By this time on Friday, evading taxes in offshore accounts will change from illegal to what is technically called "super-illegal." An amnesty for repatriation of those funds expires tomorrow and those who don't come in from the cold will face substantially higher fines or worse.

The New York Times, always sympathetic to the little guy, knows just who to sympathize with: the spectacularly rich tax dodgers who now have to come clean and pay the piper. The bad guy, of course, is the rat: the international banks that can no longer afford to shield scofflaw depositors because they have themselves been busted.

And those depositors, or at least one, is taking personal responsibility to a new low.

At least 4,000 clients of UBS and other private banks have come forward in recent months … One of those clients was Bruce Krasting. Last December, UBS … told him that the bank was closing his offshore account and mailing him a check for the balance: $830,000.

Mr. Krasting, 59, realized that if he didn’t own up to the I.R.S., he had just two other options: Find another offshore bank in Switzerland or the Caribbean — and risk being discovered — or leave a trail for the I.R.S. by depositing his money into a United States bank.

“I knew I was walking into a buzz saw that was going to cost me and my family half a million dollars, and that it was triggered by UBS,” Mr. Krasting, a former Wall Street trader, said.

Triggered by UBS? It was triggered by the U.S. Government's success in catching his accomplice in a scheme to avoid taxes. In essence, Mr. Krasting is arguing "I am doing an illegal thing. I realized that if my accomplice came clean, I'd have to either do another illegal thing or also come clean. Stupid accomplice!"

If he has a valid argument that the money isn't taxable, he can make it; nothing prevents him from challenging any assessment in Tax Court. I also understand that he would be upset at his partner in crime for failing to take the fall for him. I do NOT understand why he – much less the New York Times – would expect me to consider him a sympathetic victim.

Mr. Krasting, you are welcome to cry into your remaining half-mil until you calm down.

(Hat tip to F-Train for sending me the article)

Almost everyone who has spent any time on the internet has seen YouTube parodies using a clip from Downfall, the 2004 movie about Hitler's last days in his bunker. The parodies swipe the electrifying scene — in which Hitler, informed of a grave defeat by his generals, flies into a rage — and alter the subtitles to make it seem that Hitler is reacting to any anachronistic thing you can imagine, from the geeky (like being banned from X-Box Live) to the pop-cultural (like Kanye West being a dick). Before the parodies got old, they worked because some of them had cleverly written dialogue, and because of the ironic contrast between the banality of the chosen topics and the seriousness of the original scene.

The Downfall parodies were so ubiquitous that The Telegraph did a story on the top 25 best ones, and the New York Times — which is quick to pick up imagined trends, but glacial at detecting real ones — covered it a full year ago. The meme is featured prominently in the film's Wikipedia page.

And yet, when some low-level schlub at the National Republican Congressional Committee made a Downfall parody video featuring Hitler reacting angrily to Obama's timidity on health care (with Hitler probably voicing the anger of a hypothetical Harry Reid), several prominent bloggers went nuts. Glenn Thrush of Politico reported it breathlessly, giving it a "bad behavior" tag. Prominent liberal blogger Digby at Hullabaloo captioned it "Hate speech," and railed against a perceived double standard about Hitler comparisons. Neither blogger showed the slightest twinkle of comprehension that this was simply an old riff on a tired meme.

This suggests that (1) they had no clue about the widely publicized meme, and didn't do the roughly 30 seconds of digging about the movie that it would have taken to recognize it, or (2) they knew about it, but deceitfully decided not to mention it. I rather think it's #1. Now, not everyone keeps track of every lolcat that hops out of the basket. But really — this was not remotely difficult to figure out. I'm all for calling out obnoxious rhetoric, and I do it here sometimes. But it's possible, when you combine it with an unwillingness to research and a hair-trigger attitude, to descend to an insufferable level of prissiness about people making fun of your side.

(You can observe that level of insufferable prissiness in the comments to those two threads, where critics argue earnestly that whether or not the Downfall joke is used to make fun of X-Box live, it's just evil and over the line to use it to make fun of politicians.)

Just two quick links concerning the bowl we are currently circling:

1. The Transplanted Lawyer discusses this Secular Right post, demonstrating that everyone with a chance of winning the Republican 2012 presidential nomination will favor teaching "Intelligent Design" in schools. My dream of a fiscally conservative, small-government, civil-liberties-respecting, scientifically-literate, personal-responsibility-favoring Republican party? About as likely as my dream of being lead tenor at the Met.

2. Jon Stewart — who is, I'd point out, merely a partisan comedian — eviscerates CNN and illustrates how completely useless the popular media has become in fact-checking important issues. Goat-fuckers, indeed.

Back when I worked as a judicial extern, and then as a law clerk, one of the greatest challenges was to draft orders for the judge to address motions filed by deranged people. Often their legal theories were so bizarre and removed from real-world jurisprudence, their factual assertions so unbalanced, that even summarizing them for the purpose of addressing them was a Herculean task. My co-clerks and I were always tempted to have a DENIED: BATSHIT CRAZY stamp made for our judges. But both judges I worked for explained that summary denials never fixed the problem, and that both justice and the sound administration thereof required courts to address crazy motions as if they were serious, and analyze them based on established standards, rather than throwing up our hands.

Courtesy of Below the Beltway, I see that United States District Court Judge Clay D. Land of the Middle District of Georgia agrees. Faced with the bizarre sideshow antics of birther hive-queen Orly Taitz, Land has sanctioned her $20,000 — and done so in a masterful order that takes her and her arguments in court deadly seriously. The order is a model of judicial calmness in the face of unhinged shrieking by a litigant, dispatching Taitz's nutty arguments one by one. (I particularly like Tatiz's argument that the judge must have received improper ex parte orders from the Obama Justice Department because some birther saw a black guy at a local Starbucks who looked just like Eric Holder.) The judge even manages some real eloquence in his devastatingly well-documented rebuke. Good for Judge Land. Read the order through the link.

Certain people are impressed by the credentials issued by professional organizations like state bars, medical boards, and other professional licensing boards. By "certain people," I mean "people not particularly familiar with how professional credentialing agencies work." Certainly professional credentialing agencies do some good. They occasionally manage to kick the most egregious wrongdoers out of their respective professions, and they enact standards of practice that are not entirely lobbyist-written and that are sometimes even enforced. For the most part, though, they are guilds, formed and operated to perpetuate themselves and to squelch competition. That's why state bars (for instance) devote a disproportionate amount of their time and resources going after a few schlubs who try to practice law without a license.

Yet people tend to look at a certificate from a fancy-sounding professional organization and conclude that (1) the service that this person is offering me must be worthwhile, because it is backed by a licensing organization, and (2) this person must really be qualified. Add to that our susceptibility to junk science, and you've got a potent marketing tool for snake-oil salesmen.

Trust someone just because they have a professional license? You might as well trust the cat.

And here I mean that quite literally.

BBC journalist Chris Jackson decided to investigate the various entities that offer credentials to "hypnotherapists." Oh, he didn't apply himself. That would be silly and embarrassing. He applied in the name of his cat, George.

In the UK, George was registered with the British Board of Neuro Linguistic Programming (BBNLP), the United Fellowship of Hypnotherapists (UFH) and the Professional Hypnotherapy Practitioner Association (PHPA).

In fact, believe it or not, George was not technically eligible to be a hypnotherapist under the regulations promulgated by any of these entities. For one thing, he has not been spayed. And he's a cat.

The entities have said they are sorry, and it won't happen again:

A PHPA spokesman said the organisation makes great effort to ensure every applicant is a fully-qualified hypnotherapist.

Well, that explanation is a bit regrettable. What great effort did they make here? I can see the examination report now. "Cons: tends to lick own anus, is a cat. Pros: v. mesmerizing eyes and purr, good manner with patients."

By the way, Chris Jackson and George are not breaking new ground here. Dr. Steve Eichel did the same thing nearly 20 years ago in America with Dr. Zoe D. Katze, Ph.D., C.Ht., DAPA:

Dr. Katze's credentials look impressive. She is certified by three major hypnotherapy associations, having met their "strict training requirements" and having had her background thoroughly reviewed. She holds a Diplomate in psychotherapy from an association that claims to promote the highest standards among psychotherapists.

Zoe the Cat's qualifications appeared so impressive that she was eventually solicited to write a journal article.

Dr. Eichel's thoughts about credentialing as a business are well worth reading. And the tales of George and Zoe illustrate the peril of relying on credentials. There are people out there who make money by credentialing people. They make money credentialing people whether or not the people are qualified to do the work they are credentialed for, and whether or not the thing they are credentialed for has any worth to consumers. Caveat emptor. When you are considering paying for a service, there's no excuse for not Googling the service-provider's credentials, and for exploring whether the service is genuine or junk science to begin with.

If you don't, don't blame us when you shell out $150 per hour to be stared at by a cat.

Welcome to the latest installment of Road to Popehat, in which we shine a light on the searches that bring, well not you, but those other people, to our corner of the web.  First, we're getting a bit tired of Evony searches.  For everyone coming here by way of:

• Evony boobs, Evony breasts, Evony pictures

This is for you:

and indeed, all of those who search for images of large-breasted women circulated by the makers of a lousy game, may we introduce you to our friends:

• Should rapists have their testicles whipped?

and

• torture his penis

And of course, you last two will want to meet our friend:

• Andrea Dworkin nude

But it's not all fun and games this month.  Many of our searches involve serious business, such as:

• what type of attorney would I use to sue a restaurant that does not accomadate [sic] obese people?

Look, if it's that expensive, why not just visit an all-you-can-eat buffet?  Sure the owners will cry, but they make their money back on the skinny folks.  Like Mister Chekhov:

• Wegetarianizm

And presumably this person:

• largest bug in the world

isn't very hungry either.  Or perhaps she's desperately hungry.  In either case, a cheap buffet would fix that, especially if it serves rabbit:

• you made the bunny cry

Finally, we present the searches which, for some reason, have topped our meters this month.

• come play my lord

No.

• axolotl

I can't say it, much less spell it.

• autism spectrum disorder foundation

Just don't. The all-you-can-eat buffet would be a better deal.

• big ass trucks

I don't know whether this refers to the trucks, or to the cargo.  And finally, our leading search for the second month running:

• Dora the Explorer

Again, just don't.

Poe's law was originally uttered in the context of the evolution debate: "Without a winking smiley or other blatant display of humor, it is utterly impossible to parody a Creationist in such a way that someone won't mistake for the genuine article." Now this precept is gradually expanding to encompass other topics where reality is so bizarre as to render satire both futile and indistinguishable.

Case in point: Hugo Chavez.

Chavez is already a vocal booster of a proposed law to ban violent video games and "bellicose" toys in Venezuela. Naturally Chavez — who is something of a subject matter expert on bellicosity — has arranged for the consumer protection agency he controls to determine what games and toys are acceptable in his nation. The proposed law would also require the government "to promote the production, distribution, sales and use" of games that teach kids "respect for an adversary." Inasmuch as Chavez views proper treatment of adversaries to include threats, raids, and jail, this could actually be fun. I'm thinking a Rainbow-Six style shooter.

Anyway, now Hugo is going a step further, to the point where I have to serious question whether he is just fucking with us. He and his cronies are launching a War on Golf.

“Let’s leave this clear,” Mr. Chávez said during a live broadcast of his Sunday television program. “Golf is a bourgeois sport,” he said, repeating the word “bourgeois” as if he were swallowing castor oil.

Now, maybe it's just because I've never once been able to take seriously anyone who uses "bourgeois" in a non-ironic manner. But this has to be mere theatre. Right? Tell me that it's just theatre?

Still, even if he moves on to tennis and badminton and windsurfing and yachting, it's unlikely that Chavez will lose his amen corner at places like the Huffington Post, where any criticism of him draws angry comments, and where the predominant approach to him is awe.

Our readers know that I recently grumbled through several evacuations during the Station Fire north of Los Angeles. Now comes Act II, or "Mud: The Revengening."

Kathy tips me off to L.A. Times coverage of a rather grim mudslide risk assessment for the La Canada and La Crescenta areas. Apparently when you burn up all the underbrush on a mountainside in a thirty-year-fire, you can expect a sizable chunk of the mountainside to come down for a visit after the next big rain. La Crescenta and La Canada are on steep foothills, and have equally steep, straight, north-south streets leading up the foothills into the side of the Angeles National Forrest and the mountain. The suspicion is that certain of those north-south streets are going to turn into mud chutes during the first big rain.

Which might be tonight.

This weekend, we learned from a knowledgeable source that the risk assessment for mudslides is somewhat grimmer than the report reflects, and that the Sheriffs will be evacuating our area if there are heavy rains. Our house is almost certainly not in danger of significant damage; a front yard full of mud and debris is probably the worse we can expect, and that's if the mudslides are truly epic. However, if the main artery leading up to our dead-end street turns into a mud chute, we're cut off from the world until it is cleared. Looks like it's time to pack a go-bag.

Welcome to Blawg Review 233.

Everybody understands Mickey Mouse. Few understand Hermann Hesse. Hardly anyone understands Albert Einstein. And nobody understands Emperor Norton.

– Malaclypse the Younger.

Today marks the 150th anniversary of one of the greatest political and legal declarations in American history: the October 12, 1859 decree by Joshua Norton I, Emperor of the United States of America and Protector of Mexico. If we ran the schools, every schoolchild would be required to memorize the words of the only monarch ever to preside over the United States:

It is represented to us that the universal suffrage, as now existing through the Union, is abused; that fraud and corruption prevent a fair and proper expression of the public voice; that open violation of the laws are constantly occurring, caused by mobs, parties, factions and undue influence of political sects; that the citizen has not that protection of person and property which he is entitled to by paying his pro rata of the expense of Government–in consequence of which, WE do hereby abolish Congress, and it is therefore abolished; and WE order and desire the representatives of all parties interested to appear at the Musical Hall of this city on the first of February next, and then and there take the most effective steps to remedy the evil complained of.

The evil that Emperor Norton abolished, of course, was the Congress of the United States of America.

Opinions vary on just who Joshua Norton, or Norton I, was. He may have been insane. He may have been a taoist saint. For those who've never heard of the man, we should offer some background on man and monarch Joshua Norton, Emperor of the United States and Protector of Mexico.

Born in England in 1819, Joshua Norton emigrated to the United States in 1849, settling in San Francisco during the California gold rush to begin a career as a merchant. Norton lived his first years in this country as a typical tradesman, until an unfortunate reverse caused by speculation in the Peruvian rice market wiped out his fortune. After a sojourn in the wilderness, Joshua Norton returned to San Francisco and on September 17 1859 declared himself Norton I, Emperor of the United States. Though some considered the "Emperor" insane, the majority of his fellow citizens observed and respected Norton's title. Norton I printed his own currency, which passed as legal tender in the stores of San Francisco, received petitions from grateful subjects, and issued many, many decrees, which were observed to greater or lesser extents.

Norton never put on airs or ruled for self-aggrandizement. To the extent his subjects respected his orders, they did so because it amused them to do so, or (as will be explained below) because they were moral and made sense. In short, Norton was that rarest of creatures: a sovereign who truly ruled with the consent of the governed. Or perhaps he didn't rule at all. Perhaps he was a madman. Either way, Norton represents a vision in stark contrast with the dominant paradigm of western civic thought. Like Lysander Spooner, like Joe Hill, Norton today is revered by anarchists, libertarians, discordians, and other fringe types.

But where Spooner and Hill were crushed by the larger society against which they railed, Norton thrived. He was treated with respect. Norton's "edicts" were obeyed by his "subjects," either to humor the madman or out of recognition of his moral (if not legal) force. He was allowed to circulate his own currency, which passed as real money in San Francisco, where a conventional anarchist doing so would have been locked up. In a surreal sense, Norton spent the latter half of his life reigning as an actual emperor — an emperor by consensus. It was a consensus of love, not of force. The current government of the United States rules by a sort of consensus, and relies in part upon patriotism (itself an expression of love), but also relies heavily upon fear: the fear of taxes, fines, the policeman, and jail.

Contrast Norton's career with those of his rival claimants: James Buchanan and later Abraham Lincoln and Jefferson Davis. It's fair to say that none of those worthies commanded respect or consent, as was proven when they drove the United States into a bloody civil war, even refusing Joshua Norton's efforts to mediate the dispute. We believe that America has strayed from the Emperor's wisdom. Where moderates and mollycoddlers call for redressing corruption with a new constitutional convention, we choose to commemorate this truest of American visionaries on the anniversary of his most significant edict, with a call to abolish Congress once more and a round-up of blog posts on law and politics in a world that has betrayed Emperor Norton's legacy of good government.

Universal Suffrage Is Abused.

Scholars record that shortly after Norton's ascension to the throne of the United States, the imperial capital of San Francisco was wracked by spasms of violence against Chinese immigrants. A lynch mob formed for the purpose of attacking the Chinatown portion of the city. Emperor Norton did not share his subjects' prejudices. But where another, lesser ruler in Norton's day might have ignored the problem, or responded to violence with violence by sending in troops, Norton, at considerable personal risk, employed the weapon of a true sovereign: Love. Norton confronted the mob as it was about to enter Chinatown, and stood before it, reciting the Lord's Prayer. Awed and shamed by His Imperial Majesty's courage and wisdom, the mob dispersed, with not a shot fired or a fist raised in anger.

By uttering the Lord's Prayer in the exercise of his official duties, the Emperor necessarily mixed church and state. Today not everyone is comfortable with that mixture. Take, for example, last week's oral arguments before the Supreme Court in Salazar v. Buono, concerning a memorial cross on a patch of formerly federal land in a national park. The Transplanted Lawyer at Not a Potted Plant had thoughts about oral argument in the case, as did Scott Greenfield at Simple Justice — who contrasted the issues raised in that case with the question of whether it is a violation of a defendant's rights when a prosecutor wears a small cross necklace during a trial. Marc Randazza calls for a little perspective. And John Kindley had a rather blunt, but honest, appraisal of Justice Scalia's performance in particular.

Norton calmed the mob by example, not by threat. Contrast his example with that of New York's Metropolitan Transportation Authority, which issued a takedown notice to a t-shirt producer who used subway symbols to lampoon the MTA's poor service. Obvious parody of trademarks is protected as "fair use" and under the First Amendment, unless one is a person of average means looking at the oncoming lights of a lawsuit from a government and its army of lawyers. Of course, the sort of government whose Fish & Wildlife Service has its own SWAT team may need plenty of lawyers to go along with all those cops and guns.

Fraud And Corruption Prevent A Fair And Proper Expression Of The Public Voice.

The people of San Francisco, Norton's imperial capital, loved their Emperor and gave him the treatment that, as their sovereign, he deserved. Norton ate in restaurants as the owners' guest. Norton had free use of the city's livery stables and rails for transportation of the imperial train. San Francisco merchants competed for his imperial favor and approval. Citizens of the grateful city provided a yearly allowance for their Emperor's regalia. Joshua Norton even issued imperial bonds, collected taxes from the people, and printed his own money (payable "by the agents of our Private Estate, in case the Government of Norton the First does not hold firm"), with the assistance of San Francisco printers. Unlike any other government which can be named, America's first Emperor never suffered a rebellion in his own territory.

Contrast Emperor Norton's example with those of governments prevailing in the United States and around the world today, where justice isn't just blind but gagged, or issues from the barrel of a slot machine, or simply follows the money.

Justice Antonin Scalia of the United States Supreme Court questions whether lawyers, of which the United States has no shortage, provide more social utility than scientists, engineers, and inventors. We would respond, as might Emperor Norton, that a nation which has a superabundance of laws requires a superabundance of lawyers. All the more reason to abolish Congress, the leading source of laws. We would also observe that Justice Scalia, evidently no mathematical genius, earned his baccalaureate in history and went on to teach law. If you're either part of the solution or part of the problem, you Justice Scalia, may be part of the problem.

Another part of the problem may be that people involved with the law claim to be what they are not. Norton I indisputably has the best historical claim to Imperium over the United States. Americans respected his title. On the other hand, others grant themselves dubious titles, such as "trial lawyer," which they haven't earned. Scott Greenfield is skeptical of some who wear that title. CrimLaw's response is pragmatic, and Robert Ambrogi urges lawyers to call a spade a spade. In law as in government, deeds are sometimes more important than words.

Emperor Norton lived in a time when liberties often required vindication at gunpoint. We, by contrast, are privileged to live in a time when liberties can often (though not always) be secured through the rule of law. The Foundation for Individual Rights in Education, or FIRE, has a blog that documents its increasingly impressive string of courtroom successes defending the freedoms of speech, faith, and conscience on America's college campuses, including a recent victory in Los Angeles over a vague and overbroad speech code. FIRE also achieves results through persuading officials to do the right thing, which would have gladdened the Emperor's peace-loving heart.

While talk is better than war, civil litigation is not necessarily fair, and not necessarily free of coercion — it's simply a different type of coercion than one finds at the point of a gun. When he offered to mediate between the states, Emperor Norton observed that merely fighting the tragic struggle between North and South was horrifically costly, even to the victor. Litigation is no different. That's why litigants — and even lawyers as litigants — are sometimes inclined to cave in the face of meritless claims. Too often meritless claims are used to censor speech, as in the recent case of Adaptive Marketing's crusade to expose the identity of a critical anonymous blogger, as discussed at Public Citizen's blog Consumer Law & Policy. In another context, Brian Tannenbaum discusses the trend in the context of clients demanding fee refunds from attorneys. Is the answer a reconsideration of the "American rule" in favor of a loser-pays model? We've made small steps in that direction by, for instance, adopting anti-SLAPP statutes to protect freedom of expression — but alas, unlike Emperor Norton's subjects, not all anti-SLAPP statutes are created equal. And finally, however well-crafted the rules, let us remember that civil litigation — even litigation over mice and bears of little brain, and similar nonsensical matters – can consume decades and millions of dollars.

Open Violation Of The Laws Are Constantly Occurring.

In 1862, Norton I assumed the office of Protector of Mexico, and began to rule that nation with the same loving hand enjoyed by the people of the United States. Sadly, the people of that unhappy country later rejected their sovereign's claims, electing a pretender emperor by the name of Maximilian. Rather than reconquer his lawful domain in Mexico by force, Norton abdicated, observing "It is impossible to protect such an unsettled nation." Nonetheless, Norton's words and deeds resonate abroad to this day, as evidenced by the words of bloggers around the world.

It is unlikely that the Emperor would call our friends to the north "unsettled" — unless, of course, he happened to review the extent to which Canada's leaders have failed to protect freedom of expression. Here at Popehat we've blogged frequently about Canada's appalling Human Rights Councils, which permit bureaucratic persecution of disfavored speech ranging from loathsome to petty. This week Canadian blogger Ezra Levant, an implacable foe of Canada's Human Rights Council censorship regime, testified before Parliament alongside Mark Steyn, and blogged about the experience. And across the pond, Charon QC is troubled by recent technological innovations in the British criminal justice system, while Geeklawyer notes one of the most ridiculous examples of government panicmongering we've seen this year. Across a larger pond, China Law Blog wonders whether American lawyers and clients are working under a misunderstanding: just because the vice president of marketing speaks Chinese, that doesn't make him an expert in Chinese law.

Mobs, Parties, Factions And Undue Influence Of Political Sects.

Norton's reign as Emperor of the United States was marred by the outbreak of conflict within his domain beginning in 1861, when Northern and Southern states elected puppet Presidents named Lincoln and Davis, whose careers are otherwise obscure. Unfortunately for America, each of these interlopers refused their Emperor's offer of mediation and settlement of their obscure dispute, continuing their illegal war and bringing only tragedy. Enlightened Americans today, like Norton I, recognize that civil law is the bedrock of a civil society.

Emperor Norton's legitimacy (and the faith of the people of San Francisco therein) was supported by his unshakable belief that his Imperium was legitimate. Improbable propositions require improbable levels of self-confidence. We've seen such inexorable faith this week in the saga of the quixotic Orly Taitz, who not only believes that Barack Obama was born in Kenya, but believes that she has legally cognizable proof of it. As Doug Mataconis of Below the Beltway documents, Attorney Taitz argued that the presence of a man who resembles Eric Holder in a Starbucks near a courthouse means that the Obama Administration is improperly influencing the judiciary. O rly? Though clearly as eccentric as Norton I, Ms. Taitz perhaps does not enjoy the level of high regard earned by the Emperor.

Whether Joshua Norton was a madman, a prophet, or the only legitimate sovereign in American history, the authority he commanded grew from his behavior, which gave rise to moral authority. One man's insanity is another man's wisdom. Norton embodied Lao Tzu's model for a Chinese emperor: When great rulers achieve their purpose, their subjects claim the achievement as their own. We're certain that Emperor Norton would not have approved of the way Police Chief Edward Locke exercises sovereignty over Bella Villa Missouri, and we're pretty sure Norton would have abolished the Eighth Circuit Court of Appeals for giving Locke a pass under 42 U.S.C. 1983.

Of course litigation, while preferable to gunplay, isn't the answer to every wrong. We think Norton would have appreciated Santa Clara law professor Eric Goldman's non-litigious approach to dealing with a legal spammer: naming and shaming. We're happy to add our page rank to his effort.

Emperor Norton's message was one of engagement, promoting harmony. But are the goals of engagement and harmony consistent with the American ideal of individual liberty? That question was in the air last week as the Obama Administration worked hand in hand with Egypt to break a deadlock in the U.N. Human Rights Council over a controversial resolution about freedom of religion and freedom of expression. Similar resolutions have been kicking around the U.N. for a long time to the dismay of American civil libertarians, who view the concept of "defamation of religion" with great suspicion. Eugene Volokh has some concerns about the revised resolution brokered by the United Sates and Egypt, and Kenneth Anderson questions whether "engaging" on civil liberties necessarily compromises them. Meanwhile Jonathan Turley is appalled by the bargain and what it foreshadows for international attitudes towards free speech, and Index on Censorship is suspicious.

The Citizen Has Not That Protection Of Person And Property Which He Is Entitled.

Joshua Norton made the rounds of his capital, San Francisco, hearing the petitions of his subjects and dispensing wisdom and justice. Norton also made a number of decrees for the betterment of the city, including an order that the citizens should build a bridge spanning San Francisco Bay, to allow easier travel to the hinterlands that today constitute Oakland. Sadly Norton's command was beyond the engineering capabilities of the day, but when the bridge was completed, a grateful populace honored Norton with this plaque:

Pause traveler and be grateful to Norton I. Emperor of the United States, Protector of Mexico, 1859-1880. Whose prophetic wisdom conceived and decreed the bridging of San Francisco Bay.

Where Norton acted rarely and without haste, today government meddles in seemingly everything. The blawgosphere was confounded this week by news that the Federal Trade Commission plans, beginning December 1, to extend its regulatory hand over blogs and private websites, a regime that frankly seems unneccesary and may be unconstitutional. As Ann Althouse observes, the FTC's regulations will impose more onerous requirements on bloggers than on newspapers and journalists. Walter Olson, who reviews books from time to time, may just abandon or cut back the practice if it means he has to maintain records and receipts for fear of a fine from the FTC. And Colin Samuels has devised a clever disclaimer that mitigates liability while telling the FTC exactly what he thinks of its regulations.

The FTC isn't the only government agency that treads on the First Amendment through regulation. Beck and Herrmann at Drug and Device Law describe the Kafkaesque labyrinth that drug companies must navigate to avoid running afoul of the Food and Drug Administration's regulation of "off-label" pharmaceutical advertising. Do the FDA's regulations infringe on freedom of speech? A recent lawsuit by Allergan may have implications for commercial speech far beyond the medical industry.

Though Norton could foresee the engineering wonder that would become the Golden Gate Bridge, there were many technological marvels of which he could only dream. Norton could perhaps imagine demanding that his subjects produce papers in the real world, but it is doubtful he could comprehend subpoenaing materials from the ether inhabited by difference engines, or grasp the concept of protecting "metadata" from improvident disclosure. Perhaps Norton would not want to imagine the technologically-inspired decision by the University of North Carolina Law School's moot court bench (of which one of your authors is an alumnus) to hold an appellate argument in the virtual world of Second Life. Above The Law covered the mock argument, with an emphasis on mockery. Of course, making an "oral" argument with a keyboard is far from the only legal weirdness the internet makes possible. On the other hand we believe Norton, who ruled through trust, would have approved this post from Legally Unbound on trust and the internet.

It is recorded that in the latter years of his reign Norton offered his hand in marriage to Victoria I, Queen of England and Empress of India. In this Emperor Norton received the full support of his subjects, but history records that Victoria remained a dowager widow, mourning the loss of her consort Prince Albert. Did Norton's cable reach London? Was his proposal thwarted by jealous suitors within Her Majesty's government?

Unfortunately, the records do not tell us, but we know that Joshua Norton was a firm supporter of the institutions of marriage and family. One wonders what Norton would have made of Madireddy v. Madireddy, in which a New York court ruled it could not grant a divorce because it could not determine whether the parties were validly married under Hindu law. Answering another, seemingly insoluble question, Taxgirl attempts to answer the question of why she became a lawyer, and whether a law school education is worth the trouble now, while Law and Motherhood reflects on the problem each generation of lawyers must solve, that of maintaining a practice and being a good parent — a trail already blazed by others.

We Do Hereby Abolish Congress, And It Is Therefore Abolished, To Remedy The Evil Complained Of.

Despite Norton's decree, somehow Congress has managed to reconstitute itself, in clear violation of imperial mandate. This usurper Congress, which is richly deserving of a second abolition, seems hell-bent on imposing its will on the citizen, without regard to the laws or the Constitution. Mark Draughn at Windypundit attempts a taxonomy of what he calls "bogus pseudo-crimes," one expression of Congressional overreaching. But even in the absence of an emperor to curb its abuses, good people can sometimes thwart Congress' worst instincts, as when California Representative Linda Sanchez's Megan Meier Cyberbullying Prevention Act was turned back. In the same week,the House passed the Matthew Shepard and James Byrd, Jr. Hate Crime Prevention Act, as covered by Religion Clause. Whether the act is necessary is up for debate. It seems merely to enhance penalties for existing crimes, rather than creating new crimes. After all, there isn't always an Emperor around when the lynch mobs circle Chinatown.

Lawyers and the courts can also stem legislative abuse. Douglas Berman writes on the Supreme Court's pending consideration of whether a life sentence without parole, for a minor, violates the Eighth Amendment. Grits For Breakfast tells the story of a man officials required to register as a sex offender, even though he'd never been convicted of a crime. A federal jury ruling on the man's suit against the government was not amused. At Cyb3rcrim3, Susan Brenner uses the example of the Facebook "should Obama be killed" poll to discuss cases in which lawyers and courts have prevented the government from using laws against threats to shut down legitimate dissent. Unfortunately lawmakers sometimes strike back, as Walter Reaves observes with a post on Texas Governor Rick Perry's decision to disband the Texas Forensic Commission before it could consider evidence in the highly disturbing Todd Willingham case.

Norton was persuaded to abolish Congress not only because of corruption, but because legislators had exceeded their power. Edward Fallone addresses similar ideas in a modern context, exploring the negative spaces in the Constitution. It's a serious discussion of issues that some dismiss with the sophomoric "Tenther" smear. It is such abuses, things like overbroad laws which encourage needless litigation, or overcriminalization to the point where virtually everything not forbidden is compulsory, that persuade us today that Congress must be abolished.

We'd like to thank the Editor of Blawg Review for giving us the opportunity to enlighten readers about Emperor Norton and his place in American history. We'd also like to thank Colin Samuels for advice and suggestions. Mr. Samuels' fine blawg, Infamy or Praise, joins our blogroll today. Blawg Review has information about next week's host, and instructions how to get your blawg posts reviewed in upcoming issues.

A post by Walter Olson, who along with Ron Coleman has been ahead of the field on the Federal Trade Commission's decision to regulate blogs, prompted this thought.

What if I decide to provide a simple link to a bigger weblog, even if it's one I dislike, in the hope of generating attention from the blogger and therefore gain traffic to my own site?  Is that illegal under the FTC's new guidelines?

Sounds implausible, doesn't it?  But is it?  Let's look at the text. Go to page 60, and look at Section 255.1 of the regulations.

For purposes of this part, an endorsement means any advertising message (including verbal statements, demonstrations, or depictions of the name, signature, likeness or other identifying personal characteristics of an individual or the name or seal of an organization) that consumers are likely to believe reflects the opinions, beliefs, findings, or experiences of a party other than the sponsoring advertiser, even if the views expressed by that party are identical to those of the sponsoring advertiser. The party whose opinions, beliefs, findings, or experience the message appears to reflect will be called the endorser and may be an individual, group, or institution.

An "advertising message" is not defined in the regulations, so we'll take it broadly, as the FTC might.  It's a message stating that you should use, buy, or consume a product.  An "advertising message" applies only to endorsements of "products" which are defined as:

any product, service, company or industry.

For instance, the two largest blogging outfits of which I know are Pajamas Media and the Huffington Post.  Each agglomerates smaller blogs of varying size and significance, and each is a "company," meaning a corporation.  So if I "endorse" a Pajamas Media blog, or a Huffington Post blog, or for that matter Andrew Sullivan or Megan McArdle or The Daily Kos (I'll bet Moulitsas is incorporated), on this blog, I'm bringing myself under FTC jurisdiction.  Moreover, all of these blogs are commercial enterprises.  They do indeed sell a product: eyeballs and advertising dollars.

We're blogging for free, but McArdle isn't.  She gets paid because her opinions bring eyeballs, and hopefully subscriptions and advertising revenue, to The Atlantic Monthly magazine.  In both its web and paper formats.

Now:

Endorsements must reflect the honest opinions, findings, beliefs, or experience of the endorser. Furthermore, an endorsement may not convey any express or implied representation that would be deceptive if made directly by the advertiser.

Let's say I "endorse" a big blogger dishonestly, and let's say I'm doing it in the hope of getting a return link as a sycophant parasite, and therefore drawing traffic to my own tiny blog, which will result in eyeballs viewing my (non-existent but this is for the sake of argument) Google Adsense or Amazon sidebar, which will send money my way.

For instance, to pick a big-league blogger I actually like a lot, let's say I hate Megan McArdle, but post something drawn in from her site, with the hope she'll notice and point it out with a return link:

Hat tip: The ever-invaluable Megan McArdle, whose blog I think you should read every day.

When I'm actually a hardcore libertarian who really thinks that McArdle sold out her principles when she endorsed Barack Obama, and hasn't been the same since she sold out her blog to join the East Coast media elite at the Atlantic.  In fact, I despise Megan McArdle as an unprincipled sellout and scoundrel.

But I'm endorsing her, and the company she works for, dishonestly.  And let's say she reads her traffic logs, and she's flattered because I suckered her.  She return links, stating:

Gosh, that Patrick at Popehat wrote a really great post about whatever it was expanding on my post about that other thing.  You should read it. Click here.

I get a flood of traffic from McArdle's readers, some of whom click on my Google Adsense ads, and I make money.

Now:

Advertisers are subject to liability for false or unsubstantiated statements made through endorsements, or for failing to disclose material connections between themselves and their endorsers [see § 255.5]. Endorsers also may be liable for statements made in the course of their endorsements.

McArdle, or more pertinently The Atlantic, in this sense, is an "advertiser."  She's sent me valuable consideration, eyeballs and ad revenue, in return for my dishonest, deceitful of endorsement her crummy blog, which I don't really read or enjoy.  The Atlantic is therefore subject to a fine from the FTC, as it is an advertiser and has provided valuable consideration for my dishonest endorsement.  Because I linked to something one of its bloggers wrote.

Does that sound implausible?  Yes it does.  But is it based an honest and plausible reading of the Federal Trade Commission's regulations?  Yes it is.  "Advertising" is not defined by 15 U.S.C. 44, the definitions portion of the Federal Trade Commission Act, so we go with its dictionary definition.  Here's one:

The activity of attracting public attention to a product or business, as by paid announcements in the print, broadcast, or electronic media.

If I "endorse" (praise) McArdle / The Atlantic dishonestly, and they return the favor by sending valuable traffic my way (a form of pay for many blogs), The Atlantic and I have run afoul of the Federal Trade Commission Act.

Now, does this sound ridiculous?  Of course it does.  Do I have a First Amendment right to say that Megan McArdle's blog is great even if I don't think it is?  Yes I do.  But could the FTC sue me for dishonestly praising and linking a commercial blogger?  Wouldn't that be overbroad, and violative of the First Amendment?

Unlikely but it could under the regulations as drafted.

What do federal courts do about regulations that are overbroad and violative of the First Amendment?  They strike them down as unconstitutional, which is precisely what's going to happen to the FTC's new advertising guidelines.

At least, I hope they will.

The Supreme Court held oral argument on yet another case having to do with religious symbols on public land. I hate this line of cases so much, mostly because I hold both of these thoughts:

1. Religious displays on public property are clearly unconstitutional.
2. I do not give a shit if the town council sticks a Nativity scene in the middle of the Winter Carnival.

The former probably owes something to being an atheist. The latter, probably, because strident, inevitably smug, atheists annoy me almost as much as proselytizing for faith does. The whole thing leads me to sigh whenever another one of these cases comes up. It must be exhausting to be offended all the time by your neighbors being themselves in public and it doesn't get less exhausting to spend all that time fanning one's self with the Constitution.

On the other hand, the only thing more exhausting in all of these cases is the disingenuous contortions that the supporters of these public displays have to make in order to justify them under the First Amendment. Santa isn't really a religious figure; the Christmas Tree is a secular symbol; Christmas itself is a "seasonal" reference. In all of this, Scalia is rare among the supporters of these public displays in that he finds these arguments preposterous – as much an insult to faith as it is to the First Amendment. On the other hand, Scalia doesn't think that religious displays on public property raise any constitutional question at all, so you have to take the good with the bad. Or, at least, you used to. Now it's all bad.

During Wednesday's oral argument on the latest of these cases, Salazar v. Buono, Scalia didn't see what the big deal was about having an 8-foot tall cross as a World War I memorial on the Mojave National Preserve, as reported in Slate:

Justice Antonin Scalia: "The cross doesn't honor non-Christians who fought in the war?"

Counsel for Respondent, Peter Eliasberg: "A cross is the predominant symbol of Christianity, and it signifies that Jesus is the son of God and died to redeem mankind for our sins."

AS: "It's erected as a war memorial! I assume it is erected in honor of all of the war dead. The cross is the most common symbol of … of … of the resting place of the dead."

PE: "The cross is the most common symbol of the resting place of Christians. I have been in Jewish cemeteries. There is never a cross on a tombstone of a Jew."

AS: "I don't think you can leap from that to the conclusion that the only war dead the cross honors are the Christian war dead. I think that's an outrageous conclusion!"

So now you can't even count on Scalia to admit that religious symbols are, in fact, religious. Scalia's stance is the kind of position that could only be taken by a man who ascribes to the dominant faith in his society and still manages to feel oppressed. That he could assert with a straight face that the ubiquity of crosses on gravestones, in a country where Christians are ubiquitous, has become a universal symbol beggars belief. And he didn't just say it with a straight face. I omitted Slate's descriptors of Scalia's tone so the colloquy would read neutrally, but they were "stunned" and "thundered." He was not only serious that a Jew (or Muslim or atheist) should feel honored by a cross, he was offended that they wouldn't be.

Where this case will end up is anyone's guess right now because, as usual, the specific facts of this case involve a delicate dance around the Constitution. After a District Court ruled that the display was a violation of the Establishment Clause and issued an injunction, Congress hastily transferred a tiny parcel of land – more or less the ground underneath the cross – to a local VFW. Nevermind that this 'private land' still sits smack in the middle of a national park. The 9th Circuit, of course, minded this little legerdemain and so it kept the injunction in effect. There is a separate fight over standing, a third fight over which injunction the Court is supposed to be considering… All in all it is a bit of a clusterfuck, as happens a handful of times each term.

Even if they never reach the Establishment Clause question on this case, the oral argument will stand as a more prominent monument to Justice Scalia's blinders more prominently than the Mojave Cross ever stood for anything.

(AP, Oslo, Orgrimmar) Thrall was awarded the 2009 Nobel Peace Prize on Friday for his work to improve international diplomacy and rid the world of the Undead Scourge — a stunning decision to celebrate a figure virtually unknown in the world of Azeroth before he launched his campaign to found a new homeland for the Orcish Horde on the barren plains of Kalimdor nearly five years ago. The surprise choice of Thrall, the current Warchief of the Orcish Horde, as this year's Nobel Peace Prize winner has drawn both praise and criticism.

(Warchief Thrall, pictured, announcing his acceptance of the award from his throne in the Valley of Honor)

In honoring Thrall, age undetermined, the Norwegian Nobel Committee echoed a global embrace of the Horde's Warchief that has seen his popularity overseas often exceed his support among Trolls, Tauren, and even his fellow Orcs. Though Thrall's name surfaced early among contenders, the announcement astonished observers — drawing gasps from the audience in Oslo — in part because Thrall is still leading the Horde, in sometimes bloody contention with the Human Alliance of Azeroth, in a war upon the Undead Scourge of the Lich King Arthas on the icy polar continent of Northrend.

The committee praised Warchief Thrall for his "extraordinary efforts to strengthen the bonds of diplomacy and cooperation between Orcs, Trolls, and the rebel Forsaken Undead, who broke free of the Lich King's deadly embrace under the leadership of the Banshee Queen Sylvanas Windrunner," and singled out for special recognition Thrall's call for a Horde free of the demonic influence of the Burning Legion and the absolute destruction of Icecrown Citadel and the Scourge, the subject of a major speech given before the assembled warriors of the Horde April 5 in the mighty fortress city of Orgrimmar.

Heralding Thrall as a transformative figure in Orcish and Horde diplomacy, the committee said: "Only very rarely has a person, much less an Orc, to the same extent as Thrall battled horrors from the infernal regions and given people hope for a better future. His diplomacy is founded in the concept that those who are to lead the Horde must do it with an iron claw, ruthlessly destroying the triple menace of Ghouls, Undead Abominations, and vile Lich King cultists."

United Nations Secretary-General Ban Ki-moon hailed the news.  He said Warchief Thrall "embodies the new spirit of dialogue and engagement" on Azeroth's biggest problems, including the threat of dragon invasion, and sorcerous disarmament.

The foundation of former South African president and previous Nobel winner Nelson Mandela also welcomed the choice, stating it hopes the award will strengthen Warchief Thrall's commitment to "promoting white magic and the eradication of the the undead menace."

Japanese Prime Minister Yukio Hatoyama congratulated the Warchief, as did German Chancellor Angela Merkel and French President Nicolas Sarkozy.  Thrall's recognition was also toasted by Witchdoctor Sen'jin, leader of the vicious Trolls of the Darkspear Tribe, and Elder Shaman Cairne Bloodhoof of the mighty Tauren peoples of Mulgore.

Retired politicians also commended Thrall, including Jimmy Carter, Al Gore, and Garrosh Hellscream, leader of the Warsong Offensive and son of the former Warchief Grom Hellscream.  "I've had my share of disagrements with Thrall on matters great and small, including his tolerance of the pathetic Alliance, but I must say this award is well-deserved," Hellscream said from his base in the Dragonspine Mountains of Northrend.

But others say the decision is premature for a Warchief who five years into his reign still struggles against the terrors of Azeroth, including the vile dragon queen Onyxia, the elder god Yogg Saron, and has no definitive progress in sight on a range of foreign policy fronts including the Horde's ongoing skirmishes against the Human-led Alliance of Gnomes, Dwarves, Night Elves, and the mysterious alien Draenei.

From his castle in the Human City of Stormwind, King Varian Wynn of the Stormwind dynasty, also a Nobel laureate, said it is too early to award Warchief Thrall with the peace prize, saying that the Horde still gives safe harbor to monstrous Warlocks such as Neeru Fireblade, who plunged the world into cataclysm years ago under the leadership of the Orcish Necromancer Nerzhul.

Michael Steele, chairman of the Republican Party, stated on Fox News Channel's morning television show Fox and Friends that the Warchief "was selected as the Nobel committee's last slap at George W. Bush," while talk radio host Sean Hannity called the selection "a vote for death, demonology, and degeneracy in children around America and Azeroth."

From his towering citadel in the far off reaches of Northrend, the Lich King himself condemned Warchief Thrall's selection, saying he has escalated the conflict there.  "We will crush this puny orcling in his turn, and bring all Azeroth under the will of the Scourge!" said a spokesman for the Lich King.

Many say it is not what Thrall has done, but what he may do that is important.

Nobel peace prize winner Archbishop Desmond Tutu of South Africa said the award "speaks to the promise of Warchief Thrall's message of hope for an Azeroth free of the tyranny of the undead."

Israeli Defense Minister Ehud Barak expressed his hope the Warchief's award would inspire the youth of the Middle East to set aside violence, much as the Horde and Alliance have done in the cautious detente that has prevailed since the Scourge invaded the Eastern Kingdoms in October 2008, unleashing a plague designed to eradicate all life.

The head of the United Nations Necromancy Agency, Stuart Reeves, said Warchief Thrall has rekindled hope for an Azeroth at peace with itself, and a final bloody reckoning with the Lich King for the millions of lives he has stolen.

Warchief Thrall announced that he was humbled and surprised by his selection, noting that he did not accept the award as a personal honor, but in the Warchief's words, "For the Horde!" as recognition of the valor of all of the mighty legions of the Horde, whether Orc, Troll, Tauren, or Forsaken Undead.  The Warchief will receive his award at a ceremony in Oslo before the Norwegian parliament in December.

In a rhetorical masterpiece sure to sway many voters, Robert Lowry, a candidate for a Florida Congressional seat, shot at a target marked with the initials of his opponent in the race, Democratic Congresswoman Debbie Wasserman Schultz. Mr. Lowry first called the shooting a joke, but later (probably after talking with many, many consultants) admitted that it was a mistake. You think? Sheesh.

Among other heart warming tidbits from this story:

• Apparently the Southeast Broward Republican Party holds their weekly meetings at a shooting range. Isn't that sort of like the Democrats holding their convention in the Castro with the Sisters of Perpetual Indulgence presiding? No one thinks this might be a bad idea?
• Charmingly, they use targets equipped with traditional Arab scarves, when they aren't shooting at Congresswomen's initials that is.

It's nice to know that in this topsy-turvy world we live in, where Chaos is all around us, Florida remains the soul of consistency.

I have fond memories of childhood Halloweens. For grown-ups, Halloweens are exhausting and difficult to fit into a stress-filed schedule. For kids, Halloweens are magic. Candy! Pageantry! Make-believe! Staying up late! Running around in the dark in the delicious state between being scared and pretending to be scared! Camaraderie! Freedom!

Naturally all of this must be reined in. You know — for the children.

Hysteria over Halloween is nothing new. You've got the people who think it actually promotes witchcraft and Satanism. You've got the people who believe the vastly overblown urban legends of food tampering. And then you've got the people who think that kids just ought not be going door to door yelling "Trick or Treat!," for the good of the kids and for the good of the treat-givers and possibly for the good of the doors.

The Supervisors of Dunkard Township — that's Dunkard, not Drunkard, this decision notwithstanding — are among that group. They canceled Halloween.

A small community in Greene County is embroiled in controversy after local officials decided to ban trick-or-treating this year.

Instead, Bobtown will hold a four-hour Halloween party.

Supervisors in Dunkard Township say they are taking the steps for safety reasons.

Leave aside for a moment the literal nannyism — the notion that kids ought to be prohibited from trick-or-treating for their own safety, and instead confined to a party, perhaps held inside a giant padded room. I'm more concerned about the nanny-statism. From where, exactly, do Dunkard Township supervisors derive the power to ban families from trick-or-treating on public streets, and to ban households from giving out candy? Given the Supreme Court's pattern of protecting door-to-door solicitation under the First Amendment, I'm skeptical that a trick-or-treating ban is even constitutional.

Dunkard Township leaders — like most nanny-staters in their position — are mystified about the opposition to their plan.

Assistant Dunkard Fire Chief David Pritchard, running unopposed for supervisor in the election, said he was surprised by all the negative reaction to the decision to ban trick-or-treating.

He says there's been a lot of break-ins lately and that older people in Bobtown were scared.

According to Pritchard, the township was trying to keep everyone safe.

Were the break-ins by people in G.I. Joe costumes? Have they been ringing the doorbell? Halloween results in tons of people being on the street, usually monitored by local police. How does preventing that make break-ins less likely?

Ah, but those questions will never be answered. Remember — doing it for the chiiiiillldruuuun means never having to come up with a logical reason for your actions.

I kind of like the out of the box awards the Nobels have given in the past (especially in Literature, where they seem to seek the obscure) but the Peace Prize is clearly the centerpiece award, and I think some care and thought needs to be given to it's recipients. Obama may some day be worthy of the award, but as of today he is merely a Patriot Act renewing, DOMA defending, Signing Statement supporting shade of a progressive. In fact, I would like to suggest that no one currently involved in military activity be able to win the Peace Prize.

I submit that the prize be awarded each year in perpituity to the nation of Bhutan. In 1972 their king uttered the simple phrase "Gross National Happiness is more important than Gross Domestic Product." Since then, Bhutan has systematically and doggedly worked towards increasing the happiness of it's people. This is not some hippy-dippy rainbows & unicorns idea. It is deeply Bhuddist and something the entire government works towards.

Think about that, a government that is actually concerned about the happiness of it's people, and is serious enough about it to put the resources of the government into better facilitating that happiness (heh, sorry libertarians..) It's fascinating to me to see a country take the same principles and statistical management we put into capitalism and focus it on something "touchy-feely." For that effort alone Bhutan deserves the award.