Why this Liberal is Writing a Check to the Rubio Campaign

The Day it all Went Wrong

The Day it all Went Wrong

Yes, I'm planning to vote for Bernie Sanders, but I'm going to cut the Rubio campaign a check just the same.  It won't be much, but, as the Supreme Court said, "money equals speech." Citizens United v. F.E.C., 558 U.S. 310 (2010).

So I'm going to speak in favor of Rubio, even though I am a Liberal.

Don't have a conniption. I'm not buying in to his politics. Although, I do respect how he gets them done.  For example, he has likely quietly killed Obamacare, without grandstanding.  But to be clear, I don't think I would ever vote for the guy.

So why am I "speaking" with my money to support his campaign?

Because a story is making the rounds that Marco was screwing a lobbyist. [UPDATE] And after this article originally came out, another hit piece made the rounds that Rubio's brother in law was a coke dealer, when Rubio was 16 — as if this has any bearing on his character or fitness for office. Is the story Are the stories true?  I don't know.  I don't care. I'm not linking to any sources, because I don't want to give it them any juice.

I have lost my patience with people using someone's private life against them for political gain.  I've lost my patience with a complete lack of privacy.  

When the Republicans wanted to hurt Bill Clinton, the best thing they had in their arsenal was a blowjob and a cigar.  The Liberals hate Sarah Palin, so they make a big deal out of the fact that her daughter keeps getting knocked up.  Remember Gary Hart? That is when it all changed — when a politician's personal life meant as much, if not more, than his politics.

Before Gary Hart, political journalists had a sense of limits. Every member of the White House press corps knew that JFK was screwing Marilyn Monroe and that Eleanor Roosevelt was a lesbian. Nobody reported on that, because there were fucking rules. You broke those rules when it mattered — like Watergate. But, not when it meant revealing a private affair.

Then, on May 3, 1987, the Miami Herald decided that it wanted to try and be the Washington Post by revealing a scandal. That day, it printed its story about Gary Hart maybe getting some tail on the side above a story about Iran-Contra. Then, the race to the bottom began, and the Washington Post saw the Herald's bet and raised. Paul Taylor threw down with “Have you ever committed adultery?”

And we all joined in. It sold papers. It drove Hart out of the campaign, and since that day in 1987, shit that really doesn't matter, now matters.

You know why?

Because of you.

Because you, no matter your political persuasion, play right into it — as long as the target is someone you politically disagree with.

I confess, so have I.

I justified these sins by only wagging my finger at "family values" politicians who are later found to be less-than-family-value-types.  That's what most Liberals say when they play the politics-as-revenge porn game. The schadenfreude was strong in me.  I wasn't playing the shame game with a politician's personal life because what he did was wrong. I did it because it "exposed hypocrisy."

That seemed to make it just fine.

Meanwhile, I was the hypocrite.

Either there is something inherently wrong with being a sexual libertine, or there is not. I say there is not. Therefore, who am I to shame even the most conservative family values type for being one in his private life? Does it change how he or she can do the job? History would say otherwise — that the only time that a private affair changed anything was when it was made into a distraction by the now-all-tabloid press. And don't blame them. Blame me (and yourself) because I bought right into it.

I had no right, but whenever it was a conservative, I stood in the crowd and threw stones.  I wasn't stoning the "sinner," but rather a hypocrite.

Meanwhile, when it was a liberal, I didn't say anything except "so what, he doesn't try to tell me what to do in my bedroom, why do I care what he does in his?"

That is the real logical hypocrisy.

The real hypocrisy is that we forgive the media for reporting on private sexual lives at all.  The real hypocrisy is that we will stand in the crowd and cheer against the other team, while most of us want to defend the right to our blowjobs being our private business, and nobody else's.  The real victim is privacy.  The real victim is debate and discourse. The real victim is us.

This discussion is timely, not just because it is campaign season, but because many good-minded people are cheering the downfall of "revenge porn" purveyor. Some scream for tougher laws with which to punish them.  Hooking up with someone should not mean that photos of it wind up all over the internet forever.  The same people who cheer for revenge pornographers to go to prison are entirely silent when the "revenge porn" is not a photograph, but words — as long as those words bring down a politician from the other team.

We all agree that publishing photographs of someone's most intimate moments is wrong, unless we have their consent.  Meanwhile, at least a photograph tells the truth.  This is that person.  This is a captured moment in time, unfiltered through the author's bias.  This is real.  I still do not approve of publishing such photos, but isn't that better than innuendo, interpretation, and story telling by someone who wasn't even there?  How is a story about someone's private affairs not more intrusive than a photo?

More importantly, why is this politics?  Where does this political tool leave us?  It winds up making politics a game almost entirely for those who can point to a past unsullied by the occasional acid trip in their teenage years, unstained by a random screw after a night of too many drinks, unmarked with a blemish or two on their record of indiscretions.

Do we really want to be led by men and women who have never gone off and gotten a BJ in the supply closet? Do we really want our leaders to be so devoid of grit and real-world experience that they don't know what a booty call is?

If the press (and its audience) operated by these rules during World War II, Winston Churchill would have been drummed out of office for being a drunken ass-slapping lout, FDR would have been on the front page in a wheelchair (and while I don't care, that wouldn't have projected "strength" the right way), while Adolf Hitler would have been the sexually-well-behaved, sober vegetarian, who was nice to dogs.

So lets get back to Marco Rubio.  

Did he have a fling with a lobbyist?  I call on all journalists to decline to confirm the rumors.  They won't take up the call, but maybe a few of us can start spinning the wheel the other way. I call on all voters to issue a collective "who cares?"  Better yet, no matter which party the candidate represents, send a check the next time a "scandal" breaks.

Mr. Rubio may very well be the Republican nominee, or he may not.  I want to hear what he has to say about how he will handle the economy, foreign relations, things that matter.  I wish we had heard that from Gary Hart. I don't care what Rubio does, or does not do, in his private life.  Let his, and every other, candidacy rise and fall on ideas, not revenge porn.

So why am I donating to his campaign?  It's called "making lemonade." A number of years ago, the Ku Klux Klan planned a march.  A group of us agreed to donate $10 to a minority scholarship program for every minute that the Klan march lasted.  That way, the negative actions of those awful people would benefit the very people they were trying to hurt.  If someone tried to hurt Rubio by leaking this rumor, be it true or false, I want it to do the opposite.

Further, it is an act of penance.  I wish to repent for the times I joined in on this kind of behavior.  We all deserve sexual privacy, and our leaders should be judged on how they lead, not how well they can fight ridiculous allegations that have no place in the public eye.

You Are Not Going to Resist the Government With Your Guns

"Bullshit quote memes piss me off so bad that I want to stab someone in their fat stupid face!"  - Fred Rogers

"Bullshit quote memes piss me off so bad that I want to stab someone in their fat stupid face!" – Fred Rogers

I'm not prepared to get rid of our right to keep and bear arms unless we do get rid of the Second Amendment. But, doing that requires tinkering with the Constitution, which makes me nervous. Once you open the hood, you never know what else someone will fuck with. With the state of our idiocracy, opening the Constitution is just as likely to wind up creating a right to keep and bear rape monkeys as it is to have its intended effect.

So it is what it is. We have the Second Amendment, and while we can debate all we want about how we should interpret it, DC v. Heller pretty much did that for us. It is an individual right, and anyone who suggests that we might even ponder a dissenting view is not very likely to make it through Senate confirmation hearings.

So here we are.

Fallacy Killer Number One – George Washington Did Not Say That

Lets talk about one justification for our right to keep and bear arms — the notion that we need the Second Amendment so that we can resist "tyranny." This George Washington quote sprouts up like mushrooms on cow shit every time there is a mass shooting – to remind us that even though a dozen kids just died, it is worth it, because one day we will want those guns – like the day that Obama comes to herd us into concentration camps where we will be forced to have free health care, or education, or Koran lessons, or whatever the fear-du-jour happens to be.

"A free people ought not only be armed and disciplined, but they should have sufficient arms and ammunition to maintain a status of independence from any who might attempt to abuse them, which would include their own government." -George Washington

Well guess what?

He never said that.

Here is what he actually said:

"A free people ought not only to be armed, but disciplined; to which end a uniform and well-digested plan is requisite; and their safety and interest require that they should promote such manufactories as tend to render them independent of others for essential, particularly military, supplies."

Pretty big difference by shifting a few words around.

Fallacy Killer Number Two – The Second Amendment Will Preserve Our Right to Revolt

Just because Washington didn't say that, it doesn't mean that there is no "right to revolution" theory to be found in the Second Amendment. After all, Jefferson did say "The tree of liberty must be refreshed from time to time with the blood of patriots and tyrants. It is its natural manure."

In 1776, when the height of military technology was a musket and a cannon, both of which you could make by melting down church bells, there might have been something to it. When the contest was little more than numbers of guns you could drag through the woods, and how to play the weather, the government probably did need to worry a bit about insurrection – and that might have kept them a bit more honest.

However, the first time someone tried that kind of thing, it didn't work out so well. In fact, Shays' Rebellion just led to Constitutional tweaks to make the federal government that much stronger. The Civil War led to even more, with harsher consequences.

If 13 states, with the assistance of at least one superpower, didn't manage to get their way through armed insurrection, what the hell makes anyone think that armed insurgency is going to preserve our right to … whatever … not have affordable health care, or to coffee cups that say "Happy Birthday Jesus" on them?

Ok, fine… lets come up with a cause worth fighting for. Lets say that Obama refuses to step down in 2016, and he not only declares himself dictator-for-life, but he also starts dressing like Ghadaffi, decrees that the national religion shall be Islam, the national language will be Klingon, there will be an efficient rail network in the United States, the writ of Prima Noctae is now in effect, and there shall be martial law to enforce all of the above, as well as any other laws that the President invents, on a daily basis.

We managed to preserve our right to keep military grade rifles and machine guns, so we all muster down on the Town Common with our guns. We tried voting. We tried protesting. This is a reasonable time to start with the armed insurrection stuff.

So, you, me, all our neighbors, hell our entire city builds a perimeter around it. We fill sandbags, we all have ammunition, we all have food, water, supplies, and most importantly, we are all unified and in complete solidarity.

And we stand there, resisting whatever it is the government was going to do to us.

And then they fly over with one jet, dropping one FAE bomb, and roll in with three tanks, and in about 12 hours, our "resistance" is reduced to a few smoking holes. The Tree of Liberty will get its manure all right, but it will be the manure that you shat out as you ran for cover, as long range artillery rains down on our town, as we get carpet bombed from 35,000 feet, and as the sky goes black with drones and cruise missiles.

We're screwed.

So… if the 2nd Amendment's "right to revolution" implication is real, both practically and legally, it must also include a right to possess tanks, jets, rocket launchers, etc. Your puny AK-47 is useless. So, we need to have at least some of our volunteer resistance show up with Stinger missiles, some anti-aircraft batteries, maybe a submarine or two?

Oh, you can't afford that?

That's ok, we have some patriotic citizens who can.

Who? The same billionaires who already own the government, that's who. So what do they want to "resist?" I could only see them wanting to resist checks on their own power. So, if the Second Amendment implies a right to resist the government, then that would mean that we need our billionaire friends to start stockpiling these weapons now. We need a Koch brothers airfield with a few fighters and bombers, and Adelson should have a fleet of tanks somewhere, and I guess that George Soros would bring his collection of nuke-armed submarines up to date, right?

So lets drop the crazy scenario of Obama-cum-Ghadaffi, and just think about something we were really likely to see upset us. Do you think for a moment that you, living in some apartment in Salt Lake City, or a house in Wyoming, or a condo in Boca Raton, would be ready to go to war with the Federal Government over the same shit that would get the Koch Brothers to fuel up their private stock of A10 Warthogs? Really?

Because you know what the billionaires want the government to stop doing? They want it to get out of the way of their becoming trillionaires. If you think that the Second Amendment means what the Supreme Court said in Heller, and you believe that is a good thing, because it gives you the ability to resist the government, you might want to play out the long game in your head. The long game here is this interpretation leads to private armies, raised by limitless wealth, all of which looks at our quaint little republican form of government as nothing more than a paper justification to have a flag waving over a few national parks.

I don't particularly love the federal government either, but ultimately, it is the only organization that we have where we can even hope to band together with enough authority to avoid being under the rule of the richest local family. Yeah, in large part, we're there already. Citizens United made sure of that. But, at least we still have some veneer of a republic.

So the next time you see some fool cheering the Second Amendment as the text that protects us from tyranny, ask them to play all four quarters of the mental game. It isn't romantic pictures of regular guys crossing the Delaware in rowboats. The endgame is Ancient Rome meets The Terminator.

[Update] – A few comments suggest that our modern military has not really been that effective against insurgencies in Iraq, Afghanistan, Vietnam, and elsewhere. I concede that point. But, I did not think I needed to waste a paragraph in the original discussing how I hardly think that Americans would be prepared to hide in the woods and caves, en masse, to support an American insurgency. Not a chance. When our intelligentsia is crying for "safe spaces," our would-be "Wolverines" scream to give up every civil liberty except the Second Amendment, who are we going to have lead this "insurgency?" Maybe the Crips and the Bloods. That ought to work out well. Sorry, but anyone you might want to be in power doesn't have the yarbles to do it, and those with the great bolshy yarblockos are not exactly going to set up a rebel government on the principles of Oliver Wendell Holmes.

Safe Spaces As Shield, Safe Spaces As Sword: Part II

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When I wrote yesterday about the notion of "safe spaces" being used to annex public spaces and dictate what may be spoken within them, I didn't imagine that modern academia would provide me with another example so swiftly. The place is the University of Missouri, where students accused the administration of indifference to overt racism. Activists demanded, and got, some high-level resignations over the matter. (They didn't get everything they wanted: as far as I can tell their distinctly Maoist demand for a handwritten confession and acknowledgement of ideological tenets was not met.) Agree with them or not, the Mizzou activists engaged in classic protected speech, at least to this point.

The safe-space-as-sword came during the victory celebration. The proposition was wantonly naked: the university's public spaces that activists had chosen to occupy were a no-dissent zone, where activists were entitled to be free from differing interpretations of events:

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The "parameters" in question were the public university's quad, one of the most quintessentially public spaces in American law and tradition. This sentiment — that students could take over a public space, use it to express their views on a public issue, and shut other views out of it in the name of emotional safety — was vigorously enforced by a crowd threatening a photographer and a communications professor shouting for "muscle" to help her expel media.

All of this — engendered by accusations of racism against African-Americans — comes within living memory of people asserting their right to make public venues culturally "safe spaces" free of African-Americans. Of course, those safety-minded citizens were somewhat less sophisticated in their jargon. They had signs too.

Some people look on this sentiment and despair. I don't. It's a good thing for America to see how mainstream the spirit of censorship is. Some people say the censorship discredits the substantive values the students are fighting for. I don't. The protest about racism rises or falls on its own merits; the anti-dissent sentiment is so banal and common in academia now, and students aren't taught any different. It would be like saying that t-shirts and bad hair discredit the ideas the protesters are fighting for. Some people suggest that these students (and professors) deserve to face the censorship they encourage. I don't. Deserve's got nothing to do with it. We routinely protect the freedoms of people who scorn freedom: Nazis marching at Skokie, Westboro Baptist Church members protesting at funerals, and other assorted nitwits who dream of an America where their whims are law. That's the deal. We're not going to change because some academics and students are thuggish louts. We're not them. The sentiment "only people we agree with deserve rights" is theirs, not ours.

Safe Spaces As Shield, Safe Spaces As Sword

This may come as a surprise, but I'm a supporter of "safe spaces." I support safe spaces because I support freedom of association. Safe spaces, if designed in a principled way, are just an application of that freedom.

That's why I didn't flip out last week when someone announced they were building "Pillowfort," a friendlier version of the social media site Tumblr. The announcement was met with swift jeers from the usual suspects. Folks derided the idea of a social media site that, even more than the famously left-dominated Tumblr, lets you limit with whom you interact and control who sees your content. But why? Pillowfort would be self-selecting. Nobody goes into the fort who doesn't want to be there. It's not like somebody is wandering onto your social media account and building a fort around you and telling you how you can interact with others. Pillowfort represents something that conservatives used to support in other circumstances: a private club, run by its own rules, with admission limited as its members see fit. If I'm not a member of the club, how its members regulate discourse within it is of little interest to me. Similarly, though organized Twitter blocklists are troublesome to some people, they don't bother me. They, too, are an application of freedom of association. Do I think some lists are organized around silly principles? Sure. But people are like that. Freedom of association is the right to organize ourselves in silly ways.

In short, I support people creating "safe spaces" as a shield by exercising their freedom of association to organize themselves into mutually supporting communities, run according to their own norms. But not everyone imagines "safe spaces" like that. Some use the concept of "safe spaces" as a sword, wielded to annex public spaces and demand that people within those spaces conform to their private norms. That's not freedom of association. That's rank thuggery, a sort of ideological manifest destiny.1 It's the difference between saying "I shouldn't be forced to go to a talk by this controversial figure" and "this controversial figure should not be allowed to speak at my school."

This week's example of safe-space-as-sword comes, like many bad ideas, from Yale. Gallons of ink have been spilled already; consider the coverage at The FIRE or Reason or Simple Justice. I won't repeat it all.

There are two remarkable and dangerous things about the notion of safe spaces imagined by Yale students.

The first is the location of that space. It's not a self-selected community or an exercise of freedom of association, because it lacks the element of voluntary entry. It's the safe space of an occupier: students demand that everyone in the dorm, or college, or university conform to their private-club rules. Your right to swing your fist may end at my nose, but their asserted right to safety surrounds you.

The second remarkable thing is the definition of safety. For the moment, let's accept for the sake of argument that some speech can make people genuinely unsafe. Imagine, perhaps, speech advocating for the physical abuse of minorities or urging vulnerable people to commit suicide. But the Yale incident demonstrates that this core concept, once accepted, can be expanded to cover anything. The argument seems to be that because we can imagine truly threatening speech, we must therefore accept uncritically other people's subjective beliefs about what speech is threatening. The speech at issue here was an email acknowledging that ethic Halloween costumes could be hurtful but discussing whether it should be the role of a university to tell students whether to wear them. This is safety as Ouroboros — it is unsafe to question what is unsafe, unsafe to discuss the concept of safety.

The Yale incident is being portrayed, reasonably, as an example of liberal abuse of the concept of safe spaces. But conservative culture is not innocent here. What is the "War on Christmas" but a sort of safe-space argument, an assertion that we have a right to be congratulated for our religious beliefs by corporate America even out in public spaces? And conservatives have long matched the imagined right not to be offended with an equally fatuous right not to be called offensive. There's a difference between calling someone an asshole and calling for someone to be fired or expelled or otherwise silenced. Eager to score points in a culture war, some folks conflate classic more-speech remedies like criticism with actual censorship. That doesn't encourage a principled approach to speech by anyone, let alone college students.

Ninth Circuit Imposes (Some) Limits On Cops Yanking Things Out of Your Ass

Mark Tyrell Fowlkes had a bad day.

For you or me, that means realizing that there's no credit left on our Starbucks card or our co-workers being annoying or getting a flat tire. For Fowlkes, it meant the Long Beach Police Department forcibly pulling something out of his ass.

LBPD, assisted by the DEA, were wiretapping and surveilling Fowlkes to see if he was dealing drugs. He was. LBPD arrested him once, caught him with drugs and a gun, and released him, probably to see where he'd lead them. A week later, they ran a pretextual traffic stop on him, arrested him, and took him to jail. There they strip-searched him:

Five officers observed the strip search, including Officer Jeffrey Harris and Sergeant Michael Gibbs, who brought along his taser, gloves and “assistance” in the form of additional officers because he thought Fowlkes might have drugs.

Officers believed that Fowlkes was not being cooperative displaying his anus and thought he was trying to push something in there. One Sergeant testified that he believed Fowlkes was trying to force an object further into his anus in order to destroy evidence. That's not how anuses work. That's not how any of this works. But to prevent Fowlkes from further hiding or destroying something in his anus, Sargeant Michael Gibbs “delivered a drive stun tase to the center portion of the defendant’s back” and the officers handcuffed him. Officers claim they could see a plastic bag protruding from Fowlkes. With Fowlkes cuffed, tased, and under the control of five officers, the officers decided that immediate action was needed to protect evidence. Sargeeant Michael Gibbs gloved up and pulled the object out of Fowlkes' rectum without seeking a warrant, without medical training or medical personnel, and "without the assistance of anesthesia, lubricant, or medical dilation," producing blood and feces.

So. Not as bad as the day David Eckert had when New Mexico police enlisted the help of a doctor to penetrate him repeatedly, but still bad.

The feds charged Fowlkes with drug and gun possession. That included a count based on the drugs pulled out of him. The trial court rejected his argument that the drugs seized from his anus were illegally obtained. Yesterday, in a revised opinion, the Ninth Circuit decided to put some limits on cops' freedom to root about in our collective asses.

The Ninth Circuit found the warrantless visual strip search reasonable, including the visual body cavity search, mostly on the grounds that the government arrests so many people it would be impractical to get warrants to strip-search them, and because jail safety is important because the government arrests so many people. As Dilbert would say, that's not being circular, it's having no loose ends.

But the Court noted actual limits on intrusions into our bodies. "Therefore, while visual cavity searches that do not require physical entry into a prisoner’s body are generally permissible without a warrant during the jail intake process, physical cavity searches generally are not." Did the Court recognize a general rule against sergeants yanking things out of our asses without a warrant? Not exactly. It's the Ninth Circuit, sure, but this is still America. The Court avoided a broad rule. "We need not and do not determine whether a warrant is required to seize evidence discovered during a visual strip search from an inmate’s body because the officers’ conduct here was unreasonable for other reasons." The Court decided that the search was unreasonable — and thus violated the Fourth Amendment — because the officers violated the jail's own written policies requiring a medically trained person conduct cavity searches, because Fowlkes posed no immediate threat, because the officers had no training in such measures that would let them evaluate whether they were safe or necessary, and because the officers did not take any steps to minimize trauma:

Here, the LBPD officers did not take adequate steps to minimize Fowlkes’ physical trauma. They did not, for example, use lubrication or ensure that the removal was conducted under sanitary conditions; they did not seek the guidance or assistance of medical personnel; and they did not assure themselves that removing the object from Fowlkes’ rectum was safe—indeed they did not know the size, shape, or substance of the object. Further, they did nothing to mitigate his anxiety or emotional trauma. They did not, for example, offer him options for removing the contraband or secure his compliance; they did not (and could not) assure him that the removal was safe or being conducted by a trained professional; and they did not (and could not) assure him that the procedure was legal and in keeping with LBPD policy rather than an arbitrary show of force.

The Ninth Circuit — bless its heart — seems to think that physical and emotional trauma were a bug, not a feature, of the officers' approach. But at least we know: there are limits to the judiciary's willingness to let cops conduct medical procedures on you.

So the Ninth Circuit reversed Fowlkes' conviction — on the one count arising from the drugs found in his rectum. It upheld the rest of the conviction.

Isn't justice majestic?

If You Watch the Tape, You'll Still See What You Want To

The pro-life advocacy group Center for Medical Progress went undercover to expose Planned Parenthood's practice of (legal) fetal organ harvesting during (legal) abortions and the subsequent (generally legal) sale of those organs (if certain regulations are followed). That sounds like pretty neutral language to me, though I will concede that (at least) the words "pro-life", "expose" and "sale" are somewhat fraught, but I don't mean any of those words judgmentally. CMP is indisputably pro-life; they had a specific agenda of discrediting Planned Parenthood for engaging in acts they believe to be immoral and illegal; and Planned Parenthood was indisputably selling fetal tissue and organs, though whether how it did so was illegal or immoral is above my pay grade in both respects and not the point of this post.

The point of this post is how two ideological sides see the same video and not only have different emotional reactions to the video but also make wholly contradictory fact claims about what the video shows.

To wit, on September 16, at the second GOP debate, Carly Fiorina referenced those tapes. Imploring Barack Obama and Hillary Clinton to watch the tapes, for the purpose of defunding Planned Parenthood, Fiorina said:

"Watch a fully formed fetus on the table, its heart beating, its legs kicking while someone says, ‘We have to keep it alive to harvest its brain.’"

It's two weeks later and it is still hotly contested whether she was telling the truth or not. Where you stood on the truth of this statement, as always, depends on where you sit. Generally pro-choice media outlets (Vox, Slate, Slate again) said that it was a lie. Generally pro-life media (The Federalist, Commentary, National Review) said that it not only was it not a lie, it was self-evidently true, which you would know if you watched the tapes, and the only reason to call it a lie was as part of a liberal media scam to keep people from watching the tapes.

I'll put my biases up here, so it doesn't look like I'm hiding them: I'm pro-choice and not conflicted about it. I don't see abortion as something cavalier, but I also don't suspect that the women who have abortions do either. I don't pretend that there isn't something sad about the termination of potential human life but I also don't believe that the moment of conception grants the fetus rights at the expense of the pregnant woman's autonomy. Where that leaves me is, more or less, in the murky moral/legal sphere of Roe v. Wade, where the fetus's rights are in conflict with the rights of the woman and, in general, the autonomous, adult woman wins. If that means that you are going to stop reading now, so be it.

I didn't want to watch hours of tapes to see if what is, at best, 10 seconds of footage were accurately described by Fiorina, so I asked Mollie Hemingway of The Federalist, a twitter pal with whom I share very little in common ideologically and she's even a Cardinals fan (ugh) to send me a link of the specific clip. Someone else jumped in and offered one, which Mollie didn't object to, so I assume it was the right clip. I watched it.

You can watch it for yourself here but I suspect it won't be easy viewing for everyone. The moment Fiorina describes was at about 6 minutes, though I watched all 10 minutes, since I promised Mollie I would.

The full tape has basically three elements: (1) guerrilla interview clips of various officials from Planned Parenthood and Stem Express – PP's organ-sale middleman – discussing abortions, organ preservation and sale; (2) Holly O'Donnell, a woman who claims to be a former employee of Stem Express describing, specifically and emotionally, the time she was allegedly asked to help extract the intact brain of a recently aborted fetus and did so; and (3) generic footage from other sources of what are purported to be aborted fetuses.

The footage from category 3 was on screen – and you can see the fetus's leg twitch – while the former employee got to the part of her story where she discussed being asked to assist in cutting out the brain. So, if you read Fiorina's statement again, it is literally true. When Slate or Vox say that "the tape doesn't show that" they are dodging a little. There is a fully-formed fetus; there is evidence of nerve activity; someone is talking about extracting a brain. Calling Fiorina's description a "lie" doesn't fully capture what the tape shows. Arguably, by calling it an outright lie, you steer people away from watching the tape and judging for themselves.

But to say that means that Fiorina was telling the truth, or that Slate/Vox are lying themselves is not honest at all. What the left-wing "factcheckers" are saying is that Fiorina is being intentionally deceptive, carefully choosing words that literally describe the tape while misleading the listener into thinking other than what it is. I would argue that Fiorina is implying that the tape contains footage of an abortion, in progress, during which someone gives the instruction to cut out a fetus's brain. That it is a person recalling her experience over archival footage of an allegedly aborted fetus is not a small difference. Either the tape contains a violent surgery on a still-live fetus, or it contains a person reporting it secondhand. Fiorina told the truth in the incredibly circumscribed way a big brother on a road trip is telling the truth while he waves his finger a half-inch from the face of his agitated sister, as he chants "I'm not touching you" after his parents have admonished him to stop touching his sister.

Both sides more or less concede this. Buried in all the factchecker articles is a sentence something like this: "The third Human Capital video has stock footage of a fetus kicking on a table … It also has an interview with Holly O'Donnell,… [who] says that, in her former job, she was once instructed to procure the brain tissue from the remains of an aborted fetus.". Likewise, buried in all of the defenses of Fiorina is something like this: So: Fiorina may have misstated things a bit, since the relationship between the footage of the kicking baby and the horrific actions described in the interview is more one of video illustration rather than video documentation of the incident itself.

If I had to choose from the binary of true/false, I would say Fiorina's statement was false. If I'm being generous, I think one could argue that Fiorina's statement was truthy because, if you are passionately pro-life, an aborted fetus plus the testimony of someone who is wracked with guilt over having participated in abortions in the past isn't significantly different from actual footage of doctors discussing cutting out a brain as the fetus lies, exposed, before them. If I were being less generous, I'd say that if you find the contents of the tape sufficiently appalling that it would motivate people who see it to reject abortion or, at least reject funding for Planned Parenthood, it isn't a big deal to oversell what the tape actually shows with a delicately parsed description.

I understand why opponents of abortion want the videos shared widely. In the same way I, as an opponent of the death penalty, instinctively think video of a man drooling and convulsing as the execution drugs ravaged his body would motivate people to forbid execution by the state. After watching this video, and my own lack of reaction to the video, I'm no longer convinced that's true for either abortion or the death penalty.

Other drafts of this post had more detailed descriptions of the video, but you can watch the video. If you think abortion is akin to murder, a doctor describing fetal organ extraction the way a mechanic might talk about loosening a rusty bolt will be disquieting (if you are pro-choice you'll probably have my reaction, and it will sound like ordinary people talking shop). Despite my caveats above I don't think Ms. O'Donnell is lying; I believe she is emotionally devastated. The video is sad. But nobody at Slate or Vox or the Washington Post or anywhere else said that the videos weren't sad. What they said was that there wasn't video of an abortion in progress, in which doctors casually talked about brain extraction. That's what Fiorina was clearly implying at the debate. It is a specific, compelling image. And it isn't on the tape. So to me, to Vox, to Slate, Fiorina's statement was a calculated lie.

But I don't think I was the audience for Fiorina or the tapes at all. She said what she said during a primary for the Republican presidential nomination These tapes are meant for people who are already pro-life, to spur them to action, and that's the audience that candidates in a GOP primary debate are talking to. To that audience, the distinction between what Fiorina said was on the tapes and what they'd find if they actually watched is small beer. To them, Fiorina told the truth.

These worlds won't, and probably can't, be reconciled.

In Roca Labs Case, FTC Takes Novel Stand Against Non-Disparagement Clauses

Last week Adam ably covered the Big Bad News for our old customer-threatening lawyer-suing pink-paste-purveyor Roca Lab: the Federal Trade Commission has sued it for unfair trade practices in violation of the FTC Act.

Most of the FTC's complaint is routine and can be summarized as "Roca Labs sells crap and lies about it." One part, though, seems novel: the attack on Roca's habit of using non-disparagement clauses to threaten customers who give it bad reviews. The FTC's third claim directly addresses that:

COUNT III
UNFAIR USE OF NON-DISPARAGEMENT PROVISIONS
64. As described in paragraphs 12-42 and 44-52, in numerous instances, Defendants have used in the sale of their products, and purported to bind purchasers to, contractual provisions that prohibit purchasers from speaking or publishing truthful or nondefamatory negative comments or reviews about the Defendants, their products, or their employees.

65. Defendants’ practices as described in paragraph 64 have caused or are likely to cause substantial injury to consumers that is not reasonably avoidable by consumers and that is not outweighed by countervailing benefits to consumers or competition.

66. Defendants’ practices as described in paragraph 64 therefore constitute unfair acts or practices in violation of Section 5 of the FTC Act, 15 U.S.C. § 45(a) and (n).

This sounded novel to me, so I reached out to the FTC for comment. On Monday, one of the FTC attorneys on the case confirmed "[t]his is the FTC’s first case alleging that a seller’s use of non-disparagement provisions is unfair under Section 5 of the FTC Act." The FTC's press release on the case also mentions that theory.

The FTC's aggressive move reflects continuing nationwide pushback against companies that use nondisparagement clauses as a method of deterring negative consumer feedback. California recently banned such clauses in consumer contracts, and Congress considered, but as convention requires did nothing about, a nationwide ban.

Why the interest? Probably because of the Streisand Effect. Roca Labs isn't the only company that's made headlines with splashy and foolish non-disparagement bullying against customers. Internet bauble-seller KlearGear flamed out in 2015, and the bumptious MedExpress hit the pavement hard and wound up paying attorney fees. Even obscure small businesses have found themselves thoroughly media-stomped when they've tried to invoke such non-disparagement clauses.

A non-disparagement clause in a consumer contract reflects a business you can't trust. But if you've signed one unknowingly, now you have more leverage — if you're threatened, the FTC's suit against Roca suggests that the FTC may view the enforcement of such clauses (at least in extreme cases) as an unfair business practice.

Meanwhile, Roca Labs has entered a stipulated temporary restraining order with the FTC. This stage — preliminary relief — is often where the FTC kills your company dead by convincing a federal judge to issue an order freezing all operations and assets. By stipulating, Roca Labs' attorneys may have been able to negotiate the terms of the order to be a little less onerous. But the order is still a grave development for Roca. It prohibits Roca Labs from making many of their core marketing allegations about their product, prohibits them from invoking their non-disparagement clauses or threatening customers who complain about the product, freezes all corporate assets except for use in normal business expenses, gives them 10 days to provide an accounting of assets, and allows the FTC to take expedited depositions about their products and assets. The order permits Roca Labs to continue to pursue its previously-filed frivolous defamation lawsuits, but with this FTC case those suits have become unwinnable. This is a devastating order.

Revisiting The UN Broadband Commission's "Cyberviolence" Report

So last week I talked about the UN Broadband Commission's "Cyber Violence Against Women And Girls" Report. After looking at some of their sources, and after some more thought, I think I was too uncritical of it. So, I'd like to make a few more observations about why it's troubling to me as a free speech advocate. After that, I'll briefly address why I didn't do better in the first place.

The UN As A Vehicle For Human Rights Abuse

In my first post I already explained why I think we must carefully scrutinize any UN-promoted restriction on speech: the UN has a very mixed record on speech and is heavily influenced by forces that promote a "balance of interests" approach or even a "no blasphemous speech" approach.

I should have emphasized that it's worse than that. The UN and other multinational organizations are increasingly plagued by authoritarian regimes trying to set up ostensibly neutral rules that would allow them to suppress dissent. China, Russia, and Saudi Arabia recently pushed for a UN agency to have more authority over the internet, and in turn cede that control to member states. This would make it much easier for totalitarian regimes to stop online dissent and find dissenters. Also, I did not emphasize clearly enough that the global experience with blasphemy law shows that it is disproportionately used against ethnic and religious minorities in countries with authoritarian governments, and should be seen less as a sincere effort to protect the good name of Mohammed and more as a way to increase state power over those minorities.

In short, when it comes to potential speech restrictions, working with the UN carries substantial risk that the rules you propose will be used abusively by the strong against the weak, and by totalitarian governments against dissenters. If you find that improbable, consider what use, say, Saudia Arabia could make of a very flexible international norm against online "harassment," given their brutal enforcement of narrow sexual norms.

Wait, LYNDON LaRouche? Lyndon LAROUCHE?

In my first post I noted and expressed concern about the report's odd assertion about the relationship between video game and movie violence and real world violence:

There is widespread representation of VAWG in mainstream culture, including in contemporary and popular music, movies, the gaming industry and the general portrayal of women in popular media. Recent research on how violent video games are turning children, mostly boys, into ‘killing zombies’ are also a part of mainstreaming violence. And while the presentation and analysis of this research is beyond the scope of this paper, the links to the core roots of the problem are very much in evidence and cannot be overlooked.

But I didn't read the footnote and look at what they cited for that proposition. Always read the footnotes! The footnote leads us to this monstrosity, a mish-mash of every 1990s trope about how movies and games are turning our kids into killers, combined with 1980s tropes about Dungeons & Dragons, not to mention tropes about psychiatric treatment:

It may well be that the children on Ritalin, on Prozac, Luvox, and other psychiatric drugs, are walking human time bombs.

This is a real thing, in the article, which is cited as support for that "killing zombies" remark in the UN report:

In a press release Feb. 1, 2000, Midway Games reported the “top ten in killer games,” that is, the leading U.S. video-game sofware companies, as ranked in order of their unit sales:
1. Nintendo of America, Inc.: Manufactures Pokémon, Game-Boys, and equipment for satanic video games.

2. Electronic Arts, Inc.: Produces Road Rash, which features a hit and run, criminal assault on police.

3. Sony Computer Entertainment: Equipment for satanic video games. Was a defendant in the lawsuit on behalf of the three girls killed by video game addict Michael Carneal, the 14-year-old shooter in Paducah, Kentucky.

4. Midway Home Entertainment: Mortal Kombat, Doom, Quake.

5. THQ, Inc.: Summoners, which deals with evil sorcerers, satanic monsters.

6. Acclaim Entertainment: Hard Core Wrestling (such as nails in head, strangulation), Hard Core Revolution, and Real F’n Wrestling.

7. 989 Studios (Sony): Produces Everquest. (In this, followers of the god Cazic-Thule inflict “pain, misery, violence, torture, living sacrifice.”

8. Activision, Inc.: Soldier of Fortune (assassination, race war).

9. Namco Ltd.: Soul Calibur. In this, “The Evil Seed is loose, threatens to swallow souls in its chilling wake.”

10. Hasbro Interactive: Official U.S. distributor of Pokémon (abbreviation for “Pocket Monsters”), the killing game designed for toddlers beginning at 2 and 3 years old; Dungeons and Dragons, the medieval satanic and magic fantasy game; Risk II, a “ruthless quest for world domination". One of the Hasbro Board members is Paul Wolfowitz, the co-head of George W. Bush’s team of foreign policy advisors.

The source is written by Michele Steinberg, a former fraud codefendant of Lyndon LaRouche, whose obsession with the just-a-coincidence-they're-Jewish ""Wolfowitz cabal" infects even her discussion of video games.

The report is full of other footnote foolishness as well (like citing a file on somebody's hard drive as a source). But this citation . . . well. As some advocates have criticized how women are treated in video games and online, they've faced claims that they aren't just hostile to bad behavior, they're actually hostile to the whole hobby of gaming and to its entire culture. It's hard to imagine how the UN Broadband Commission could have done a better job making that narrative more credible. Steinberg's article is a shotgun blast of crazy discredited nonsense and culture-nannying dressed (utterly unconvincingly) as science. I will spare you the parade of links showing (1) how violent crime trended down strongly while movies got more violent and video games got more everywhere, (2) how schools are safer than they have been in years, and (3) how multiple studies disclaim a connection between movie or game violence and real-world violence.

This is the equivalent of submitting a serious proposal to Congress advocating for changes in the federal budget and, for the proposition that the NASA budged should be reduced, linking to sites that claim that the moon landing was faked.

One bad citation wouldn't normally destroy the credibility of an entire report. If any one can, this one does. It's used to support a drop-in that violent movies and video games are something the UN might want to look at. It is so freakishly inappropriate that I can only imagine four scenarios: (1) there are no sensible people involved in the preparation and approval of the report, (2) any sensible people involved with the report did not read the report any more carefully than I did, (3) the people behind the report believe this Jack Thompson/Tipper Gore/Jack Chick malarkey, or (4) the people behind the report don't particularly care about the reliability of the sources for their pronouncements. Whichever one is true, I wish I could take a mulligan on calling it a "thoughtful approach to a serious problem." But I did what I did.

Expansion of the Meaning of Words

In my prior post I noted that the report had some strong rhetoric, but didn't spent much time questioning it. As Scott Greenfield pointed out I didn't ask how the Commission was proposing to define "cyber violence." I didn't ask that because it seemed like a pointless project; absent some specific new law or policy to which the definition would apply, it's a theoretical exercise.

But then I remembered that I've groused before about how our rhetorical approach to categorizing speech can have long-term effects on how we think about whether it should be permitted and even on how we treat it legally.

Seen from that perspective — that the report is not offering mere hot air, but proposed norms — it's considerably more troubling than I suggested.

Here's how the report at page 6 defines cyber violence against women and girls, or Cyber-VAWG:

Cyber VAWG includes hate speech (publishing a blasphemous libel), hacking (intercepting private communications), identity theft, online stalking (criminal harassment) and uttering threats. It can entail convincing a target to end their lives (counselling suicide or advocating genocide). The Internet also facilitates other forms of violence against girls and women including trafficking and sex trade. Not only does commercialized sex on the Internet drive the demand for the sex industry overall, it also allows traffickers to use the legal aspects of commercial sex on the Internet as a cover for illegal activities. Some of the main uses of the Internet by traffickers include: advertising sex, soliciting victims on social media, exchanging money through online money transfer services, and organizing many of the logistical operations involved in transporting victims.

Let's take these one at a time.

"Cyber VAWG includes hate speech (publishing a blasphemous libel)." This is rather incoherent. Does "hate speech" refer to hateful speech about women as a class of humans? It's not clear — and in America, the only "hate speech" against women that would fall outside the protections of the First Amendment would be speech falling into traditional exceptions: true threats, incitement to imminent serious harm, and so forth. What's "blasphemous libel?" Well if anyone would know, it would be the Canadians, but it seems even they don't.

"Identity theft:" well, sure, identity theft is illegal, and can be used to harass. I'm not sure that it's more a concern for women than for others, even online. And I'd want to point out that a satirical account in someone else's name, used to mock them, is protected speech, not "identity theft."

"Online stalking (criminal harassment):" Yes, both harassment and stalking can be criminal. Under U.S. law, at least, it requires proof of repeated unwelcome contact with intent to put the target in fear.

"Uttering threats." Yes, true threats are illegal. That means threats that a reasonable person would take as a serious statement of intent to do harm.2

"It can entail convincing a target to end their lives (counselling suicide or advocating genocide)." Well, trying to convince someone to kill themselves is horrific and can be a crime outside the First Amendment. Talking about genocide is something completely unrelated, and under U.S. law is only a crime if it involves a true threat or incitement to imminent lawless action.

"[Sex trafficking discussion]" Well, sex trafficking certainly can involve terrible abuse of girls and women. But the assertion that criminalizing prostitution protects women generally is, and should be, a subject of vigorous debate. Also, note how the passage about sex work treats money transfer and advertising as part of violence against women.

Why would you call something "violence," when it's not violent? Usually it's to co-opt the legal and social norms associated with violence. It's like when you re-define "terrorism" so broadly that you can use the resources and power of the anti-terrorism fight to, say, police DVD piracy.

I'm fine with improving our ability to detect, stop, and punish true threats, which I think are legitimately termed violence. Harassment and stalking, given a principled definition, are at least violence-adjacent. I'm fine with problems like identity theft being treated seriously. But — here, even before specific laws have been proposed — I'm skeptical about and hostile to the expansion of the word "violence" in an effort to dramatically increase anyone's police power, let alone the UN's.

Some of the rhetoric offered by Anita Sarkeesian in support of the report suggests that is the aim of at least some supporters:

Through her work with Feminist Frequency as the star of a video series critiquing depictions of women in the media, including video games, Sarkeesian also found herself caught up in the GamerGate firestorm. "I have been a target for three years non-stop," she told those in attendance, "of egregious online harassment in all levels."

She defined this as not just the violence that the group has formed to combat, but also the "day-to-day grind of ‘You're a liar,' ‘You suck' … making all of these hate videos on a regular basis to attack us and the mobs that come from those hate videos."

Some of the abuse Sarkeesian has described constitutes unlawful true threats and actual harassment and stalking. Not all of it does. Calling her a liar or saying she sucks is protected speech, unless it's directed in repeated unwelcome communications directly to her (like phone calls and emails). Videos saying that she sucks are also protected by the First Amendment, unless they contain true threats or incitement to imminent lawless action. This is not the first time she has conflated genuine threats of violence with criticism (as have some of her detractors, in the other direction).

I was right in saying that we need to scrutinize any specific proposed laws or policies that arise from this report. But I was wrong to downplay the rhetoric as mere rhetoric, and to say it was premature to criticize it. On a more serious look, the report's rhetoric suggests an effort to use the language of violence to cover non-violent and protected conduct. That is of particular concern since it is directed at the UN.

Those are not the only things wrong with the report, but those are the ones that strike me most forcefully. In discussing the Commission's references to foreign concepts of free speech, its invocation of zero tolerance, its suggestion that companies would be required to abide by particular codes, about how industry codes can be used against the people they are supposed to help, and by noting that the report relies on questionable sources about "revenge porn" law, I was right.

It's Easy To Get It Wrong.

I screwed up. I didn't blow a closing argument or put the wrong pacemaker in someone or crash a car, but I offered my thoughts without exercising due care. The easy reason was that I rushed, because I was busy. The harder reason is that some of my attitudes colored my approach.

I expected that the report would not be read, that its contents would be overstated and distorted, and that it would be treated as an open and explicit call for censorship because of the people involved with it. I wasn't wrong to think that. But I was wrong to let that thought stop me from a more careful examination, and to allow myself to breeze by the implications of the rhetoric while looking for the specific proposals that weren't there. If I had looked at it from a "is this rhetoric bad or not" standpoint, instead of a "imagine the reaction to this" viewpoint, I would have gotten it right.

I'm likely to get things wrong again. I'll do my best to make them right again. And naturally, it would be pointless to write to please any audience.

Edited to add: I was invited to talk about this on CBC radio, with the results here. Be kind; it was 4:30 in the morning.

A Few Comments on the UN Broadband Commission's "Cyber Violence Against Women And Girls" Report

Update: Further information suggests I was far too benefit-of-the doubt here, which is what happens when you write fast and when you generally despise some of the people involved. Some of this is still right, but regard the conclusions and characterizations with skepticism. Taking a second look. See, e.g., the fact that they cited this [footnote 118] for the video game discussion I cite below. When I'm wrong I'm wrong. Will revisit.

The United Nations Broadband Commission For Digital Development has released a new report called "Cyber Violence Against Women And Girls: A World-Wide Wake-Up Call." You can find it here.

I have a few comments about it from a free speech advocate's standpoint. I am not going to talk about it from a cultural standpoint. Any post here about gender-based harassment generates bad behavior, as I've long noted. I am aware that there is a political controversy over whether online harassment of women is understated or overstated, whether discussion of such harassment is a feminist plot to steal our precious bodily fluids, and so forth. My view is that online harassment of women is a problem and a legitimate subject of discussion, but I am uninterested in that discussion today. I'm interested in a discussion of the free speech implications of this report. If you are a person who feels that it would be morally wrong not to share your views on those subjects whenever physically possible, and that it would be like unto fascism for even one post not to showcase those views, please go elsewhere to one of the innumerable other venues for that discussion. Thank you.

Any Report From Any UN Body About Speech Warrants Scrutiny

I don't trust the UN on free speech issues. You shouldn't either. In a world where Iran wins a seat on the UN's Commission on the Status of Women, people who care about women's rights should also be skeptical. Pro-censorship forces continually pressure the UN for international laws and norms restricting speech — for instance by demanding laws outlawing blasphemy. Allow me some unabashed American exceptionalism: that's a bad thing. The United States' vigorous approach to protecting free speech and rejecting blasphemy laws is good, and foreign norms that encourage blasphemy laws often used to persecute religious and ethnic minorities are bad.

The UN's response to calls for censorship is mixed. Occasionally sensible officials have recognized the role of censorship (and especially blasphemy laws) in promoting oppression of the weak by the strong. But just as often the UN produces troubling rhetoric like this from the Secretary-General:

"Freedoms of expression should be and must be guaranteed and protected, when they are used for common justice, common purpose," Ban told a news conference.

"When some people use this freedom of expression to provoke or humiliate some others' values and beliefs, then this cannot be protected in such a way."

The UN also has a pattern of avoiding discussions of censorship that might offend member states and uttering windy statements about how freedom of expression must yield to various sensibilities.

So: I submit that a report by the UN on an issue touching upon freedom of expression deserves close scrutiny. The report does not require special scrutiny because it is about harassment, or the treatment of women: it requires scrutiny primarily because of its source.

Scrutiny Means Actual Scrutiny, Please

But "scrutiny" means actually reading the report and not relying on shrill and partisan summaries and characterizations.

I read the report with an eye towards evaluating what specific policies the Commission is advocating. Taken from that perspective, the report is more respectful of freedom of expression, and less aggressive about potentially censorious policies, than I feared.

Like any UN report — strike that, any report ever — this report contains a lot of nonspecific rhetoric. It also contains very troubling discussions of violence and threats against women, both online and off. They are worth consideration apart from the discussion of free speech issues.

General Concerns About How The Commission Views Free Speech

The report contains rhetorical references to the potential conflict between free speech and policing online conduct:

In the context of cybercrime, stakeholders, including the UN system have noted the need to balance rights. Groups such as APC have cautioned that in the name of spurious measures to “protect” women online we need to be weary of censorship, and that efforts should strive to “balance rights to privacy, freedom of expression and freedom from violence and harassment for all individuals in constitutional, civil and criminal law.”

That's a general value statement, not a policy. But it implies a non-American understanding of rights. It invokes Censorship Trope Five: balancing speech and other rights. Other countries take an occasionally ad-hoc "balancing" approach to speech — that in any particular circumstance whether speech is protected depends on whether the right to speak is outweighed by some other interest. The American approach recognizes categories of unprotected speech (like true threats) but forbids the government from "balancing" speech outside those categories. So: unsurprisingly, the Commission is taking an international approach to speech rather than the American one I support.

Concerns About the Broadband Commission's Specific Policies

I suspect some people will characterize the report as advocating censorship. That's a misleading characterization. There are UN reports that openly advocate for abandoning American-style free speech norms and "balancing" free expression with various rights. This isn't such a report; it's not advocating for broad speech codes. The report spends most of its time focusing on progress within existing frameworks. But it does have some proposals that trouble me as a free speech advocate.

The report proposes a "multi-level approach" to online threats against women, made up of "sensitization" (that is, changing cultural norms about what conduct is socially acceptable), "safeguards" (working with industry to develop methods of protecting people from online threats) and "sanctions and compliance" — where the action is.

Here's the parts that are worrying.

First, rhetorically, the report advocates a "zero tolerance for violence against women" mantra. I understand and share the anti-violence sentiment, but experience teaches that framing a response to a problem as "zero tolerance" leads to terrible results. That's not a problem with "women's issues," it's a problem with any perceived social ill. Telling people to take a "zero tolerance" approach effectively tells them to suspend critical judgment when addressing a problem. It doesn't lead to treating a problem seriously; it leads to treating a problem anxiously. When applied to something as complicated as the internet, that's potentially disastrous.

Second, the report advocates building relationships with private companies and helping them to develop methods to deter, stop, and report online threats. That's fine; private companies are private and are not bound by the First Amendment. Twitter is no more bound to tolerate online douchebaggery than Nordstrom is to let me shop naked. But the report suggests that the Commission (as one would expect) doesn't really grok private industry. It seems to envision a partnership of mutual values, as opposed to a partnership that persuades private industry that it is in their economic interest to prevent online threats and harassment. More alarmingly, the report seems to advocate government regulations requiring online platforms to take particular approaches to harassment prevention. The devil there could be in the details: regulations could easily amount to content-based censorship.

Third, I believe the report does not sufficiently consider how the industry measures it advocates can be used to suppress speech, including (perhaps even especially) women's speech. The call for more transparency in how online platforms implement anti-harassment programs is sensible. But nobody ever build an automatic system that internet users can't manipulate. Anti-harassment protocols will always be used disingenuously. That doesn't mean industry shouldn't try; it means there should be more critical thinking about whether they will help or hurt. I'm particularly concerned about pushing industry to unmask anonymous speakers more easily, a terrible idea that I think will more promote harassment than prevent it. The report refers approvingly to some such measures without, I think, adequate attention to their risks to free expression and to safety.

Fourth, the report makes gratuitous and controversial claims about the dangerousness of expression. Specifically, it is receptive (credulously, I submit) to the notion that there's a causal relationship between video game and movie violence and real-world violence:

Core roots of mainstreaming violence. There is widespread representation of VAWG in mainstream culture, including in contemporary and popular music, movies, the gaming industry and the
general portrayal of women in popular media. Recent research on how violent video games are turning children, mostly boys, into ‘killing zombies’ are also a part of mainstreaming violence. And while the presentation and analysis of this research is beyond the scope of this paper, the links to the core roots of the problem are very much in evidence and cannot be overlooked.

I'm not saying that proposition has no evidence supporting it, but at a minimum the evidence is controversial and subject to question. It's troubling that a UN report would present such a one-sided and frankly alarmist view of an issue so directly connected to speech.

Fifth, in reviewing various responses to online harassment, the report is insufficiently focused on the distinction between plausible laws and implausible laws, noting them both approvingly. But all laws are not alike. For instance, the report approvingly cites "revenge porn" laws. But some such laws are so badly drafted that their drafters have conceded defeat. In citing authorities, the report does not attempt to distinguish between advocates of revenge porn laws who attempt to frame laws that will pass constitutional muster and advocates who are effectively seeking to change legal and constitutional norms to accommodate their revenge porn laws. The distinction is meaningful, and the report's uncritical approach to content-based censorship proposals concerns me. Even when it appears to be rhetorical rather than substantive (like the introduction's puzzling reference to "blasphemous libel" as a form of violence against women), it's a danger sign.

Be Skeptical

The report is not the orgy of censorship that ideological enemies will claim. It's a thoughtful approach to a serious problem. But careful examination of any resulting policies is warranted.

Postscript: Scott Greenfield not unreasonably asks how the Commission defines violence or threats against women. I don't think it seriously attempts to do so. It lists some undefined subcategories of conduct that can be violence. This would be more of a concern to me if the report proposed specific laws against undefined violence. Once the Commission attempts a definition, or offers a specific policy that requires a definition, I'll critique it.

Let's Applaud Wesleyan's Student Censors For Honesty

Earlier this week I covered a tumult at Wesleyan, where students claimed to be silenced by a student newspaper op-ed they didn't like.

The student op-ed criticized the Black Lives Matter movement in a manner that strikes me as more bootlicking than racist. This yielded a cringing and cringeworthy apology from the Wesleyan Argus' staff (bad) and a vocal commitment to free speech by Wesleyan's President (good).

Some Wesleyan students have responded with a petition and list of demands, which 171 students and alumni have signed as I write this. Here's a hard copy in case it gets disappeared. Edited to add: looks like critics are editing it to satirize it, so look at the hard copy instead for an accurate view of what it looked like.

I like the petition. I like it because the students aren't pretending to be anything but censorious: it's honest.

The students signing the petition agree to "boycott" the Argus, "recognizing that the paper has historically failed to be an inclusive representation of the voices of the student body." So far, this is a call for responsive expression, which is fine. From there it gets scary. "Most specifically, it neglects to provide a safe space for the voices of students of color and we are doubtful that it will in the future." In context, it appears that "safe space for the voices of students of color" means "a newspaper that won't print anything that this particular group of students of color finds objectionable," an aim worthy only of our open scorn.

"This boycott includes recycling the Argus," the petition continues. What does "recycling" mean? It means taking and throwing away copies of a free student newspaper so that others can't read content you don't like, and it's a nationwide problem, as the Student Press Law Center documents. People who respond to student paper content they don't like by trashing the paper to suppress it are thug trash, and it's nice of them to sign a self-identifying petition.

The petition goes on to demand that Wesleyan defund the Argus until their demands are met. Those demands include "Monthly Report on allocation of funds and leadership structure" (that is, more intensive control of a newspaper by student government), "Required-once a semester- Social Justice/Diversity training for all publications (Via Elisa Cardona/SALD office)" (meaning mandatory ideological conformity training on publications via school administration), and "Open spaces dedicated for marginalized groups/voices if no submissions: BLANK that states: 'for your voice” on the front page" (meaning, quotas for expression by particular predefined groups, somewhat like the thankfully-abandoned and Orwellian-named Fairness Doctrine).

Bear this in mind: Black Lives Matter is an explicitly political movement with explicitly political goals. Many of those goals — like questioning and monitoring disproportionate police violence against young black men — are worthy. But the notion that there is only one correct way to think about a political movement is monstrous and un-American. Wesleyan is a private school; they can abandon basic notions of free expression and turn their school into a training ground for ideological conformity if they want to. But isn't it thoughtful of these students and alumni to say exactly what they want, without equivocation? They've thoughtfully provided a list of people never to hire.