Some Peace of Mind for Free Speech in Massachusetts


Not just another band out of Boston

Massachusetts has given the world its fair share of musical greatness.  From the Dropkick Murphys back to Jonathan Richman, The Cars to the Pixies, Aerosmith to Mission of Burma.  Bim Skala Bim to the Lemonheads.  The Unband to the Mighty Mighty Bosstones.  Lets put it this way, your musical life would suck without the 617/413 and later fragmented area codes.  (Fine, we apologize for New Kids on the Block.  That abomination cancels out the points we gained from Til Tuesday and Billy Squier.)

But, I gotta be honest.  Like any Patriots fan has to admit that the Pittsburgh Steelers are, to date, the better franchise.  It doesn't mean I love the Pats any less, but… you might love your wife til the end of time, but you got a set of eyes, and you can tell if another guy's wife has a better ass than yours does.  Admitting it, if true, just means that the rest of your opinions are valid, since you're not full of shit.

The fuckin unband

The fuckin' Unband

So, in that vein, I'll say that even though I personally put the Unband (the ultimate rock out with your cock band of all time) and The Modern Lovers (say no fucking more) at the top of my Masshole playlist, I can't deny that the Boston is King, A-number one, Snake Fucking Plisskin riding a Dragon while swinging a mountain lion by the tail above his head, fucking rulers of the universe, when it comes to Boston music.  You can go into a party in Melrose and put on Mission of Burma, and some asshole is gonna say "Turn that shit off."  Almost everyone loves the J. Geils Band, but put that on in a crowd that would rather hear the Mighty Mighty Bosstones and there's gonna be words.

You wanna please everyone, then you play Boston.  When New England finally secedes from the rest of this sinking ship of a country, I'll be lobbying for Roadrunner to be the national anthem, but I wouldn't be surprised if it lost to "More than a Feeling," and I wouldn't mind either.  (Although, the smart asses in New England would probably pick Billy Squier's The Stroke, just to fuck with everyone).

Brad Delp was about as close to royalty as you can get in Massachusetts.  He was the lead singer for Boston, and his iconic voice ran through the soundtrack to at least two generations of New Englanders.  Sadly, he took his own life in 2007.  (May his soul sit eternally in a sky box at Fenway, eating an endless supply of lobster rolls, sitting in a kiddie pool full of Sam Adams beer, flanked by two hot chicks who shut the fuck up through the whole game).

Boston might have a lot of music, but it only has two newspapers — if you use that term loosely.  We got the Boston Globe, which is pretty decent, and we have the Boston Herald, which is sorta like the New Kids on the Block.  NKOTB was bullshit, but anything with Mark Wahlberg's brother is not all bad.  And, The Herald has its moments.  But, for the most part, it is not exactly the kind of place that Edward R. Murrow would want to visit, if he came back to life. But, if he did, the Herald would put him on the front page with some crazy all-caps headline, and wouldn't even mention what he used to do for a living, before he went on a brain-eating rampage in Allston.

After Delp voluntarily merged with the infinite, the Herald ran a series of stories suggesting that Donald Scholz, the band's leader, was responsible for Delp's suicide.  The series relied on "unnamed sources" as well as Delp's estranged wife, Micki, and used bullshit headlines like “Pal’s snub made Delp do it: Boston rocker’s ex-wife speaks.’’  Scholz sued The Herald and its columnists for defamation, for implying that he had a hand in Delp's death. (Scholz v. Delp at 2).

Just before Thanksgiving, the Massachusetts Supreme Judicial Court (SJC) ruled that the articles were non-actionable opinion.   (Scholz v. Delp at 4).

The articles were, to say the least, not the greatest journalism, but not exactly the worst.  The writers carefully crafted a story to fit a sensational narrative, implying the opinion that Scholz caused Delp to off himself.  But, the key word here is "opinion." And, although that opinion was nasty and harmful, that doesn't make it defamatory.

The SJC quoted the landmark case, Gertz v. Welch: "However pernicious an opinion may seem, we depend for its correction not on the conscience of judges and juries but on the competition of other ideas." (Scholz v. Delp at 12).

While "[a] statement of fact is not shielded from an action for defamation by being prefaced with the words 'in my opinion,'" Levinksy's, Inc. v. Wal-Mart Stores, Inc., 127 F.3d 122, 127 (1st Cir. 1997), quoting Haynes v. Alfred A. Knopf, Inc., 8 F.3d 1222, 1227 (7th Cir. 1993), a statement that does not contain
"objectively verifiable facts" is not actionable.(Scholz v. Delp at 12).

The SJC noted that in some cases, one might be able to come up with a 100% clear reason as to why someone might commit suicide, but this is not one of those cases. Therefore, it was clearly speculation.

The statements at issue could not have been understood by a reasonable reader to have been anything but opinions regarding the reason Brad committed suicide. "[I]f it is plain that the speaker is expressing a subjective view, an interpretation, a theory, conjecture, or surmise, . . . the statement is not actionable." Haynes v. Alfred A. Knopf, Inc., supra at 1227. See Milkovich v. Lorain Journal Co., supra at 9. See, e.g., Gacek v. Owens & Minor Distrib., Inc., 666 F.3d 1142, 1147-1148 (8th Cir. 2012) (concluding that "anyone is entitled to speculate on a person's motives from the known facts of his behavior," and that statements that plaintiff "pushed [the decedent] over the edge," was "the straw that broke the camel's back," and "was the reason for [the decedent's] death" were nonactionable because they did not express objectively verifiable facts, but, rather, were defendant's "theory" or "surmise" as to decedent's motives in taking his own life [citation omitted]). Cf. National Ass'n of Gov't Employees/Int'l Bhd. of Police Officers v. BUCI Tel., Inc., 118 F. Supp. 2d 126, 131 (D. Mass. 2000) ("the interpretation of another's motive does not reasonably lend itself to objective proof or disproof").(Scholz v. Delp at 12-13).

The SJC also noted that the articles themselves were somewhat gossip-column like, and contained cautionary language that would alert the reader to the fact that they were not making a conclusive statement of fact — rather that they were sharing an opinion.

Of course, just because something is labeled "opinion," that does not necessarily make it legally so. I can write "in my opinion, Bob Smith uses cocaine." Well, Bob just might have a case against me, if I do that. But, if I say "Bob Smith had white powder on his nose, kept sniffing, and he was talking really fast, so my educated opinion is that he was probably on cocaine." That would be another story. Why? I disclosed the facts that formed the basis for my opinion. Similarly, I could say "Bob was slurring his words, burping a lot, and kept saying how much he loved everyone, therefore my opinion is that he was using cocaine." That would be a pretty clearly off-base opinion, but at least I shared my data.

The SJC tackled this issue:

Even a statement that is "cast in the form of an opinion may imply the existence of undisclosed defamatory facts on which the opinion purports to be based, and thus may be actionable." King v. Globe Newspaper Co., 400 Mass. 705, 713 (1987). By contrast, an opinion "based on disclosed or assumed nondefamatory facts is not itself sufficient for an action of defamation, no matter how unjustified or unreasonable the opinion may be or how derogatory it is." Dulgarian v. Stone, 420 Mass. 843, 850 (1995), quoting Lyons v. Globe Newspaper Co., supra at 262. (Scholz v. Delp at 17).

By laying out the bases for their conclusions, the articles "clearly indicated to the reasonable reader that the proponent of the expressed opinion engaged in speculation and deduction based on the disclosed facts." See Lyons v. Globe Newspaper Co., supra at 266. It does not appear "that any undisclosed facts [about Scholz's role in Brad's suicide] are implied, or if any are implied, it is unclear what [those might be]." See Cole v. Westinghouse Broadcasting Co., 386 Mass. 303, 313 (1982). Moreover, it is entirely unclear (even assuming that facts are implied) that they are defamatory facts. See id. (Scholz v. Delp at 19).

The SJC upheld the trial court's dismissal of the claims at summary judgment, noting that Summary Judgment is a favored means of resolving defamation cases. (Citing New England Tractor & Trailer Training of Conn., Inc. v. Globe Newspaper Co., 395 Mass. 471, 480 (1985), citing Cefalu v. Globe Newspaper Co., 8 Mass. App. 71, 74 (1979), cert. denied, 444 U.S. 1060 (1980)).

I wouldn't call this a SLAPP suit. It wasn't just a rich asshole trying to suppress criticism. Imagine if you were slathered on the front page of a tabloid, essentially being blamed for your long-term colleague's suicide. I can really empathize with Scholz here. But, the First Amendment demands that we have room for discussions like this one, and it gives The Herald the latitude necessary to keep its cart open in the marketplace of ideas.

I just really wish that this was not Delp's legacy. They weren't just another band out of Boston, and Delp wasn't just another kid from Peabody, Mass. But, I suppose that there's some poetry in it — that voice that we cranked in the dunes at night at Good Harbor Beach, or as we drove ridiculously fast up Route 128… that voice won't ever leave anyone's head, if that head spent any formative years in New England.

Perhaps it is poetically appropriate that Delp now lives on, giving us all the Peace of Mind that we are that much more free because of him.  I hope that whatever remains of him can find just a little slack in that.

For What Is A Man Profited, If He Shall Gain A Ph.D And Lose His Sense Of Humor?

Deborah Finding, the most pompous academic in Britain, knows hatred when she sees it.

Hit British TV comedy Little Britain has been accused of promoting prejudice and hatred.

A study by a London School of Economics academic says many of the show's characters – from teenage mum Vicky Pollard to proud gay Daffyd – are stereotypes based on people's dislike of others of a different class, sexuality, race or gender.

For those who have not seen it, the BBC comedy Little Britain is based on recurring character sketches. Among these are Daffyd Thomas, the only gay in the village of Llandewi Breffi. For those who have seen the show (which has to be watched a few times before one learns the characters sufficiently to appreciate it), but lack a sense of humor, Daffyd is funny because he identifies himself through victimhood to such an extent that he cannot see that there are plenty of well-adjusted and accepted gay people in his village, and he resents it when his neighbors fail to discriminate against him.

In short, he is exactly the sort of gay person, a humorless victim unable to laugh at himself, that a nitwit academic like Deborah Finding would wish to see more of. Perhaps that's why she hates him so, even as she acknowledges that Matt Lucas, the show's developer who plays Daffyd, is himself gay.

No doubt Finding also finds self-hatred in the work of Chris Rock.

A short clip (with a bit of NSFW language):

For fans of, as a prude like Professor Finding would classify it, bawdy comedy that at its best approaches Monty Python, I highly recommend the show, which can be seen on BBC America, or the American version currently running on HBO, which while still quite funny does suffer a bit because the makers are somewhat less familiar with what makes America funny than they are with what makes Britain funny.

As a bonus, both shows feature scandalous narration from Tom Baker, better known as the Doctor Who with the long scarf and the curly hair.

Via Andrew Bolt, and run about a month or two ago at another site.  Professor Finding, however, still asserts that Little Britain is hate speech, so it's as relevant as ever.

Geometry Wars

The Eyeballing Game is a test of skill, precision, and spatial geometry. With an average error of 7.7 in my best game, it demonstrates that I have no business with engineering, woodworking, draftsmanship, or shooting pool.

It is nonetheless an endlessly compelling timewaster.

Via Zack Hiwiller, and originally posted at another site.

The Dead Walk

Next week is zombie week. Valve software, the maker of Half Life and Team Fortress 2, finally releases the game I've most anticipated this year, Left 4 Dead, a multiplayer cooperative shooter featuring hordes of the hungry, risen dead. Even with the Prince spelling, I'm charged.

But I was most disappointed to hear, courtesy of my friend and sometimes commenter Andrew, that Left 4 Dead will feature perhaps the most annoying fad of the past decade: running zombies.

Zombies, quite simply, cannot run, and in my perfect zombie apocalypse certainly do not. As a Pennsylvania sheriff put it, "They're dead. They're all messed up."

When well made, zombie films are the gold standard in horror, and the gold standard in zombie films is the work of George Romero, whose first three films in the field, Night of the Living Dead, Dawn of the Dead, and Day of the Dead (which has undergone a critical reassessment after a poor initial assessment, an assesment that was always unfair) are among the best horror movies ever made. Romero's work is set in our own world, but one where the dead have begun to walk for reasons never quite explained (a viral infection of the living which kills and reanimates, and radiation brought back by a space probe, a la H. P. Lovecraft but with man going to meet the things which should not be known rather than them coming to us, are suggested but never confirmed). Being dead, their brains are damaged. They have no rational thought, but they do have full use of the lower portions of the brain, which are all about aggression and hunger. So they want to eat us.

The terror these films inflict is not just because they feature graphic and disturbing images of cannibalism. Death carries its own terror, as does isolation. A world in which one is isolated among the dead carries the two worst fears, death and being utterly alone, to an extreme, as Richard Matheson's short story I Am Legend, a 1950s vampire novella which is at the root of all of these films and which still packs a punch today despite the best efforts of Will Smith, attests. Romero, to the extent he improved on I Am Legend, did so by making its ideas explicit and by adding a jolt of social satire, which is quite evident if one can look beyond the gore.

But included within the fear of death is the fear of decay, the fear of aging run amock. Slow zombies, the dead that walk, don't remember, don't learn, embody the fear of aging as well as death. Recent remakes of Romero's work, however, feature zombies who can run and can learn. They miss the point. A zombie that can run, rip doors off their hinges, and learn how doors work is not a reflection of our own fears about ourselves, and the future that awaits us all in which we consume ourselves if we're lucky enough to live into ripe old age.

Simon Pegg, the star and creator of Shaun of the Dead, a hilarious comedy which pays tribute to Romero's films, yet is also quite scary in its own right and ultimately faithful to Romero's horrifying work, has much more to say about why zombies must not run.

(Note: If you think you've seen this post before today, you have. It was written last November at another site, where some of the content will eventually wind up here as reruns. I quite enjoyed Left 4 Dead, but haven't been able to play it as much as I'd like.)

Big News In The War On Ibuprofen

The Supreme Court has granted certiorari in an appeal by the Safford Arizona Unified School District, on the question of whether school officials were justified, under the Fourth Amendment, in strip-searching thirteen year old Savana Redding.  The goal of the search was to determine whether Ms. Redding had smuggled contraband ibuprofen into the school, in violation of a "zero tolerance" drug policy.  An en banc panel of the Ninth Circuit Court of Appeals earlier held that a civil suit filed by Ms. Redding could proceed.

Many moons ago, in reviewing this case, I stated the following:

This being the Ninth Circuit, and this being America, it would not surprise me at all if the Supreme Court were to grant certiorari and reverse this holding. While the Circuits might divide on a case as revoltingly silly as this one, if there is a general rule in American jurisprudence on the rights of children suspected of drug possession in school, it is that they have none.

The question boils down to, may adults strip and humiliate a thirteen year old girl for possessing a legal product, so long as the adults are protected by their status as school employees?  Is membership in the American Federation of Teachers the equivalent of a badge?

I stand by what I wrote earlier: If this had happened anywhere but school, they'd all be in jail.

[rerun] Which Fork Do I Use To Kill Myself? (Updated 12/08)

[Originally written 2005; originally posted here as a rerun last year.]

This Saturday night I sat stupefied by that question.

You see, I couldn't drink myself to death, because I had to drive home. And clearly I couldn't live any longer. Because the wedding singer had just belted out the Titanic song like Ethyl Merman with a cattle prod up her ass, and just when I dared hope, just when it seemed that it was over, she started belting it out again. In fucking Farsi. Because it was a Persian wedding. So every she she sang, say, "Say You'll Love Me" from Phantom of the Opera, she had to repeat the whole thing in another fucking language. [Read more…]

[Rerun] My Breakfast With Andre, Chapter II

This true story, the second of two parts, was posted at Octopus Overlords over a period of months in 2005. I’m modestly pleased with it. Since recent events have called to mind how impermanent the websites we surf can be, I’m taking the opportunity to preserve it here. All names, including my own, have been changed to protect the guilty. As the most guilty party, my last name is rendered here as “Smith.”

The earlier portion of this story can be found here.

[Read more…]