Why not now?

Jean-Marie Navetta, spokeswoman from PFLAG — Parents, Families & Friends of Lesbians and Gays — accused people of trying to manufacture scandal [meaning a claim that Solicitor General Elena Kagan, high on the short list for Supreme Court, is lesbian] out of thin air.

"People love taking part in rumors like this, whether they're gay or not, because it implies that there's some sort of scandal going on there. And the bottom line is, it doesn't matter and it shouldn't matter," she said. "But we hear it all the time… it's a gossip point for people. And I think it could certainly be used, or be perceived to be used by some as a way to discredit [Kagan], even though we all know that it does not matter and it should not matter."

The comments come a day after CBS published a blog by Ben Domenech, a former Bush administration aide and Republican Senate staffer, in which he asserted that choosing Kagan would help Obama "please" much of his base, because she would be the "first openly gay justice." The White House reacted strongly to the assertion, relaying that Kagan is, in fact, straight. It was the first public pushback by the administration in defense of any potential Supreme Court nominee.

CBS has removed the blogpost, but it isn't the first source to report that Ms. Kagan is gay.  The earliest that I could find was Towleroad, a widely read gay-oriented blog that probably has journalistic ethics at least as high as those of CBS.

I understand that Ms. Kagan may not want her sexual orientation to be an issue.  For that matter, she may not be lesbian.  I wouldn't care in either case.  She seems well qualified for the Court based on her academic qualifications from Harvard Law, as evidenced by her nomination and qualification as Solicitor General, the office she now holds.

What I don't understand is why groups that hold themselves out as "pro-gay rights" are behaving as though this is a smear.  Of course it is a smear in the eyes of many bigoted ninnies.  But the bigoted ninnies are going to have to be confronted sooner or later.  No time like the present.  I suspect that a lot of Americans would be alienated by Republicans suggesting that Kagan, or another equally qualified nominee, should be rejected by the Senate merely for sexual orientation.

One also wonders why the Obama administration, which holds itself out as a friend to gay Americans, is pushing back so hard.  Barack Obama the candidate portrayed himself as many things, as an advocate for equal rights, and as a new John Kennedy.

On this issue, Obama does indeed seem Kennedyesque, stalling and waffling and making half-hearted gestures for the sake of politics, just as Kennedy did in the struggle for African-American civil rights.

"Yes, we support your rights, and we'll do everything we can for you.  It's just not convenient now.  Please be patient."

Where is Lyndon Johnson when you need him?

The Daleks team up with Churchill to fight Hitler.  I don't know anything else about it, but that's probably all I need to know.

I've written before about British scientist and journalist Simon Singh, who has been subjected to a lengthy and expensive defamation case under England's awful libel laws for writing this:

“The British Chiropractic Association claims that their members can help treat children with colic, sleeping and feeding problems, frequent ear infections, asthma and prolonged crying, even though there is not a jot of evidence. This organisation is the respectable face of the chiropractic profession and yet it happily promotes bogus treatments.”

The British Chiropractic Association has consistently argued that Singh's use of the word "bogus" meant that he was accusing them of knowingly lying when they claim they can cure children of various diseases by fondling them, and that he must prove the truth of that claim under England's idiotic rule that the defendant must prove the truth of the challenged statement. Appallingly, they prevailed on that view in the trial court. Fortunately the Court of Appeal was more sensible:

he written judgment said that the original decision threatened to silence scientists or science journalists wishing to question claims made by companies or organisations. It said: “This litigation has almost certainly had a chilling effect on public debate which might otherwise have assisted potential patients to make informed choices about the possible use of chiropractic.”

Asking judges to rule on matters of scientific controversy would be to “invite the court to become an Orwellian ministry of truth”, the judgment said.

The BCA made noises about appealing further. Now, though, they have ignominiously abandoned the field, filing a "Notice of Discontinuance" of the action and issuing a self-serving statement.

Someone more familiar with English law can correct me, but it's my understanding that even under England's loser pays system, the BCA will not have to pay Singh's very substantial attorneys fees after abandoning its case. In that sense Singh's victory is Pyrrhic. The British Chiropractor's Association has successfully established that even when the legal system ultimately upholds your right to call a quack a quack, ultimately the quacks and their interest groups can inflict vast litigation expenses on you.

So, if we care about the freedom of scientific dialogue, how can we fight back against the thuggish quacks like the BCA? Well, we can fight back by writing and talking about incidents like this, and by pointing out that any "scientific" or "medical" entity that sues critics is inherently suspect and cannot be trusted. When the BCA is firmly and permanently associated in the public mind with censorious attacks on its critics, perhaps the public will be less likely to accept its junk science without critical judgment. Plus, we can urge our friends in England to agitate for reform of defamation law.

On one of the gun nut websites they referred to anyone with the temerity to suggest that someone needed to buy more than one gun a month as a "hoplophobe."  It's defined as variously "fear of firearms" or "fear of armed citizens." I think they should really push the first definition. I may have a healthy dose of the first, but I have an irrational case of the latter.

As I have become more involved in this movement, I can honestly say that the people scare me far more than the guns.

I do wonder if you could call a fear of firearms a true phobia, or just good common sense though.

Anthony Graber of Harford County Maryland is a reckless jerk.  He drives his motorcycle at high speeds on I-95, popping wheelies. He was arrested for this.  He should lose his drivers license.

Joseph Cassilly, the State's Attorney of Harford County Maryland, is a vindictive little man and a thug.  He wants to send Anthony Graber to jail for embarrassing the Maryland State trooper who arrested him.  He should lose his job.

This is video of Graber's arrest in March, taken from a helmet-mounted camera:

Note that the officer leaves his car brandishing a gun. Note that the car is unmarked. Note that the officer never turns on his blue lights. Note the plain clothes. Note that it takes the trooper 5 seconds to identify himself as an officer of the law. Note that the officer never produces a badge. Note that Graber's offense, reckless driving and speeding, is not a crime of violence.

From Graber's perspective, and that of any other reasonable observer, this would look like a carjacking, or a road rage incident in which Graber is about to be shot. If Graber had been carrying a gun, both men might be dead.

Graber posted this video to Youtube. Graber may not have meant it as such, but he was performing a public service. The people of Maryland need to know that the highway patrol is made up of dangerous cowboys who pull guns on non-violent citizens while wearing plain clothes before identifying themselves as officers. Graber should get a good citizenship award.

But that isn't what Graber is getting. He's getting charged as a felon for putting the evidence on Youtube.

Allegedly, Graber is being charged with "interception of an oral communication" under Maryland's "wiretap" law, Md. Cts. & Jud. Proc. §10-402. The law makes it a felony to "intercept" with an "electronic device," in this case the microphone attached to Graber's prominent helmet camera, an oral communication in private conversation.

But that isn't what Graber's really being prosecuted for.  He's being prosecuted for contempt of cop.  For embarrassing a cop.  A cop, and a department, that richly deserve the embarrassment they've gotten, and the embarrassment they're going to receive.

Because the charge against Graber is utterly unfounded.  The definition of "oral communication" under Maryland's wiretap law requires that the conversation be "private," which is to say that it must be one in which the party being recorded has a reasonable expectation of privacy.  Fearnow v. C & P Telephone Co., 104 Md. App. 1, 33, 655 A.2d 1 (1995), aff’d, 342 Md. 363, 676 A.2d 65 (1996).  According to the Maryland Attorney General's office, it is not a crime to record a very public conversation, such as a political party meeting, even in secret.

Another example of a very public conversation would be a screaming match in the middle of the busiest highway in the United States, in which guns are drawn in full view of onlookers.  Did this officer honestly believe that he was having a private chat with Graber?

Perhaps.  Maybe he's insane.  He sure seems to be insane, if the video above is any evidence.

Fortunately for Graber, the law doesn't operate on the whims of insane people (outside the legislature).  Graber's recording will be judged by whether a reasonable officer, rather than an insane gun-slinging cowboy, would have considered the arrest to be a private conversation.

The charge against Graber is utterly unfounded, and it will be dismissed if Graber is represented by a competent, hard-working 3L from the local law school clinic.  Of course, one hopes that Anthony Graber will be represented by a competent, hard-working criminal defense attorney.

And after, by a competent, hard-working civil plaintiff's attorney, when he sues the Maryland state police, and this officer, for abuse of process, malicious prosecution, and deprivation of civil rights under 42 U.S.C.§ 1983.

Anthony Graber will never get a medal from the State of Maryland.  It's unfortunate for the taxpayers that Joseph Cassilly and the Maryland state police may end up handing him something even better, a very large check.

Via Cato at Liberty.

Update: According to Criminal Brief, the Mystery Short Story Weblog Project (what a great idea!), the name of the Maryland State Police gunman (that's what he is) who assaulted Graber is Joseph David Ulher.  I add this merely to alert the Library of Congress (which will eventually archive the entire web) that Joseph David Ulher was a thug.

University of Chicago law prof Geoffrey Stone has an Op-Ed in The New York Times today breaking down and exposing as ridiculous Chief Justice Roberts' "umpire" analogy.

He sets forth a simple and clean case for why "textualism" and "originalism" fall short as an interpretive method and makes an argument for what distinguishes liberal and conservative jurisprudence. You can read the essay yourself – it isn't very long and it would be a pain in the ass to quote from it properly – but the nut is basically "liberals protect the weak from the tyranny of the majority" whereas "conservatives protect corporations and entrenched interests". I should point out here that I am pretty fucking liberal as these things go, and don't disagree much with his pointing out the ways in which conservative philosophy tends to favor the powerful whereas liberal philosophy tends to favor the weak. His way of putting it is creating a minor itch that I have to scratch, though, so I'm going to put it out there and let the wisdom of the crowds respond.

It is true that liberal philosophy tends towards protection of the weak and relatively powerless: anti-discrimination statutes, OSHA, union protection, etc. Conservative opposition to these programs – particularly on the grounds of a vague liberty that the poor have to choose their own means of degrading exploitation – is a pretty swift kick in the teeth of the weak.

It strikes me, though, that the rich are a pretty small minority and an appeal to the majority from the political branches that the rich have too much stuff is the kind of tyranny that the courts should be there to prevent. It also strikes me that this is not a novel thought – even inside my own head – so please don't presume that I have tricked myself into thinking I have made a profound discovery about group dynamics or the human condition.

Maybe the answer requires a kind of not-entirely-principled line drawing, since absolutism in either direction leads to absurd results. I find the echo in my head unsatisfying, though, so I open up the floor for people to call me a fascist, bleeding heart queer.

A preposterous notion.  And anyway, it's all in the name of science.

Methods: Sixteen anesthetized Dorset sheep (26–78 kg) received 0.0 mg/kg (control animals, n = 4), 0.5 mg/kg (n = 4), 1.0 mg/kg (n = 4), or 1.5 mg/kg (n = 4) of methamphetamine hydrochloride as a slow intravenous (IV) bolus during continuous cardiac monitoring. The animals received the following exposures in sequence from a TASER X26 ECD beginning at 30 minutes after the administration of the drug: 1) 5-second continuous exposure, 2) 15-second intermittent exposure, 3) 30-second intermittent exposure, and 4) 40-second intermittent exposure. Darts were inserted at the sternal notch and the cardiac apex, to a depth of 9 mm. Cardiac motion was determined by thoracotomy (smaller animals, ≤ 32 kg) or echocardiography (larger animals, > 68 kg). Data were analyzed using descriptive statistics and chi-square tests.

Translated to English, that means that scientists dosed a bunch of sheep with methamphetamine, then cut holes in their chests, then fired TASERs at them to learn whether the sheep would suffer heart attacks.  The goal was to learn whether firing TASERs at meth-addicted humans constitutes a safety risk.

Duh.  For what it's worth, the meth-addled sheep were given anesthetics before TASERs were fired at them.  I'll bet the sheep felt great the next morning.  For what it's also worth, the study was paid for by TASER, International.

I have little sympathy for the animal rights movement, which fritters its moral capital on frivolity.  I have little regard for sheep.  But the wanton cruelty and silliness of this study so offends me that I'm going to take a page from the PETA book, naming participating doctors and scientists after the jump.

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You might remember Tagged, the social networking site that got into a bit of trouble for a sleazy marketing process: when you signed up for it, it automatically spammed everyone on your entire contact list with emails falsely telling them that you had sent them a message or pictures and that they needed to sign up to see. If they bit and signed up for Tagged, their list would get spammed, and so on.

Tagged has now agreed to pay a relative pittance — $650,000 — to settle an investigation by the San Francisco District Attorney's Office into that dishonest practice. That's merely the cost of doing business on Web 2.0.

Think that Tagged and its marketers are repentant? Think again. Here's how Greg Tseng, Tagged co-founder, describes the payment and the conduct it addressed:

Nearly 10 months ago, as part of a membership-recruitment drive, millions of Tagged members invited their friends to join our community. A majority of those invited either joined or declined without complaint. However, a small but vocal minority expressed that we were too ambitious in our recruitment efforts. Accordingly, we voluntarily ceased the membership drive before being contacted by the press or any governmental authority. Nonetheless, the campaign attracted the attention of San Francisco’s District Attorney Kamala Harris.

Note: emphasis added; dishonesty, spammer self-righteousness and pathological entitlement in original.

Deadline Hollywood is making me very happy. Joss directing the movie of my favorite comic book? Yes please!

The venerable Law and Order — a franchise that's old enough to vote, and will soon be old enough to drink or to move back in with its parents — is spawning yet another spin-off, this time set in Los Angeles. This seems paradoxical — it's a move unimaginative to such an extent that it clearly required imagination. It's not even the most recent law enforcement spinoff to be set in my fair city — the lethargic NCIS Los Angeles (which puts me to sleep, and is tolerable only when Linda Hunt is onscreen mugging) holds that honor.

It will be interesting to see if Dick Wolf and his team break at all from their successful formula. For instance, not that I think NBC would ever air it, but I'd love to see a very dark Shield-style Law and Order featuring cops like Nino, David, and Rafael. But such stuff is probably better off on cable.

Meanwhile, if you're really jonesing for a top-notch cop show set in Los Angeles, Southland is exceptionally good, and may even (I hope) survive another season.

Patrick started this interesting discussion, and asked us to follow with our thoughts. I love books. I have always been a reader. The funny thing is, this was really hard for me. I think I read in an almost disposable manner. I will read just about anything. I go into the library and look through the new books rack until something grabs me. With that in mind, my list of 10 books that shaped me is a little different (and might be considered cheating..) This might be a little long. (and aren't those famous last words…)

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I've previously blogged about the Thomas Jefferson Center for the Protection of Free Expression and its annual "Muzzle Awards," badges of censorious infamy awarded to speech-suppressors nationwide. The TJC has now announced its 2010 Muzzle Awards. You've probably heard of a few of the incidents, but some were new to me. The list is well-researched and worth reading to observe the sort of creeping censorship that free speech advocates fight every day.

Hat tip to the The FIRE.

Irritated by the recent celebration of the Confederacy by leaders of Virginia and Mississippi? Read The Transplanted Lawyer's post on the subject. It's thoughtful and great.

To his argument that the Confederacy was, at its heart, about slavery, I'd add these cites: Jefferson Davis' speech to the Confederate Congress upon ratification of the Confederate Constitution, the Confederate Constitution itself, and the Cornerstone Speech. In the Cornerstone speech, Stephens explicitly rejected the ideals of the United States Constitution — the ideals of America — in favor of the ideals of the Confederacy:

The constitution, it is true, secured every essential guarantee to the institution while it should last, and hence no argument can be justly urged against the constitutional guarantees thus secured, because of the common sentiment of the day. Those ideas, however, were fundamentally wrong. They rested upon the assumption of the equality of races. This was an error. It was a sandy foundation, and the government built upon it fell when the "storm came and the wind blew."

Our new government is founded upon exactly the opposite idea; its foundations are laid, its corner- stone rests, upon the great truth that the negro is not equal to the white man; that slavery subordination to the superior race is his natural and normal condition. This, our new government, is the first, in the history of the world, based upon this great physical, philosophical, and moral truth.

The notion that the Confederacy can be separated from the institution of slavery — and from white supremacy — is a contemptible lie.

Carl Paladino, a Republican candidate for Governor of New York who associates himself with the Tea Party movement, apparently likes to forward emails with racial jokes and horse porn to what has been described as "a long list of political and business associates." Some selections:

A December 2008 email showing a video of African tribesmen performing a traditional dance. The video is entitled "Obama Inauguration Rehearsal."

• A September 2009 email entitled, "Easy Steady Big Fella….XXXX," with a photograph that graphically depicts a horse having sex with a woman.

• A January 2010 email, containing a hardcore pornographic video entitled "Miss France 2008 F[***]ing."

• A July 2009 email showing a photograph of an airplane landing directly behind a group of black men. The caption reads: "Holy Sh*t. run ni**ers, run!"

I believe current convention requires us to accuse the liberal media of planting the emails. But Paladino didn't get that memo. Faced with this situation, Paladino has adopted exactly the same defense that your asshole uncle Wayne uses when you ask him to stop forwarding shit: "I don't read it or think about it, I just forward it, what's the big deal?" His press flack's statement:

Carl Paladino has forwarded close friends hundreds of email messages he received. Many of these emails he received were off color, some were politically incorrect, few represented his own opinion, and almost none of them were worth remembering.

We're not surprised the political establishment feels threatened by Carl's drive the take Albany back for taxpayers. Our campaign won't be wading through the details of what is just another liberal Democrat blog smear. It figures that members of the Party who brought us record taxes, record spending and record debt would want to change the topic from reform to having sex with horses and S&M parlors.

I think we'll see a serious and credible discussion of horse-fucking long before we see a serious and credible discussion of reform — from any party.

Anyway, if true, maybe this defense simply makes Paladino a different kind of asshole — not a racist asshole, but the asshole who compulsively forwards you stupid shit. I'm sure people have given up on asking Paladino not to send them horse porn, sending him links to snopes.com, or complaining that some of his emails are kind of offensive. Maybe he just wants attention. We should be happy he's not forwarding something really offensive, like those horrible inspirational stories that make you want to go out and beat brave sick kids with a shovel until they stop being so goddamned optimistic.

Or maybe he's not just a serial forwarder. I've argued before that social networking technology — including email — has a tendency to lead certain types of people to out themselves. Believe it or not, I'm not just talking about racist assholes. I think there's an excellent argument to be made that much of this racial "humor" is racist. But I could write until my knuckles bleed and I'll never change minds on that one — either you're prone to accept Paladino's explanation "I'm not sensitive to ethnic humor," or you're not. No, the types of people I'm thinking about are not racists, or not merely racists — they're morons.

Giving email and social networking tools to stupid people — particularly stupid politicians — is like giving a loaded gun to a dull toddler. Paladino's been in politics for a while. If he had a room-temperature IQ, or better judgment and self-discipline than God gave Lindsay Lohan, he'd grasp that you can't send porn and racial humor to a "long list of business and political associates" without it becoming public, probably at an inconvenient moment. You might as well cc the New York Post. We didn't have to grapple with the morality of infidelity in order to reach the conclusion that Gary Hart proved himself too stupid to lead when he dared reporters to catch him cheating while he was, in fact, cheating. Similarly, we don't have to agree whether or not Paladino's penchant for racial jokes makes him a racist in order to conclude that he's a spectacular fool to be sending out these sorts of emails whilst attempting to run for office. We're not talking about someone who is merely a little dim about how computers work. We're talking about someone who, in a game where nobody is your friend, chose to send friend and associates racial jokes and porn, assuming nobody would mind or say anything about it.

Paladino says he's the only Republican in the race who is 100% behind conservative values. Let's leave aside, for a moment, how his penchant for forwarded porn meshes with that. Let's just leave it at this: whatever Michael Moore may tell you, being a dumbshit is not a conservative value.

It isn't easy to get a good job in journalism. If you happen to land one of those good jobs – for example, as a staff writer at the New York Times – you might be someone that others could look to for career advice. If, however, you are someone that lost that job in public disgrace because of a history of serial fabulism, career advice might not be your forte.

Meet Jayson Blair, career counselor. Actually, not just a career counselor but a certified life coach – a certification that sounds like the premise of a comedy sketch. Ahem.

I'm not sure what else to say about this because my comedy instincts say "try not to make jokes about inherently funny situations; let the truth do the heavy lifting."

So there it is: Jayson Blair, notorious fuck-up, will tell you how you can improve your own life. I think we've found the only job easier to hang out a shingle for than "legal ethics expert."

via Brendan Koerner