Cracked Drunkenly Paws At Free Speech Theory Again

I feel both fondness and respect for Cracked. I remember reading the magazine as a kid — it was number two or three to Mad, but it tried harder. As a web site, it's done good work in the realms of satire, fatuity, and social and political commentary. But like any institution it has a culture, and that culture has its weak spots. One example: the urge to write meandering make-everyone-dumber think pieces about "free speech."

I put scare quotes around free speech because Cracked seems to require its writers to blur the lines between free speech law and social norms surrounding free expression, and to address them in a way that obscures both. This week's example: "What Free Speech Doesn't Give You The Right To Say."

We're in trouble right from the start:

Freedom of speech is one of the cornerstones of our society, and it is absolutely a principle worth defending to one's dying breath. Unfortunately, complete assholes are also a cornerstone of our society, and will definitely be here until our dying breaths. And when the latter gets ahold of the former, they invoke it improperly and indiscriminately, like a toddler with a new word or a monkey with a shotgun.

We're in trouble right from the first paragraph. Aaron Kheifets invokes rights in the piece's title, suggesting a discussion of legal norms, but immediately bogs down with terms like "improperly" and "indiscriminately." Indiscriminately according to whom? Improperly under what standard? You won't find out in this piece; those are emotive reactions to speech, not attempts at legal or philosophically principled distinctions.

Kheifets' first point is that people crying "censorship" at content regulation at Reddit, Facebook, or Google are wrong. Just wrong. Why?

Does that mean the internet is abandoning our much-beloved free speech? Fuck no! It just means that the standards for free speech people use on the internet are finally catching up to all other forms of human interaction.

That sounds nice, but it's uselessly vague. Maybe Kheifets means "online businesses are starting to throw drunks and assholes out, just like your neighborhood restaurant would if you started shouting about lizard people." Or maybe not. His elaborations are incoherent:

First, I'd like to point out that there are a ton of things you are legally not allowed to say. The example everyone is familiar with is that you can't yell "Fire!" in a crowded theater (everyone will kick your ass for talking during Rogue One). But there are many more examples of things you have no legal right to spout off. You can't incite people to violence, you can't slander (in speech) or libel (in writing) someone, and you can't say things that would make any reasonable person punch you in the face, because them's fightin' words (though telling someone you thought The Force Awakens was a good movie is still technically legal, for some reason).

Here Khiefets finally references legal norms, but in a vague, misleading, and mostly useless way. These are all censorship tropes, invoked in a tropey way. The observation that some speech is outside the First Amendment is true but irrelevant and unpersuasive absent specific explanations of how particular established exceptions apply to particular speech. The "you can't shout fire in a crowded theater" bit is a reference to a rhetorical flourish in a subsequently overturned case that means absolutely nothing. The "you can't incite people to violence" observation is true but somewhat overstated, since the test for actionable incitement (whether the speech is intended to cause, and likely to cause, imminent lawless action) is narrow. And "fighting words" — if it survives as a doctrine — is restricted to face to face insults directed at a specific person. Most importantly, these legal doctrines are all irrelevant to the question at hand — whether private companies are involved in wrongful censorship — because internet companies aren't the government and their actions can't violate the First Amendment under the state action doctrine.

Onward we slog:

Yet despite it being completely illegal in real life, people think they are allowed to threaten and harass people online. Leslie Jones received a mind-boggling number of inflammatory and threatening messages on Twitter, and zero people went to jail. Contrariwise, if someone (say, I don't know, maybe a Cracked writer) organized people to make a bunch of prank phone calls to a radio DJ, they would for sure go to jail. Just ask Cracked writer and jail alum John Cheese.

Wait, wait, wait. This is too much whaarrbargl. Kheifets has just asserted that things called "threatening" and "harassing" online are "completely illegal" in "real life." Well, not exactly. Only true threats are outside the protection of the First Amendment. Many, perhaps most, threats are not "true" because a reasonable person would not interpret them as a genuine statement of intent to do harm. The law of "harassment" is more muddled, but suffice it to say that not everything you think is harassing is outside the protection of the First Amendment either. It's true that nobody went to jail for being assholes to Leslie Jones, but Khiefets hasn't established that anyone did anything outside the protection of the First Amendment, so the observation doesn't get us anywhere. Then Kheifets asserts that you would "for sure go to jail" if you "organized people to make a bunch of prank phone calls," and for that assertion cites an article by another Cracked writer who doesn't explain exactly what he did before he was arrested and doesn't explain what happened to the charges after he was arrested. In fact, organizing people to call (or crank call) someone might get you charged, but it's not at all "sure" that you'll be convicted or "go to jail." This is nonsense.

It keeps getting worse:

So just to be clear (and I can't believe this is a sentence that actually needs to be written), you aren't allowed to intentionally inflict harm on someone, even by just using words, whether via in-person chat, phone, email, Facebook, Instagram, telegraph, Snapchat, Tinder, smoke signals, singing telegram, carrier pigeon, words scrawled on a gas station bathroom wall, or even Reddit.

This isn't a correct statement of law. It's not even a correct statement of morality. It's absolutely allowed — and protected by the First Amendment — to do things that you intend to cause harm. For instance, condemning people for evil or stupid acts may cause them harm, but it's protected. Revealing true and shameful facts about them — Anthony Weiner, anyone? — may cause harm, but it's protected. The proposition that you aren't allowed to cause harm through our words — a popular trope of badly written cyberbullying laws — is not just wrong, it's a joke.

Kheifets finally gets around to something worthwhile and not entirely inaccurate:

If a comedian makes rape jokes and people don't like them, that isn't the audience censoring the comic any more than someone not liking a meal is censoring the chef. Nobody has to support anyone else's shit sandwiches.

Kheifets goes on in that vein for several paragraphs. He's right. People shunning you for your free speech is their free speech. Criticism isn't censorship. But it would be nice if Kheifets — having invoked and blundered around in the vicinity of legal norms — would point out the key one here, which is that only government action can violate the First Amendment.

Kheifets concludes with this:

Free speech is a vital part of a free society. Shouting racial slurs at people until they're afraid to interact with the world isn't. You aren't entitled to free, uncontrolled access to Facebook's servers. You're free to ride a horse, but you're not free to ride a horse into an IKEA — especially not a horse you don't own. And constantly crying "free speech" is beating that horse to death.

This, particularly as the coda to Kheifets' piece, is confused. I'm not sure whether he's saying that racial slurs aren't a "vital part of a free society" (arguably true but irrelevant to whether they are protected speech) or whether he's saying they aren't protected free speech (which, under many circumstances, would be incorrect). The horse thing is just incoherent. And Kheifets is the absolute last person to have any business berating others for inaccurate invocation of free speech rhetoric.

Seriously, Cracked. This is crap. Most of your columns about free speech are crap. They don't educate anyone. They promote confusion and ignorance about vital civic concepts. Why do you keep doing this?

Lawsplainer: Why Flag Burning Matters, And How It Relates To Crush Videos

I have a question about flag burning.

I deserve this. I earned this. I've . . . done things. I am forsaken and abhorred by God.

Oh stop being so dramatic. I just want to ask why I should care.


Look, I get that the Supreme Court ruled — twice — that flag burning is expression protected by the First Amendment. But we argue about controversial speech all the time, and politicians advocate for punishing protected speech all the time. Why should we care when Donald Trump oafs around about flag burning? Isn't it just noise?

Because the flag burning "controversy" goes directly to the structure and methodology of free speech analysis.

That sounds superficially profound without actually meaning anything.

Do you want to have this conversation or not?

Pffffft. Fine. What does flag burning have to do with free speech "structure" or "methodology"?

In free speech analysis, how you get to a conclusion often has much more long-lasting impact than the conclusion itself.

Our legal system runs on precedent. The significance of the precedent isn't "the Supreme Court said that flag burning is protected by the First Amendment." The significance of the precedent is "someone wants to punish this speech and we have to figure out whether or not it's protected by the First Amendment. Let's look at the logic and methods the Supreme Court used to resolve that question when flag burning was the issue, and then apply it here."

But the Supreme Court has decided lots of cases about the First Amendment. This is just one precedent, one example of a method of reaching a conclusion. What makes it particularly important?

The Supreme Court's flag burning cases are crucial — not because of how they analyze existing exceptions to the First Amendment, but because they address whether the government can create endless exceptions to the First Amendment.

Just like crush videos.


Crush videos. You know, videos of women stomping on small helpless animals.

That's . . . that's a thing?

Of course it's a thing.

Ugh. What does that have to do with flag burning? Or the First Amendment?

Congress — having salved all of the nation's ills — passed a law banning crush videos. Because who wouldn't vote for someone who stands against hurting baby animals? The law made it a federal crime to create or sell depictions of animal cruelty in interstate commerce. In 2010, in United States v. Stevens,, the Supreme Court found that the statute violated the First Amendment.

That sounds pretty straightforward. Why is it significant?

It's significant because of the way the government defended the statute. The government's lead argument wasn't that crush videos were outside of First Amendment protection because they fell into an already-recognized exception, like defamation or obscenity or incitement. They argued that the Supreme Court should recognize a new categorical exception to First Amendment protection for animal cruelty, because animal cruelty is so awful. They also argued that courts can recognize new exceptions to the First Amendment by weighing the "value" of the targeted speech against the harm it threatens.

The Supreme Court — in an 8 to 1 decisionfirmly rejected those two arguments. First, the Court said, the historically recognized exceptions to First Amendment protection are well-established, and you can't just go around adding new ones:

“From 1791 to the present,” however, the First Amendment has “permitted restrictions upon the content of speech in a few limited areas,” and has never “include[d] a freedom to disregard these traditional limitations.” Id., at 382–383. These “historic and traditional categories long familiar to the bar,” Simon & Schuster, Inc. v. Members of N. Y. State Crime Victims Bd. , 502 U. S. 105, 127 (1991) ( Kennedy, J. , concurring in judgment)—including obscenity, Roth v. United States , 354 U. S. 476, 483 (1957) , defamation, Beauharnais v. Illinois , 343 U. S. 250, 254–255 (1952) , fraud, Virginia Bd. of Pharmacy v. Virginia Citizens Consumer Council, Inc. , 425 U. S. 748, 771 (1976) , incitement, Brandenburg v. Ohio , 395 U. S. 444, 447–449 (1969) ( per curiam ), and speech integral to criminal conduct, Giboney v. Empire Storage & Ice Co. , 336 U. S. 490, 498 (1949) —are “well-defined and narrowly limited classes of speech, the prevention and punishment of which have never been thought to raise any Constitutional problem.” Chaplinsky v. New Hampshire , 315 U. S. 568, 571–572 (1942) .

Second, the Court said, the government's proposed methodology — that the Court should identify new categorical exceptions by balancing, on a case-by-case basis, the value of speech against its harm — is antithetical to First Amendment analysis and dangerous:

The Government thus proposes that a claim of categorical exclusion should be considered under a simple balancing test: “Whether a given category of speech enjoys First Amendment protection depends upon a categorical balancing of the value of the speech against its societal costs.” Brief for United States 8; see also id., at 12.

As a free-floating test for First Amendment coverage, that sentence is startling and dangerous. The First Amendment ’s guarantee of free speech does not extend only to categories of speech that survive an ad hoc balancing of relative social costs and benefits. The First Amendment itself reflects a judgment by the American people that the benefits of its restrictions on the Government outweigh the costs. Our Constitution forecloses any attempt to revise that judgment simply on the basis that some speech is not worth it. The Constitution is not a document “prescribing limits, and declaring that those limits may be passed at pleasure.” Marbury v. Madison , 1 Cranch 137, 178 (1803).

So: in 2010, the Supreme Court overwhelmingly and clearly rejected the idea that legislatures and courts can create new exceptions to the First Amendment based on how strongly they hate speech or how awful it is.

Okay. But I don't see what that has to do with flag burning.

The argument that flag burning is outside First Amendment protection relies on the same argument that the government made in Stevens — that the Supreme Court can, and should, recognize a special new exception to the First Amendment because burning the flag is so uniquely awful and represents such "low-value" speech.

Can't you justify a flag-burning prohibition under already existing historical exceptions to the First Amendment? What about fighting words, or incitement to riot?

You could justify some prosecutions of flag-burning on that basis under existing neutral laws, but not laws generally banning flag burning.

"Fighting words" — to the extent the doctrine still exists, which is doubtful —

What, what? It is?

–you'll have to wait for the first episode of the Popehat free speech podcast for that.

Anyway, at most fighting words allows the government to punish words directed at a particular person amounting to a challenge to an immediate physical fight. So, for instance, Paul Robert Cohen's jacket saying "Fuck the Draft" couldn't be fighting words because nobody could reasonably understand it as a direct personal challenge to them to fight. And in most cases, burning a flag isn't a direct challenge to a particular person to fight, which is why the Supreme Court said that it couldn't be treated as fighting words.

Could it be fighting words, hypothetically?

Sure! Say my neighbor Bob is a veteran and I knock on his door and when he opens it I'm burning a flag with a sign that says "I SPIT ON YOU BOB." That could probably be punished under the fighting words doctrine as a direct immediate challenge to a specific person likely to cause an immediate fight — if there was an existing statute prohibiting such challenges. But flag-burning statutes aren't limited to one-on-one confrontations like that. They seek to ban all flag burning.

Okay. But what about incitement? Isn't burning a flag incitement?

Colloquially it might be. But legally, it's not incitement outside of the protection of the First Amendment. The First Amendment protects speech that may make people so angry that they resort to violence — and thank God it does, because otherwise you could control speech by reacting violently to it.

No, incitement is only outside of the protection of the First Amendment when the incitement is intended to cause, and likely to cause, imminent lawless action. Maybe some people burning the flag intend to start a riot, and maybe in some situations a riot is likely. But most flag-burning statutes aren't that narrow — they ban flag burning whether the burner intends to incite a crowd to violence or not. That's why the Supreme Court rejected "incitement" as a rationale for flag burning laws.

Could you punish flag burning as incitement to riot?

Sure, you probably could, if you could prove that the flag burner intended to cause, and was likely to cause, imminent lawless action. You could do so under an existing incitement or disturbing the peace statute.

In 2005 members of Congress — including then-Senator Clinton — proposed a rather narrow flag-burning law limited to situations where the burner intended to cause and was likely to cause imminent violence. That would have met the strict test defining "incitement." It still would likely not have been constitutional, because it singled out for punishment one specific type of expression likely to cause a riot, and therefore was based on content. But that's a different post.

Okay. But you're not a Supreme Court Justice. Reasonable minds can differ on these things. Four justices dissented in both of the flag-burning cases. Can't you admit you may be wrong?

I'm wrong all the time. But my fundamental point is about how and why those justices dissented in Texas v. Johnson (the 1989 case striking down Texas' flag-burning law) and United States v. Eichman (the 1990 case striking down Congresses we-are-outraged Flag Protection Act of 1989).

Those dissents don't seriously advance either the fighting words theory or the incitement theory. Rather, they argue that the flag is unique and deserves unique protection — a new First Amendment exception.

Take Chief Justice Rehnquist's dissent in Johnson. It opens with a stirring history of the flag and its historical significance and emotional impact, and distinguishes it from other symbols like this:

The flag is not simply another "idea" or "point of view" competing for recognition in the marketplace of ideas. Millions and millions of Americans regard it with an almost mystical reverence, regardless of what sort of social, political, or philosophical beliefs they may have. I cannot agree that the First Amendment invalidates the Act of Congress, and the laws of 48 of the 50 States, which make criminal the public burning of the flag.

Rehnquist does invoke the fighting words doctrine, but not to fit flag burning within it. Rather, he cites it for the proposition that courts can carve new exceptions out of the First Amendment based on a weighing of the value of the speech against its social harm — in other words, the exact argument the government made and the Court rejected in Stevens:

The Court could not, and did not, say that Chaplinsky's utterances were not expressive phrases — they clearly and succinctly conveyed an extremely low opinion of the addressee. The same may be said of Johnson's public burning of the flag in this case; it obviously did convey Johnson's bitter dislike of his country. But his act, like Chaplinsky's provocative words, conveyed nothing that could not have been conveyed and was not conveyed just as forcefully in a dozen different ways. As with "fighting words," so with flag burning, for purposes of the First Amendment: It is no essential part of any exposition of ideas, and [is] of such slight social value as a step to truth that any benefit that may be derived from [it] is clearly outweighed by the public interest in avoiding a probable breach of the peace.

Justice Stevens' dissent in both Johnson and Eichman is similar: he argues that the government has a compelling interest in protecting the flag from desecration and that such prohibition is acceptable because it will apply no matter what the intended message of flag-burning is:

These cases therefore come down to a question of judgment. Does the admittedly important interest in allowing every speaker to choose the method of expressing his or her ideas that he or she deems most effective and appropriate outweigh the societal interest in preserving the symbolic value of the flag? This question, in turn, involves three different judgments: (1) The importance of the individual interest in selecting the preferred means of communication; (2) the importance of the national symbol; and (3) the question whether tolerance of flag burning will enhance or tarnish that value. The opinions in Texas v. Johnson demonstrate that reasonable judges may differ with respect to each of these judgments.

This is the balancing test put in different terms — it still relies on a judgment that (a) this speech is harmful and (b) the speech is of low value because you could say the same thing other ways that are less harmful.

So what's your point?

The flag-burning cases are important, like the crush videos case was important, because they draw a crucial line between having a few strictly limited exceptions to the First Amendment, on the one hand, and having as many exceptions as we feel like having, on the other hand. Flag burning isn't speech that's uniquely valuable or important to protect. What's important is that we protect the principled method by which we determine which speech is protected and which isn't.

The argument that flag burning should be outside the First Amendment can be applied with equal force to just about anything — "hate speech," "cyber-bulling," "revenge porn," "pro-ISIS speech," or whatever the flavor of the month is. If think the majority was wrong in the flag burning cases, here's what you're saying: "the Supreme Court makes bad judgments, and I want to give that Supreme Court the power to decide, on a case-by-case basis, whether the harm of speech outweighs its value. I don't want the courts to be limited to established, well-defined categories outside of First Amendment protection."

But that's ridiculous.

You're damn right it is.

It's about nothing less than the rule of law.

Okay. Hey, aren't you just being a dupe for Trump by reacting to one of his tweets, when he's probably just trolling?

I write about the First Amendment. It would be ridiculous to stop just because Donald Trump raises the issue of the day. Prudence requires us to put Trumpisms in perspective; it shouldn't prevent us from continuing to articulate our core values and talk about the things that are important to us.

We can never be too safe! (Update – Passenger banned for life)

How deplorable!

How deplorable!

We can never be too safe from awful speech. You know, speech with which we disagree. That kind.

This douchebag got on a flight and went on a 45 second triumphant rant about Trump.

“We got some Hillary bitches on here,” the man yelled. “Come on, baby. Trump!”

He then kept yelling, telling everyone that Trump is "president of every one of y'all" and if they don't like it, "too bad." The video is here.

Clearly the most dramatic reaction on the plane was an eye roll. One woman sarcastically said "we can't hear you."

Later, a flight attendant took Mr. Douchebag off the plane and told him that he wasn't allowed to act that way.

It seems to me that the Delta crew handled it just fine.

"Sir, don't be a dick on the flight anymore, or we wont let you fly."

"Ok, I won't"

There were no further outbursts.

Well, ok, there were. All over social media. This was a sign to the leadership of the National Association of Crybabies that this was the beginning of the concentration camps in America. This was their sign that The Deplorables were coming for them. You know, the same kind of hysteria that we saw when a guy whose middle name is "Hussein" came into office to take their guns and put them in FEMA camps.

People flipping the fuck out over nothing.

And, Delta couldn't leave well enough alone.

"We are sorry to our customers who experienced this disruption. We have followed up with the teams involved and all agree that this customer should not have been allowed to continue on the flight. Our responsibility for ensuring all customers feel safe and comfortable with Delta includes requiring civil behavior from everyone. The behavior we see in this video does not square with our training or culture and follow up will continue so we can better ensure our employees will know they will be fully supported to make the right decisions when these issues arise." (Delta Statement) (emphasis added)

I'm ok with most of the statement. Fine, you have to give everyone a tummy rub. And yeah, Mr. Douche was disruptive for 45 seconds. That's a fuck of a lot less than the stupid piece of shit who always winds up stopping the plane from boarding because she doesn't think the laws of physics apply to her suitcase — and then she looks at me like I'm gonna help her. See Rule 8.

Pre-flight screaming doesn't really bother me. Maybe because I live in Vegas, and most of the time I'm flying home after a long work week somewhere else, I'm sitting there while the Vegas-bound revelers pour themselves down the aisle after their celebratory pre-game at the terminal. You think this guy was obnoxious? Have you ever seen a bachelorette party pour itself onto a Vegas-bound plane? How about every guy in an Ed Hardy shirt who gets on a plane bound for Vegas or Miami? How about any flight leaving Miami for Boston for the Patriots kick the shit out of the Dolphins in an away game.

I was "that guy" once — on my way from Fort Myers to Houston for Super Bowl XXXVIII. I stumbled on the plane dressed in a Steve Grogan jersey and a velvet pimp suit and ran up and down the aisle screaming "I'M THE MOTHERFUCKIN PATRIOTS PIMP BABY!" The flight attendants gave me "the talk" too. Fucking fascists.

Where were we?

Right, so obnoxious shit on the plane. Big fuckin deal. I deserved the "sir, you need to behave in this little metal tube" talk when I was playing Patriots Pimp. So did Deplorable Dan. But that's the end of it.

Remember when we got all pissed off during the Bush years when people got kicked off of planes for wearing anti-Bush statements on their shirts? (like here) How about when someone found an upside down flag offensive? Black lives matter button kerfuffle?

In flight assholes are a problem. But, really? Would this be an issue if he got on the plane and screamed "FUCK THE DALLAS COWBOYS!" or "YANKEES SUCK!" So what's the problem here? That he called his political opponents "Hillary Bitches?" So fucking what? How about if he got on board and yelled "NOT MY FUCKING PRESIDENT?" Or how about if he started chanting "BLACK LIVES MATTER?"

I'm not defending the guy. Deplorable and Douchey Dan was out of line. I'm willing to bet that I would hate him. I base that on very little — just my own coastal elite asshole stereotyping. Between his clothes, his accent, and his "yeah, y'all" shit, I'm pretty sure I wouldn't like him. I think what he had to say was fucking retarded. Had he been seated next to me and tried to give me a high five, I'd have responded with "don't touch me, I don't want to catch fuckheaditis."

But, the flight attendant handled it the right way. Delta should maybe have issued a statement — even the one it issued, minus the bolded part. His behavior was douchey, but hardly as bad as 90% of the prole trash motherfuckers who don't know how to behave on a plane. I'll take him over half the seat mates I've had in the past year.

UPDATE: And now, to prove how politically correct they are, Delta has banned Mr. Douche for life from Delta flights. Let that sink in. He said one offensive thing, one time, on a flight and now for the rest of his life he can't fly Delta.

And right now, I'm sure some sanctimonious fucking turdsucker will bob their head and say "well, serves him right." How about you order some shut-the-fuck-up as your in flight beverage? Really? Because if you think this "serves him right," then I can guarantee you that you have had your share of dumb shit to say, scream, whine, shout in your day.

I might not agree with Mr. Douche, but the only difference between him and anyone boarding a Friday night Vegas-bound flight in an Affliction shirt is that he shouted a political view that certain crybabies find offensive.

Well fuck you. I find your face offensive.


Castro Dead – Good Time to Talk About "Fake News"

Part 1 of Herbert Matthews' 3 part series

Part 1 of Herbert Matthews' 3 part series

"Journalists" are writing about "fake news" as if "bullshit" was something new.

If you don't know the name "Herbert Matthews," but you think you know anything about Fidel Castro, you don't know shit. Matthews was the master of journalistic fiction, and he and the New York Times are why you even know Castro's name.

Matthews covered the Italian invasion of Ethiopia for the New York Times. He didn't even try and hide his bias in favor of the Italian Fascists. He wrote, "[i]f you start from the premise that a lot of rascals are having a fight, it is not unnatural to want to see the victory of the rascal you like, and I liked the Italians during that scrimmage more than I did the British or the Abyssinians." He admitted that whichever side was "right" was of no interest to him. For throwing in with Mussolini, he became known as a "fascist."

His next posting was in Spain, covering the Spanish Civil War. He arrived still somewhat Right-Wing, sympathizing with Franco's forces over the Republicans. However, somewhere along the way he became friends with Hemingway, and switched polarities. Hemingway based Robert Jordan, the main character in For Whom the Bell Tolls, on Matthews. From then on, he was considered to be a dear friend of the Left.

On November 25, 1956, Fidel Castro, Raul Castro, Che Guevara, and 79 other members of the 26th of July Movement boarded the Granma and sailed for Cuba. They planned to get to Cuba and raise an army to overthrow the reigning Cuban tyrant, Batista. But, most of them were captured or killed, and only 16 of them made it up into the mountains. Batista declared that they were all dead and victory was his. Castro was still alive, but his movement as dead.

In February of 1957, Matthews got an interview with Castro while he was hiding in the Sierra Maestra mountains with only about 20 guerrillas. However, nobody had heard from Castro since the Granma landed — strengthening Batista's claim that he had killed his upstart nemesis.

Senor Castro was waiting until he had his forces reorganized and strengthened and had mastery of the Sierra Maestra. This fortunately coincided with my arrival and he had sent word out to a trusted source in Havana that he wanted a foreign correspondent to come in. The contact knew as soon as I arrived and got in touch with me. Because of the state of siege, it had to be someone who would get the story and go out of Cuba to write it.

Matthews hid out with Castro and did his research for his three part series, starting with Castro Is Still Alive and Still Fighting in Mountains which appeared on page 1 of the New York Times' Sunday edition, on 24 February 1957. (reproduction of original, easier to read version) It continued with Rebel Strength Gaining in Cuba, But Batista Has the Upper Hand published the next day. (original) And finally, Old Order in Cuba Is Threatened By Forces of an Internal Revolt. (original)

I remember reading these articles in 1988 when I took Journalism 492, "Covering Revolutions" at the University of Massachusetts. As you might imagine, the course was hardly critical of Matthews or Castro. I recall taking the course thinking it would be about how to "cover revolutions." In reality, it was "how journalists can help revolutions." Professor Pinkham was a good-old-fashioned revolutionary academic. The Wall hadn't yet fallen, and it was completely foreseeable that some of his students would one day go on to be the next Matthews, Jack Reed, or Edgar Snow.

Reading these articles in 1988, I actually hoped to be lucky enough not to just chronicle a revolution one day, but to be its vehicle. Yeah, I wore a lot of red stars back then. And, for an 18 year old with Marxist sympathies, the thought that I could carry a revolution on my back was a hell of a dream.

I never got around to either chronicling or driving a revolution, so I guess I'm not getting that off my bucket list. But, if you sit down and read Matthews' work with an open mind, you can see how 18 year old me could have read them and thought "right on, man!" Matthews doesn't just tell a story — he really weaves a romantic tale of the revolutionary movement liberating Cuba against all odds. Consider it to be less "journalism" and more fiction based in part upon the facts — but crafted in a way to support the "rascal Matthews liked."

Was Matthews totally complicit or just somewhat fooled by the Revolution? Castro once said, years later, that he ordered the same 20 soldiers to march past his tent, in circles. The intent was to give Matthews the impression that the revolution was far larger than it was. Castro also reportedly had "messengers" come and give "reports" from nonexistent platoons all across the Cuban countryside. Matthews' series made it appear that Castro's movement was far larger than it was, and that the Cuban people were mostly behind him. If you repeat a lie enough, it can become the truth. But, if you tell the lie masterfully enough, it can also become the truth almost instantaneously.

Meanwhile, Batista maintained the articles were all fiction — including the fact that Castro was still alive. His problems got worse when his claim about Castro being dead was disproven. Once Batista was caught in that lie, the rest became much more believable. Matthews also portrayed the 26th of July movement as "anti-Communist," thus blunting any U.S. opposition. Castro was now the scrappy romantic revolutionary leader, fighting for truth, justice, and liberty.

I don't know whether Matthews was complicit in Castro's deception, or if he was the victim of an elaborate Castro psyop. Whichever is irrelevant. What is relevant is that at the time, Castro's movement was barely surviving, no more than two dozen poorly trained guys hiding in the mountains. After Matthews' articles, the Revolution became an inevitability. And, in 1959, Castro openly credited Matthews with bringing him to power.

The "rascal he liked" was clearly Castro.

Castro is Dead. So What?

Celebration in Miami.  Photo by Carlos Miller

Celebration in Miami.
Photo by Carlos Miller

So Castro is finally dead. Some are dancing on his grave. Some are mourning him.

As usual, I agree with nobody.

Fulgencio Batista, the Cuban dictator who preceded him was arguably worse. Knowing that matters.

Batista jailed and tortured his political opponents and was as brutal a dictator as Castro ever could have imagined. He plundered the Cuban economy for personal gain like any other petty little despot. After Castro overthrew him, his family lived a life of luxury on everything they stole. In fact, his family is still a prominent fixture in Florida politics.

Batista was awful and anyone who got rid of him deserves some credit. By tossing out Batista, Castro ended a period where American capitalists and criminals ran Cuba's economy. There was huge income inequality, and being an average Cuban simply sucked. There is a reason why millions of people cheered in the streets when Castro's revolution took power.

But, lets face it … that was like the jubilation you feel when someone screams "MORE SHOTS FOR EVERYBODY" at 3:30 AM. "WOOOOOOOOO!!!!!!"

This douchebag was no better than Castro

This douchebag was no better than Castro

After ousting Batista, Castro appeared to be the man to deliver a better life for Cubans. He restored the liberal 1940 constitution, which Batista had suspended. He nationalized land holdings larger than 1,000 acres, thus redistributing wealth. He immediately instituted programs to give Cubans greater access to healthcare, housing, and other basic needs.

His revolution received the adoring cheers of millions as it rolled into Havana on 8 January 1959.

But, then those shots hit. The puking began. What an astonishing hangover. Maybe having those shots wasn't such a great idea after all.

Castro did not take long to reveal his tyrannical soul.

By March of 1959, he was already in tyrant mode. A group of former Batista military personnel were prosecuted for war crimes against the revolutionary forces. The revolutionary tribunal acquitted them. Castro did not like the verdict, but the Constitution did not permit a second trial or a prosecutorial appeal. Castro simply decreed one. When challenged, he responded: "Revolutionary justice is not based on legal precepts, but on moral conviction." (source) Forced labor camps, re-education, all the typical totalitarian what-have-yous, Castro had them all.

Castro had the best of intentions — just like most Communists. If Castro was magic, he probably would have created a Cuban utopia. But, he was not magic. A road to a better society passes many tollbooths. You can either pay the toll, go around the tollbooth, or you can pull the tollbooth operator out the window, torture him, rip out his guts, and then put his head on a stick as you approach the next tollbooth and see if that guy wants to risk the same fate, or just let you through. Unfortunately, the last option is often the most expedient — and that is the option that Castro chose. He became Batista without the thieving nature.

Brutal dictator who oppressed his own people? Yes. At the same time, we can't discount that he was way ahead of the curve in opposing apartheid and supporting anti-colonial revolutions. Say what you will about the tenets of Castroism, dude, it had some positive elements. Nevertheless, for every bit of support he gave to movements ostensibly organized for national liberation, his own people still found themselves in Pyongyang with palm trees. Of course, all of his socialist "accomplishments" are subject to serious criticism. (See The Myth of Cuban Health Care)

Anyone mourning his death might be confused. His tyrannical suppression of human rights didn't lead to utopia. It led, instead, to a country that was barely able to meet its own needs. It led not quite to North Korea, but only somewhat better. If I were forced into exile, Cuba would not be the absolute last place on my list, but it wouldn't be far from the bottom.

We can never accurately write alternative-history — but what if Batista had prevailed in 1959? What would Cuba be like today? Puerto Rico is a barely functioning shithole, and it has the advantage of being part of the United States. Haiti? I'd rather live in Castro's Cuba than Haiti. I would imagine that without the 1959 Revolution, Cuba would still be a disaster – albeit a different kind of disaster, with a few really rich families running the place. Perhaps a narco-state, or a Philippines-under-Marcos style kleptocracy.

Castro won... unless you believe in this stuff.  Photo by Carlos Miller

Castro won… unless you believe in this stuff.
Photo by Carlos Miller

While I can't see anyone outside of South Africa, Namibia, and his immediate family rationally mourning him, dancing in the streets to celebrate his death seems to be a bit stupid.

Right now, Miami is overwhelmed with joy.

And if we really dug through those crowds of celebrants, what would we find? Some are in Miami because they fled early on — members of the Batista regime and the small 1% of pre 1959 Cubans that benefitted from that regime. Others? Lets remember that during the Mariel boatlift, Castro not only set people free who wanted to leave, but he opened his jails and mental hospitals.

Of course, I'd presume that statistically speaking, the vast majority of those celebrating are what we would hope they are — descendants of those who fled Cuba simply because they were persecuted and yearning to be free. But more than anyone else, I have to ask them what in the hell they're celebrating.

Castro seized power in 1959. He saw 11 U.S. presidents come and go. He retired, and put his brother in power. He died at the age of 90, peacefully, in his bed, surrounded by loved ones. Sure beats the hell out of how any of his victims died.

If they were Vikings, I guess there would be something to celebrate. Instead of dying in battle, he died of old age. But, there are no Cuban Vikings. So, scratch that.

For better or worse, Castro won. I don't say that to honor him. Sometimes the bad guy wins. He did this time.

Getting Back To Work The Day After

So: Donald Trump, President-elect of the United States.

I said before that I think he's the worst Presidential candidate in my lifetime, a genuinely awful human being, and an existential threat to America. I'm not going to retcon that in a futile gesture towards cheering anyone up. Nor will I try to cheer you up, if you're upset about it.

But I'm going to ask what we're prepared to do about it, here in the aftermath.

Will we wallow, or fight? Will we proceed with campaign slogans, or with reflection and hard work?

Let's talk about it.

This is not the end of political or electoral history. To put Trump's victory in context, reflect for a moment how often you've been told that some election result shows a sea change in American politics. 1994 was the "year of the angry white man," touted as a new wave of white conservative power thwarting Democratic choices. Ask Bob Dole how that turned out. 2000 and 2004 were the years of "permanent Republican majority," sold as another end to Democratic chances. That lasted into Obama's victory in 2008, sold to us as the crest of a demographic wave that would crush the Republican party. Apparently not.

"This is the hugest change ever" is popular with media and pundits. It gets clicks. It hasn't been true so far.

America is equal to this: Assume the very worst about how Trump will govern for the moment, and then look at our forebears and what they endured.

Nearly three-quarters of a century ago my grandfather enlisted in the Navy after Pearl Harbor. He was a peaceable man — he didn't even like loud talk — but it was what his country required. He and my grandmother married quite quickly and moved to Boston, his hometown, so he could complete supply officer training. He stayed at Harvard (then used as a site to train officers) while my grandmother stayed with his parents, whom she had just met. When she went into labor with my mother, she forbade anyone to reach out to him on campus:

Judy was born at the Chelsea Naval Hospital on January 14, 1943. When labor pains began a week early, I didn't want Paul [my grandfather] to know, because he had a major test in the morning that would influence his assignment in the Navy. There was a blizzard going on, so I sent Mother D [grandpa's mother] home from the hospital in the taxi we came in. I always prided myself on my independence, but having a baby alone was something else. It was worth the struggle though — Paul got a good assignment, and we named Judy after St. Jude, the patron saint of the impossible.

Grandpa went on to serve honorably and quite effectively in the unglamorous position of supply officer on a seaplane tender in the Pacific, winning a Bronze Star for his effectiveness at the job but not seeing combat, not counting the time a kamikaze destroyed his room while he was off-ship.

When I look at my grandparents and the dangers and uncertainties they faced alongside their generation, I am filled with confidence in American endurance. I feel the same when I look at how America came through the hellish abattoir of the civil war. I feel it when I see how Jehovah's Witnesses persevered, and eventually prevailed, in their fight to exercise their conscience even in the face of widespread bigotry. I feel it when I see how African-Americans fought through lynchings and murders and fire hoses and dog attacks and beatings along march routes and explicitly racist laws to secure some measure of legal equality and an African-American President. I feel it when I see that Americans who believed that the state has no right to regulate whom we love fought from Bowers v. Hardwick to Lawrence v. Texas in less than a generation.

America has fought wars of every stripe, against ourselves and others. We've plumbed the depths of economic misery. We've survived race riots and nativist strife. And so we shall again. The task ahead isn't easy. It's daunting. But we're up to it.

America is our project: Donald Trump will be the President of the United States in January. I support and defend the United States of America. That means that, though I do not support Trump personally or based on policy, he is my President. He is the President delivered by the Constitution I love and want to defend. I wish him well — meaning that I wish for him the health and strength and resolve to meet the challenges he'll face. I do not wish him success on many of his stated projects, but I hope that he will perform his Constitutional obligations effectively and to the benefit of the country. I will not be saying "not my President" but "for better or worse, my President." Though I hope he will not succeed in many parts of his stated agenda, I do not wish failure on his Presidency, and I do not think that defeating him in the next election should be his opposition's top priority. Our top priority should be opposing bad programs and policies he proposes, making the case for the rightness of our positions, and trying to use what consensus we can find to better govern America.

Our values endure: Our values do not die just because you might interpret an election as rejecting them (more on that later). You don't hold on to your values because they're popular, you hold onto them because they're right and just and they make you who you are. America's history is full of popular fidelity to our stated values ebbing and flowing, and of Americans stubbornly holding on to those ideas in the dark times.

Salena Zito — one of the more perceptive journalists documenting Trump's success — famously said "The press takes [Trump] literally, but not seriously; his supporters take him seriously, but not literally." Some of the things Trump said — taken literally — should offend our fundamental values. Did he mean them? Will he try to make policy based on them? That remains to be seen — identifying Trump's stance is often like shoveling smoke. I think it's entirely possible that Trump won't even attempt to do most of the things he's said, or that he'll attempt them in extremely watered-down desultory ways.

We must be prepared to fight against policies that conflict with our values. But that requires, first, some soul-searching about what those values are, whether we have already compromised them, and whether we have been effective and credible advocates for them. The rule of law, the equality of all people (feeble or powerful) before that law, freedom of thought and speech and worship, strict limits on the power of the state over the individual — those are a few I care about. I've been arguing for a while that neither major American party is a reliable friend to those values. It may be a little late to speak out for them if we stood by while "our team" demeaned them. But as I believe in grace and redemption, I believe in the possibility of a renewed commitment to values and a new fight for them.

What makes us Americans? What core rights do we have that the state cannot violate? What are we willing to do to protect them? Now, more than ever, we need to be willing to ask those questions. When President Trump works on his agenda, we need to examine it clearly and honestly and fight what's wrong. It is essential that we persuade. We can't rely on asserting that a policy is wrong because Trump offers it, or because "everyone" knows it is awful. That was the argument against Trump's election, and it lost. We need to return to forceful advocacy of our values and how they apply to policy choices. It's not about popularity. Miscegenation laws were once extremely popular, but they were wrong and violated core American values without regard to their popularity. In striking them down the Supreme Court did not ride a tide of popular support (there wasn't much) but recognized fundamental values embodied in the Constitution. We need to return to using those values as our tools of persuasion and not rely upon the fickle support of culture or popularity or authority. We need to earn support, not assume it.

Charity and Malice: Claiming that Donald Trump won because 40% of the country is made up of irredeemable racist misogynists is not a sustainable path towards recovering political power or governing. It's not even a good way to endure the next 4-8 years. Premising your politics on the Other being horrible may bring short-term successes but not long-term ones. Governor Romney's infamous "47%" remark was so damaging because it conveyed that he viewed half the country as an impediment, as inherently not part of the right team. Hillary Clinton's comments about "deplorable" and "irredeemable" people wound up conveying the same sentiment. It would be a mistake to build an new opposition to President Trump on the foundation of hating a plurality of the country and considering it worthless and evil.

Of course there are racists and misogynists in America. Of course both those things continue to play a significant role in American life. (How significant? That depends on how much money you have.) Of course some of Trump's supporters are very explicitly racist and misogynistic, and of course Trump courted those groups as part of his base.

But attributing a Trump victory to racism and misogyny is a quick, cheap, easy way out. People aren't that simple. Americans didn't conclusively reject racism by electing President Obama, and didn't conclusively embrace it by electing President Trump. Trial lawyers know this: people don't make decisions like computers. People don't tend to weigh all the evidence or consider all the factors or evaluate every counter-argument to every argument. People tend, in small decisions and big ones, to latch on to a few main ideas, come to a conclusion, and then stop considering contrary evidence. A man sees what he wants to see, and disregards the rest. Obama's election didn't mean Americans were free of racism; it meant that Obama effectively communicated big ideas that connected and shut down the other voices whispering in our ears. Certainly some Trump supporters are avowedly racist, but some of them latched on to big ideas and stopped listening to the rest — like his troubling flirtation with evil.

Hillary Clinton won an epic, historic struggle to be the worst Presidential candidate ever. Ultimately she won that struggle — and thus lost the Presidency — because she did not persuade. She did not articulate her core ideas effectively enough, and so not enough people latched onto them and disregarded the bad things about her. Trump dallied with racism — hell, Trump nailed racism in the coat closet and walked out smirking — but Clinton still did worse with Latinos, African-Americans, and Asians than Obama did. It may be that she was doomed from the start — too much baggage, too many vulnerabilities. Or it could be that she lacked Obama's power to persuade. She couldn't get them to accept her simple pitch and shut everything else out. Trump could.

It falls to realistic Trump opponents not to crush the people who voted for him, but to persuade them. In this election the GOP showed that it could fight back against demographic change — not just by marshaling high percentages of white voters, but by persuading higher-than-expected percentages of minorities. The Democrats can't respond to that by writing 40% of the country off as irredeemable.

Hubris and Entitlement: The catastrophic polling failures of 2016 reflect the fatal pride of Clinton's team and what I'll call "the establishment."

Americans are stubborn and proud. They'll be persuaded, but they won't be told who to vote for like you'd tell a recalcitrant child to eat his vegetables. The media, childishly obsessed with Donald Trump (and frankly unenthused with Hillary Clinton) promoted a us-versus-them mentality. It was far more class-based than race-based — it was the message "isn't it unbelievable and hilarious that those people support Trump." The message was "of COURSE vote Clinton, you idiot" or "you're pretty dim but at least you can see how to vote on THIS one." Generally people can't be expected to embrace stories that demean them.

There was another way, but hardly anybody took it. There was the way of "let me earn your vote by persuading you why these policies are right," conveyed as part of an effective set of ideas. There were far too few forceful and effective advocates of how free trade makes us richer and freer. There were too few people willing to risk a genuine discussion of the costs of frequent military intervention. Everyone was too busy arguing what immigration policies they didn't support to debate specific policies that they did support.

The anti-Trump message was based too strongly on entitlement — based on who you are, we are entitled to your vote, by right. You can see that in the frothing rage at third-party voters after Clinton's defeat. You'll see it in the ugly backlashes coming at the minority voters who didn't vote "correctly." But voting isn't a matter of entitlement. "Vote for me because the other guy's horrific" is not an effective method to persuade or get out the vote. It's an idea that focuses on the other guy, not you. You've got to deserve victory. Clinton didn't. Clinton stank of entitlement to rule, the media conveyed that message, and that message fatally amplified Clinton's scandals, conveying that Clinton was entitled to follow the rules differently, to act differently, to be treated preferentially.

The apotheosis of hubris may have been the Huffington Post's imbecilic (and deeply humiliating in retrospect) attack on poll maven Nate Silver for not favoring Clinton's odds heavily enough. At common law, it was treason merely to encompass the death of the king — that is, to verbalize the possible circumstances. In the media's echo chamber, it was a sin to express doubt, and damn the actual facts. Clinton and the establishment relied on things being true because we wanted them to be and because there was a polite consensus, not because of facts.

Your Facebook Page Is Not The World: We were told that the internet would expose us to more people, different people, different cultures. In reality, 2016 helps show us how we can shape our own private internet to confirm our beliefs. People mistook all their friends hating Trump for the whole country hating Trump. People mistook the unanimity of those they had chosen to follow as general unanimity. The exceptions tended to prove the rule. Twitter was notorious for bigoted pro-Trump trolls, but their existence may have served to make pro-Trump sentiment seem extreme, isolated, not formidable, and easily noticed. The closer we look at the internet and how it touches us, the more we should be called to a healthy skepticism.

We Are Not All Equally Vulnerable: Not everyone feels the same way about a defeat, because we don't share circumstances.

This result is genuinely horrifying to many people, and reasonably so. We can hope that Trump does not pursue policies overtly hostile to minorities of all sorts, and we can fight like hell if he tries. But whether you think Trump is racist or not, whether you think the result was an endorsement of racism or not, Trump's campaign was accompanied by a groundswell of explicitly bigoted sentiment, one that I maintain he courted and did not effectively reject. Across the country, ethnic and religious and sexual minorities are afraid of what will happen to them. My daughter, like many, has heard talk about which classmates would no longer be allowed to stay in America. I know people who are genuinely afraid, and I don't blame them — I think Trump's rhetoric invited the fear, some segments of his supporters made it a realistic fear, and that there will likely be an upsurge in bigotry and violence. As a well-off white guy in the suburbs I'm lucky — my kids, not white, are somewhat less lucky. My friends and neighbors, of various ethnicities and religious and identities, are even less.

It falls upon all decent people of good faith to defend our friends and neighbors and countrymen. It falls to us to speak out at bigotry even in the face of sneers and shouts of "Trump Trump Trump." If falls to us to continue to call out bigotry even when we are told that we've lost that fight. It falls to us to monitor, and resist, individuals who feel that Trump's election is a green light for bigoted violence. It especially falls to us to stand up and do our part to resist any state-sanctioned bigotry that President Trump might possibly pursue. That fight may involve pro bono help by lawyers, financial contributions to litigation and campaigns, personal support to the targeted, and tireless advocacy in public. It could, conceivably but (I hope) improbably, involve a commitment to violence.

It's a big, complex country. There are a lot of issues. You won't be able to stand up for them all, nor should you try. I submit that every American appalled or outraged by President Trump's election should pick an issue that is important to them, educate themselves thoroughly about it, and come together with fellow Americans to fight for that issue — to defend people in various circumstances who cannot defend themselves. The First Amendment remains my issue, and I will continue to ask for help defending it. More on that to come.

As we prepare to fight against bigotry, we should keep three things in mind.

First, as I said above, the internet is not the world. The most vivid and aggressive bigots online are, for the most part, profoundly marginal people. They were marginal before Trump and they'll be marginal after Trump. They are shock troops for campaigns, but they lack the ability to participate meaningfully in governing. That's why they're trolls. In assessing how bad things will be with President Trump, do not conclude that Twitter trolls will suddenly be striding the halls of power. They'll still be misfits.

Second, the wave of genuine overt ethnic nationalist political candidates will come next, emboldened by Trump. We will fight them. We will take them more seriously than we took Trump.

Third, it might be a good time to reflect on how we talk about race, gender, and sexuality. Trump struck a chord by fighting "political correctness." I've argued that blasting political correctness often involves whinging that we can't act like a dick without being called a dick any more. But it would be foolish not to inquire why Trump's message resonated. The steadily growing social consensus against bigotry is a good thing. But people are flawed — okay, people are assholes — and the consensus gets twisted and distorted and expressed in foolish, counter-productive ways. Some of America's admirable opposition to bigotry has been filtered through human frailty to become obnoxious, counter-productive, petty, and sanctimonious, an obsession with form over substance. I'm not saying you shouldn't explain what pronouns you prefer. I'm suggesting that maybe the way you convey the message might have an impact on your audience's receptiveness to other messages. It's just possible that "we'll grind these bigots under our heel until they talk right" is ineffective and might actually be more about our character flaws than winning. I'm saying there may be a better way.

The Button: Oh yeah. And we may face the end of human civilization, if Trump acts as President the way he acted as a candidate. My fear of Clinton was that she'd start the apocalypse after careful consultant with advisers and based upon thoughtfully crafted policies. My fear of Trump is more that he'll Trump himself into a geopolitical corner and use nukes out of petulance. So. We have that going for us. Good luck, I suppose, with all that.

In summary: think about what values are important to you, think about how best to come together to fight for them, and fight.

Yes, Vote Swapping, Vote Pairing, Trump Trading is Legal

From  It was very tempting to play the double entendre game, but ah, fuck it ... I can tone it down once and a while.

From It was very tempting to play the double entendre game, but ah, fuck it … I can tone it down once and a while.

There are a bunch of websites out there offering "vote swapping" or "vote pairing" or "Trump trading" or "vote pact" whatever you want to call it. The Reddit-lawyers are certain that this is "illegal." It is not illegal.

The idea started in 2000, when swing state voters who wanted to vote Green decided to hook up with safe-state voters who were voting for Gore. A Gore voter in Massachusetts would agree to vote for Nader instead. A Nader voter in Florida would agree to, in turn, vote for Gore. That way, the Greens get that much closer to 5% of the overall popular vote, thus getting federal matching funds in the next election – but it didn't risk pushing Bush into the White House.

In 2000, there was some question as to whether the idea was legal. I didn't have much question about it — it seemed perfectly First Amendment protected to me.

And, today, it seems to be coming around again — with a few websites and apps offering to pair you with a voter in another state to discuss swapping votes. In fact, there are a few that are even weighing what a vote is worth – so you might get three or four votes for Gary Johnson in California in exchange for a Nevada Clinton vote. Presumably, you can do it for a Trump vote too.

Of course, as soon as this popped up, it took about 30 seconds for the "Reddit Lawyers" to decide that this had to be illegal. I keep getting emails about it from people who are certain it is illegal. I guess they didn't do a little bit of research before complaining to me.

I actually wrote a paper on this issue in grad school (that I published), and then a few years later I upgraded the work to a thesis, which I then also published. The 9th Circuit cited that work (twice!) in coming to the conclusion that it was, indeed, First Amendment protected activity. See Porter v. Bowen, 496 F.3d 1009 (2007).

The Corruption of "Speech Has Consequences"

As I've said before, free speech has consequences, and ought to. Put another way, you're not the only one with free speech. Other people might respond to your speech with their own speech, and you might not like it. Response speech might be unfair, intemperate, immoral, or disproportionate, just like your initial speech. It's irrational to judge one and not the other. As a popular cartoon suggests, your right to be a jackass and other people's right to overreact are equivalent.

But I've noticed that the mantra "free speech has consequences" is increasingly abused. People invoke it not to mean "free speech has social consequences in the form of other people exercising their free speech," but to mean "the government can impose official consequences on you for speech it doesn't like." That's a corruption of the idea, and is usually a false statement of law. Censors like to invoke it; they're lying to you.

This week's case in point: the University of Texas. The UT Young Conservatives of Texas — previously famed for stunts like a campus-wide "catch an illegal immigrant" game — recently held an affirmative action bake sale. That's a bake sale that charges people differently based on ethnicity and gender to make a somewhat belabored point about affirmative action policies. It's a hoary rhetorical device that is frequently met with attempts at censorship by academic imbeciles.

The UT community reaction was mixed. The student paper offered an editorial acknowledging that the protest was protected by the First Amendment. The administration acknowledged that it was protected speech and could not be punished. So far, so good. But students also petitioned their government to expel the UT Young Conservatives of Texas, and student government members supported it. Student government member Ashley Choi invoked the consequence trope:

University-wide Representative Ashley Choi, an author of the resolution, called on the assembly to set a precedent that incidents like the YCT affirmative action bake sale will not be tolerated.

“Freedom of speech has consequences,” Choi told the assembly. “That’s why we’re here today.”

Well, no. You're there today, Ms. Choi, because you're a silly totalitarian thug who is trying to invoke state power to punish speech you don't like. You're there because you disdain fundamental rights and civic values. You're there because you perceive, perhaps correctly, that you are ineffectual at persuasion and therefore must use force.

Proponents of the petition overtly believe that UT students ought to be prohibited from questioning affirmative action. Put another way, students like Choi believe that students shouldn't be allowed to question whether and how the school treats people differently based on the color of their skin.

“When [universities] don’t have concrete policy defining what constitutes a hate crime, a lot of the lines get blurred, and a lot of the racist, misogynistic, homophobic and transphobic incidents happening on campus are disguised as freedom of speech or academic freedom,” said Choi, an international relations and global studies senior. “Because of [this] a lot of organizations, especially Young Conservatives of Texas, have been getting away with this kind of racist disaster.”

Ms. Choi should be permitted to advocate for unconstitutional things. The consequences for her doing so should not be official — that is, she should not be expelled or punished by UT. The consequence should be social. She and her censorious ilk deserve our open contempt.

The Facts About A Couple of Pending Lawsuits Against Donald Trump

I think that Donald Trump is the most terrible and dangerous candidate for President of my lifetime, and perhaps much longer than that. I think he and his movement pose a structural risk to the survival of America in several ways. I think that Hillary Clinton is a terrible candidate and would be a terrible leader, but would prefer she wins because I think her awfulness is not an existential threat, but more of the same.

But lying about Trump's legal affairs doesn't help. It helps promote lying, not Clinton (or anyone else.)

This week social media is full of a narrative that the mainstream media is "ignoring" that Trump is on trial for rape and racketeering in December. That's dishonest.

First: Donald Trump has been sued civilly by a woman who claims he raped her when she was 13. I am prepared to believe the very worst about Trump, and I don't know whether this is true or not, but I am more than usually skeptical based on the lawsuit's provenance. The case is not "going to trial" in December. It has been set for a completely routine early status conference in December that will lead to more complete schedules. As far as I can tell, no discovery has been conducted by either side. The case is an allegation against Donald Trump. The fact that I hate Donald Trump does not mean that the allegation is or is not true.

Second: Trump is also facing a civil suit accusing him of RICO violations. I wrote about the case months ago and dismissed the Trumpalo narrative that the judge — attacked by the Trump campaign for his ethnic background — was treating Trump unfairly. The case (and its companion case) accuse Trump of defrauding victims of the scamtastic Trump University. Here, there has been discovery, and the RICO charge survived summary judgment. That means that the judge found that the plaintiffs supplied some evidence which, if accepted as true, would be legally sufficient to support a RICO claim. RICO claims are usually bullshit, and even though this one survived the very low bar of summary judgment, I think it's still styled as a RICO more for public relations purposes than out of merit. Styling something as a RICO claim (rather than, say, a fraud claim) is attention-getting and emotive but rarely substantive. It is not accurate, as some are saying carelessly, that Trump is "charged with racketeering." This is a private civil suit. It may or may not go to trial when scheduled in late November; continuances of such trials are more the rule than the exception. Though the evidence is persuasive that Trump University was a contemptible scam and that Trump was personally in on it, shouting that "Trump faces a racketeering trial" represents a rhetorical trick, not an appeal to facts. Stick with the facts: a judge found enough evidence to go to trial on allegations that Trump was personally involved in defrauding Trump University "students." However, once again, that is an allegation, not a finding of credibility by a factfinder.

Trump is historically awful. That's not a reason to promote narratives that damage us as a nation. Lying about the nature of allegations, and treating allegations as presumptively true, damage us as a nation. They make us more like Trumpalos. Be better than that.