be most likely to sue the Times.

Depending on who you speak to, Trump may or may not have an abysmal reputation in all respects. But the Times’s article is focused solely on his reputation as someone who abuses and objectifies women. With Trump’s numerous statements dating back decades about how he objectifies women and his recently leaked statements he calls “locker room talk,” it’s hard to see how his reputation on this point could get any worse. His reputation, from the perspective of most people I know, is about as fucked as Singapore hooker during fleet week.

At the same time, though, Trump doesn’t quite fit the mold of the typical libel-proof plaintiff. He has never actually been found guilty (yet) of sexual harassment or assault. And while his statements about women may be objectionable and lead to a reasonable inference that he has committed sexual assault, he has not admitted to this. A number of his supporters still do not believe he has sexually assaulted women. In fact, there are still millions of Americans who continue to support Donald Trump, and it is probably still possible to harm his reputation in their eyes. Fortunately for the New York Times, though, they have plenty of other defenses under the First Amendment that make any Trump-led defamation claim against the Times as doomed as his flaming dumpster fire of a campaign.

But, even now, to call him "libel proof" probably overstates the doctrine. But, worry not, there's still another debate to come, and the Orange one seems to be determined to double down on the stupid every 24 hours. At some point, he just might get there.

Thanks and Congrats To Dhillon Law Group For Important Pro-Bono Anti-SLAPP Win

I know I say it all the time, but here it is again: the system is broken, and only the generous community service of lawyers prevents people from getting ground up in it.

A few months ago I got a private request from a young woman sued for defamation. This was the core of the case: she made a sexual harassment complaint against another student after a brief relationship, and her school investigated it as required by Title IX and found in her favor. Days later, the fellow student sued her — not her university, but her — for defamation based on her participation in the school's investigation.

Most grad students can't afford modern litigation. I put out an immediate mini-Popehat Signal seeking pro bono help for her. Harmeet K. Dhillon and Krista L. Baughman of the Dhillon Law Group swiftly answered the call. The defendant stuck out her thumb hoping for a ride on the back of a turnip truck and wound up in a Porsche. Harmeet and Krista filed an anti-SLAPP motion, which they recently won, as they describe here.

In addition to being very significant for the defendant, it's a win that's very important for anti-SLAPP litigants in cases involving college administrative proceedings. California has an absolute privilege for statements made in the course of "official proceedings" — if you sue someone for slandering you during their testimony at a trial, for instance, the defendant can easily win an anti-SLAPP motion based on that privilege. This prevents a vast amount of harassing and retaliatory litigation. But until Harmeet and Krista successfully litigated this, no California court had expressly extended the "official proceeding" privilege to Title IX proceedings mandated by federal law. Now, thanks to their work, students can report conduct to school authorities without worrying that they will be drawn into frivolous but ruinous defamation litigation.

Many people are concerned that schools are conducting Title IX proceedings without adequate due process protections for the accused. This is a very legitimate complaint. But that wasn't the issue here. Here the plaintiff wasn't suing the school (with its money and lawyers) for disciplining him without due process. Rather, he was suing the individual complainant for defamation merely for reporting his behavior, forcing her to defend herself without the school in court. This was the absolutely right result, and consistent with other laws making reports of misconduct privileged from defamation suit. Absent this rule, whenever one college student accused another of some misconduct, the accused could retaliate with an expensive, stressful, all-encompassing lawsuit.

The case took a lot of work and some creative lawyering on a novel issue. Harmeet K. Dhillon and Krista L. Baughman did it for free. There's no guarantee they'll collect any fees even though they won the anti-SLAPP. But they did it because it was the right thing to do and because people like this defendant depend on people like them for justice, and they did an exceptionally good job at it. Please join me in applauding and thanking them.

FIRE Attacks Northern Michigan University's Shocking, Wanton Rule Against Students Sharing Suicidal Thoughts

I've written about some pretty outrageous cases of university censorship, like Bergen Community College's idiotic crusade against Game of Thrones t-shirts or University of Wisconsin-Stout's imbecilic response to Firefly references. The Foundation for Individual Rights In Education — FIRE, the boogeyman of Alternet writers and the professionally offended — has played a major role in vindicating rights in many of those cases.

But I've never seen a FIRE case that outraged me more.

Northern Michigan University had — and perhaps still has — a policy subjecting students to discipline if they share suicidal thoughts with their peers. And they've threatened to use it.

After seeking counseling following a sexual assault, NMU student Katerina Klawes received one of these emails in March 2015, informing her that it was “important that [she] refrain from discussing these issues with other students.” An administrator clarified to Klawes in a subsequent email that she “cannot discuss with other students suicidal or self-destructive thoughts or actions.”

Words are inadequate to convey how wrong-headed, reckless, and cruel this is. FIRE's letter explains why it's a First Amendment travesty. But more compellingly than that, it's a human travesty, a sick elevation of student management over survival. As I've talked about before, reaching out to someone — anyone — can be the difference between life and death for someone suffering from severe depression. Threatening a student with discipline if they utter a cry for help to peers — who may be the only ones with whom the student feels a connection — could fatally suppress that crucial plea for help.

I'm more of a consumer of mental health expertise than a provider, so to express what a terrible idea this is I reached out to a high school classmate, Dr. Mendel Feldsher, a frighteningly well-qualified psychiatrist and clinical professor of psychiatry. Part of Mendel's work since 2002 (along with forensic and expert work) has been counselling college students at the Claremont Colleges. Here's how he put it:

A policy which prohibits college students from communicating their suicidal or self-harming thoughts with their peers promotes isolation and disconnectedness which increases the risk for suicide. The simple act of disclosing ones suicidal thinking to a friend can itself be quite therapeutic and can interrupt the crescendo of depressive cognitions which can lead a student to act on suicidal thinking. Communication with a friend is frequently the pivotal first step toward seeking help, and many students may be more willing to initially share their feelings with a friend than with a school official or therapist. Threatening disciplinary action for student to student communication regarding suicidal thinking sends the clear message, “You are an unacceptable burden to others” which is a harmful message, particularly to a student who is depressed and suicidal. The increasing prevalence of anxiety, depression, and suicidality in college students calls for increasing access to mental health services, not adding to stigma with a policy which promotes increased shame for the depressed and suicidal student. I have treated many depressed and suicidal students who would not have come to my attention but for their decision to reach out to a peer who urged them to seek treatment. I have never treated a student whose primary issue was the trauma they suffered as a result of a peer’s self-disclosure regarding their self-harm or suicidal thoughts.

This is a shockingly bad, inhumane policy. Let's hope FIRE's letter inspires NMU to renounce it quickly, clearly, and unequivocally. Even if they do, I am appalled that college administrators thought that this was a sensible or acceptable policy, and I question their suitability to work with students.

Jesse Singal has a post about this as well.

California: No, You Can't Show That Civil War Painting At A State Fair. It Has a Confederate Flag In It.

You may have seen something about this already: a California state legislator's mother was offended when she saw novelty Confederate money bearing the Confederate flag in the gift shop at the State Capitol. Naturally her son proposed a new law, now in effect, banning the State of California from displaying or selling the Confederate Flag or items bearing its image.

This raises some questions right off the bat. Why is the gift shop in the State Capitol of California selling novelty Confederate money? Why do legislators think that personal annoyances are grounds for legislation?

But the worst was yet to come: California officials, including both Department of Agriculture bureaucrats and counsel from the Attorney General's Office, decided that the law means that an artist could not show his civil war painting at the Big Fresno Fair, which allows hundreds of artists to display their work at its cultural fine arts pavilion. Why? Because the Civil War painting — like many such paintings — included an image of the Confederate flag, and so allowing an artist to display it with all the other work at the state fair would mean the state was displaying it in violation of the law.

No, really.

The artist has sued, and I wrote a column for the Los Angeles Daily Journal explaining why he should win, which you can read here (it's an authorized reprint; the web article is behind a paywall).

In a world choked with really stupid bureaucratic decisions, this one is notable for its idiocy.

What It's Like For The Client Subjected To A Bogus And Retaliatory Investigation

By day, Bob Blaskiewicz is a college professor. By night, he's a skeptical blogger, using the critical thinking skills he teaches to interrogate public quackery. He's a long-term critic of Stanislaw Burzynski, a Houston researcher famous and infamous for experimental cancer "treatments." He helps run a blog critical of Burzynski's claims. (Long-time readers of Popehat might remember that a supporter of Burzynski named Marc Stephens attempted, to the best of his modest ability, to threaten me at length with criminal investigations and legal proceedings, which generated what for better or worse became the blog's catchphrase.)

Blaskiewicz is fighting the good fight for science and skepticism over woo and those who prey upon the desperate. That has consequences. In his case, it generated a bogus and malicious report to the FBI about him. Bob describes what it was like in a post (not to mention what it was like to have to put up with me). The result was obvious and (after the fact) appropriate — the FBI determined that the "threat" was obviously not one, but speech protected by the First Amendment. It's still regrettable that bad faith retaliatory reports to law enforcement can upend people's lives. It was a privilege to help out Bob, who has a lot of insight into the client experience:

[I was learning that a big part of a defense attorney’s job is keeping their clients from hurting themselves by acting out of panic.]

Read his post, it's worth it.