1) I have read and enjoyed George R. R. Martin's A Song Of Ice And Fire.

2) I hate and despise my fellow man.

3) It logically follows that this made me smile.

I will begin by making an exaggerated claim which shows that I do not understand the scientific research at issue, nor indeed do I understand science at all, nor am I aware (because I hardly bothered to read the article) that it was written a year ago.

Second, I will link to and quote a portion of the article that shows the reporter is also a scientific ignoramus.

In this paragraph I will briefly (because no paragraph should be more than one line) state which existing scientific ideas this new research "challenges".

I will follow up with an arcane reference to a British science fiction tv series that hasn't aged well, but assume readers will get because I enjoyed the show when I was a child.

Finally, I will state that the reporter's ignorant summary of the scientific research supports my moral and political prejudices, denouncing those who disagree with me as morons whose beliefs endanger the world, or society, or children, as proven by science.

At the close of my post, I will write a brief, three letter word attached to a hyperlink (perhaps "Via") through which I grudgingly admit that I did not find the article myself (because who has time to read newspapers?), but got it from a more popular blogger.

A couple of nights ago, after a disappointment in a hockey game, a number of folks in Vancouver rioted. They smashed windows, looted stores, and overturned and torched cars. This was not a crowd of the dispossessed. This was a crowd of hockey fans.

I confess that I'm quite surprised that Canadians riot. I was under the impression that they were too polite. Riots involve rudeness. There's an unacceptable risk that someone might say something cutting that could hurt someone's feelings based on social condition or ethnic group membership or something.

Anyway, regrettably for them, these were not practiced rioters, and few came equipped with masks. In the age of the cell-phone camera, misbehaving in public carries with it a grave risk of worldwide exposure (as Hermon Raju, our friend from yesterday's post, might tell you). The rioters did not heed those risks; they capered for the cameras.

Now come the modern consequences.

Within hours, people on the internet began collecting the pictures and identifying the rioters, particularly those who were doing notably obnoxious things like setting police cars afire. With the aid of such identification, police have already arrested some. As I said, these were not the dispossessed — they were people like Air Cadets on their way to college and water polo stars with scholarships. Many of these were Canada's privileged. They had Facebook pages.

Now, thanks to the magic of Google, any inquiry into their names yields evidence of their bad public behavior.

How should we feel about that?

The comments in the posts linked above are a microcosm of the public debate over this phenomenon. Some advocate deliberate public shaming of people who engage in bad public behavior. Others accuse shamers of vigilantism, judgmentalism, and failure to respect the presumption of innocence, and assert that modern Google-fame is a disproportionate punishment that will follow bad actors for too long, because such people "just made a mistake."

Here's my take, which is not terribly different than what I've been writing about this phenomenon for three years:

Vigilantism: Exposing people to the social consequences of their misbehavior is not vigilantism. Subjecting them to physical danger is. That's why decent people involved in this process don't post home addresses or phone numbers, and delete them when they are posted.

Proportionality: The proportionality argument is at least somewhat misguided. First of all, bad behavior doesn't go viral on the internet unless it's really notable. Garden-variety assholes don't get top Google ranking. You've got to be somewhat epic to draw this modern infamy — by, say, being a water polo star on a scholarship trying to torch a cop car because your hockey team lost. Second, lack of proportionality is self-correcting. If conduct is actually just not that bad, then future readers who Google a bad actor's name will review the evidence and say "meh, that's not so bad. Everyone acts up now and then." Saying that bad behavior should not be easily accessible on the internet is an appeal for enforced ignorance, a request for a news blackout. It's saying, in effect, I'm more wise and measured than all the future people who might read about this; they can't be trusted to evaluate this person's actions in the right light, like I can.

"They Just Made A Mistake": The argument that bad actors shouldn't become infamous because they "just made a mistake" is a riff on proportionality. The same criticisms apply: it takes a hell of a mistake to go viral, and future viewers can make up their own minds. Plus, this argument is often sheer bullshit. Trying to torch a cop car because your hockey team lost is not a mere faux pas; normal and decent people don't do it.

Can internet shaming be disturbing? Of course. Threads about Hermon Raju are filled with racist and misogynist drivel. Threads about the hockey rioters are filled with calls for murder. But that's not too different from the way any thread on the internet goes — the trolls are always with us. Moreover, bigotry-driven shaming is self-defeating. Shaming depends on shared values; if communities don't share the values, the shaming doesn't work.

One of the criticisms of modern society is that we're indifferent and best and rude at worst too each other because we're anonymous. We get away with things in big-city life that we couldn't in small-town life because the consequences of our behavior don't follow our name. Can the internet be the antidote for that phenomenon, at least for epic bad behavior? Can it be an effective deterrent to bad behavior in public? Can cell phone cameras be the arms in the catchphrase "an armed society is a polite society?"

What do you think?

You remember John Fitzgerald Page, right? Freakish narcissist and oaf who failed to consider what would happen if his boorish behavior became widely publicized?

Johnny, meet Hermon Raju. I just know you kids will hit it off. You've got so much in common! Let's see: there's cringeworthy hubris about your educational background, frontal-lobe-damage-indicator sense of entitlement, pathological lack of shame, capacity for maniacal rudeness to strangers, and general insufferability!

And, hey, the internet has helped you both forge your destiny forever!

You kids have a good time. I want an invitation to the wedding, now!

Edited to add: A follow up thought . . . .

Since bullying people into taking down unflattering web sites blog posts is increasingly pointless given the Streisand Effect, I understand that reputation advisers nowadays generally tell people like Hermon Raju to create many, many new blogs and web sites and forum posts with positive references to themselves, in an effort to drive negative references lower in the Google results. Some reputation and PR firms even do this as a service, foisting a blizzard of cheery references to their clients onto the internet in a desperate gambit to game Google.

Hence, the remedy for narcissistic behavior that draws negative attention may be systematic narcissism.

It's a funny old world.

Edited again to add: More than three years ago I wrote about the modern consequences of such dickery in the context of another oaf; many of the same points remain.

Look, I'm as good a Roman as the next citizen.  I LOVE to see people tossed to the lions, and I'm enjoying Anthony Weiner's self-crucifixion with each … blow … of … the … hammer.

I felt no sympathy, whatsoever, until I read this:

Kirsten Powers IS an evil bitch.

For some time I've been talking about how politicians, and the lawyers defending their actions, encourage categorical thinking to persuade us to limit our own rights and the rights of others. We're conditioned to be most comfortable thinking in black-and-white terms and about simple and clearly defined categories of things rather than focusing on nuance or subtle differences. We're encouraged in this thinking by a legal system that operates based on precedent, and thus creates an incentive for the government to force its actions, legally and rhetorically, into the same category as actions the courts have previously endorsed.

For instance, we hate and fear terrorism. We're willing, as a society, to do almost anything to fight and resist and protect ourselves from the terrifying things in the dark, scary box marked "terrorism," which in our mind is filled with the World Trade Center falling and hijacked planes and dead innocents. When the government tries to drop particular individuals into that category, never to be seen again, we're not inclined to ask too many questions, however much we might normally advocate skepticism of government power. Hence most Americans have accepted the premise that the state can take any human being on the face of the Earth and detain him indefinitely, incommunicado, without recourse, under the conditions the state sees fit, upon the state's unreviewable determination (based on unreviewable evidence applied to unreviewable standards) that the person is a terrorist or "enemy combatant."

Not surprisingly, the government — always seeking more power — is trying to smuggle more and more things and people and actions into the "terrorism" box, like the War on Drugs and movie piracy. They know that once they drop something or someone into that box in our minds, we're more likely to accept uncritically their exercise of power against that person or thing. Sometimes we buy it, sometimes we don't. Too often we do — we allow the government to convince us, using broad categorical language, that something just doesn't fit into the "rights" or "freedom" box and just does fit into the "safety" or "OMG children" box.

If there's any category or box that robs us of critical faculties quicker than "terrorism," it's "sex offender" or ""OMG DANGER TO CHILDREN!". This week, Jacob Sullum at Reason has a searing piece on sex offender laws demonstrating how categorical thinking about "sex offenders" has led to infuriating, ridiculous, unjust results. It's brilliantly written and researched, and terribly important: I'll ask you to read it all, rather than quoting or paraphrasing. Sullum describes the disturbing consequences of the categorical approach to sex offender registries — like teens who have sex with their girlfriends being lumped in with rapists, sometimes with horrific results.

The government is perfectly aware of our susceptibility to the "sex offender" and "OMG Children!" categories, and is constantly trying to smuggle new things and people into those categories. Consider, for instance, the federal government depictions of cruelty to animals can be banned because they belong in the same category as child pornography, or states using our willingness to tolerate sex offender registries to create animal abuse registries.

This sort of thing persists without much pushback because categorical thinking lends itself to being used as a weapon against people who oppose it. If you question the grounds for the invasion of a dictatorship, you're "objectively pro-dictator"; if you question over-criminalization or the penalties applied to convicts, you're "sticking up for violent sex offenders." That's why the number of criminal laws only changes in one direction (more, more more) and the severity of sentences only ratchets in one direction (up, up, up) — anyone who suggests we should do otherwise is described as "on the side of the criminals." Our receptiveness to that sort of thinking is the primary barrier to a serious discussion about the War on Drugs, with all of its ruinous expense and increased government power — sensible politicians know that we're too likely to accept the argument that they are "soft on crime" or "indifferent to danger to the children" if they engage in an open-minded dialogue about decriminalization.

Everyone in our society has rights — even people accused of, or even convicted of, horrific sex offenses. But there is more at stake in sex offense cases than the individual lives of the accused. What's at stake is nothing less than our willingness, as a society, to accept at face value the categories and labels that the government employs to persuade us, and to accept dramatically increased state power and reduced individual liberty as a result.

Just before leaving the office last night I got a call from Greg, of Greg's Quality Plumbing.  Greg does seem, on the phone anyway, to be a quality plumber: a nice guy running a six employee shop for new construction and homeowners.  Unfortunately one of Greg's employees made a mistake, overtightening a compression nut on the toilet water supply line in a very expensive house insured by BigState Casualty Insurance Company.  The nut eventually fractured,over Christmas vacation with the family out of town, and the water flowed for days.  BigState paid hundreds of thousands of dollars to rehabilitate the waterlogged house, and wants its money back.  From Greg's Quality Plumbing.

And so Greg got my letter, and Greg picked up the phone to sort this all out, and to set me straight.  As I said, I have no doubt Greg is a quality plumber but Greg is an absolute amateur when it comes to dealing with sharks in the water.  He made a number of serious mistakes, feeding me information about his business, the employee who did the work, the general contractor who built the house and will be cross-claiming against Greg in the coming lawsuit, and Greg's business assets.  All while trying to set me straight.

In the end, Greg did not set me straight.  What he accomplished was to give me information I will use against him at his deposition and at trial.  He kneecapped the defense attorney his insurance company will retain, an attorney who won't even hear about the dispute between BigState and Greg's Quality Plumbing for several months.  I almost feel sorry for Greg, who came into the conversation with high hopes that he would frighten me off or convince me that I have no case against him.  All that he did was convince me to write this post, as friendly advice to small businessmen on what to do when they get "the letter".

1. When you get a letter from a lawyer, read it. Read it immediately. Read it more than once. Then take a short break, and read it again.  When Greg called me, he told me he "wanted to find out what all of this was about."  If Greg had bothered to read my letter, which detailed exactly what we think the problem was, what we want from Greg, and how to give us what we want, he wouldn't have needed to call me. And he wouldn't have answered a bunch of my questions as I pretended to search my files and databases to get to the bottom of the problem in BigState v. Greg's Quality Plumbing.
2. Don't be an ostrich. Don't ignore the problem: It won't go away. I've spent most of my career defending clients for insurance companies, so I've ceased being amazed at how people hide their heads in the sand when they get bad news. But they do. They even get a "letter", by certified mail, that says CIVIL SUMMONS with another "letter" titled COMPLAINT attached, and file it away, meaning to get around to responding to it. They violate rule #1, failing to read the Summons which clearly states that they have 30 days to respond, in writing filed with the clerk of court, or something bad will happen to them. After you've read the letter, you need to frame a response. And that response should not come from you.
3. Don't be an internet hero. You read a lot of things on the internet: you read about the day-to-day life of lesbians in Syria. You read about cute women who are just dying to meet lonely men in New York. And you read stories about laypeople who've beaten lawyers at their own game, with nothing but their wits and the righteousness of their cause. Those sure are nice stories, but are they true? All I can judge from is my own experience: I've never "lost" a case, for the plaintiff or the defendant, in which I faced a layperson on the other side. ("Losing" is a relative term: every time I litigate against laypeople, I feel like a loser because it's like beating up a twelve year old.) I've beaten a neurosurgeon who could have afforded counsel but didn't feel the need because it was a small case, he was right, and doggone it he was smart. I've beaten a hyperlitigious crank who's filed so many pro se lawsuits she's been featured in the Wall Street Journal and Forbes. And I've beaten everyone in between. Because while I'm not all that smart, I'm old. And I've been doing this for a long time. You haven't. Which leads to:
4. Shut up. Wise advice, that applies to civil matters as much as criminal cases. Don't call the lawyer who sent you "the letter" to "set him straight". You won't solve the problem on the phone.  But you might hang yourself.
5. Get help. Obviously the person or company on the other side thought the dispute between you was important enough to retain counsel. That's a hint. If you have a business, you probably know a lawyer. Even if you don't, your customers and friends do. Ask around, discreetly (i.e. not blabbing all over town that you're getting sued), for the name of a good lawyer or two. And call the lawyer. Today. If the lawyer doesn't call you back with reasonable promptness (meaning if you call me at 11pm on a Saturday, don't expect a return call before midnight), call another.
6. Get professional help. Bob who pleads out speeding tickets for $250 a pop at the courthouse may be a good negotiator, but he's probably not the best choice to address your bank's demand for you to cover that Nigerian "certified check" that turned out to be fraudulent. The best source of legal referrals is other lawyers. By all means ask the lawyer whether the problem facing you is in one that's in his field. You'd be happy to have an ophthalmogist stop to help you as you lie bleeding on the side of the road, but once you get to the emergency room you'd want a trauma surgeon. If as Robert Heinlein said, specialization is for insects, that explains why lawyers give many people the creeps.
7. Don't be penny-wise but pound-foolish. If you're getting a letter from an attorney because you owe sixty dollars at the video store, just pay the bill. If you're getting a million dollar demand because old Ms. Shuffler broke her neck when she slipped in the banana aisle of your store, get out your checkbook. You're going to need a quality defense.  Which leads to:
8. Are you in good hands? Any claim that could conceivably be covered by your business's insurance policy (you are insured, right?) should be reported to your insurance company. In writing. Immediately. If you don't report a problem to your insurance company because you don't want your rates to increase or you're afraid they'll cancel your policy (as clients have told me when I was asked to get their default judgments set aside), YOU'RE DOING IT WRONG! What do you think you're writing the premium check every month for? If a loss is even arguably covered, your insurer will take over negotiation of the claim, speak for you through an adjuster who's not terrified of lawyers, and hire a lawyer to defend you at its own expense. Don't be Greg of Greg's Quality Plumbing, who should have turned this over to his insurer (in fact that's what I told him to do) and then could have rested easy.
9. Keep your files. It should go without saying, but when you get a notice from an attorney, or for that matter the government, the first thing you should do is not to throw away all records relating to whatever the problem is. Covering up may turn a humdrum civil case into a criminal case. Instead, turn the file over to your lawyer. Let him worry about what to do with it. And lastly,
10. Don't get depressed. And don't panic. The sonofabitch who sent you that obnoxious letter may not love you, but plenty of other people do.

Lawyers should feel free to criticize or supplement this list in comments.  Our lay readers are encouraged to tell us stories of how they fought City Hall and The Man on their own, and won.

Last week I wrote about the awful and patently unconstitutional proposed Tennessee law making it a crime to post mean, feelings-hurting pictures on the internet. I dropped a line to the bill's proponent, Rep. Charles Curtiss (whose name I misspelled throughout; my apologies). Since then, two things have happened:

1. I learned that, contrary to my careless impression, the law has actually passed, and

2. Rep. Curtiss sent me an email responding to my post, as follows:

Ken,
We have heard the concerns. However, the bill was drawn by our attorneys to only apply to very limited circumstances of severe cases of cyberbullying in which the local District Attorney would have to initiatiate, not an individual as some have suggested. The bill was vetted through the committee process and amended before being overwhelmingly passed in a bi-partisan vote. To ensure that it does only apply as intended, we have asked for an attorney general opinion on the matter. We will keep you informed as to the outcome.
Sincerely,
Charles Curtiss

Kudos are due to Rep. Curtiss to responding to a citizen – and not even a citizen in his constituency — who expressed a concern (in rather rude terms) about the constitutionality of a law. Not many would respond at all, let alone response to a snarky asshole blogger taking shots from across the country.

But he's still an oathbreaker. His response (which, to be fair, is probably not intended for attorney consumption) is frankly ridiculous:

1. If their attorneys attempted to draw the bill narrowly to only apply to very limited cases of cyberbullying, then their attorneys suck. Period. Full stop. It doesn't take Eugene Volokh to point out its vagueness and overbreadth problems.

2. It is no comfort at all that the District Attorneys of Tennessee will exercise discretion about which cases to bring. That is, in fact, the opposite of comforting. It means that District Attorneys will be able to pick and choose whom to prosecute for violating a vague law based on their personal agreement or disagreement with the defendant's message. It is precisely the pernicious sort of discretion to censor that First Amendment caselaw prohibits.

3. The fact that the bill was "vetted" through committees and overwhelmingly passed does not magically render it constitutional. Rather, it calls into serious question whether Tennessee lawmakers as a body are faithful to their oaths to uphold the constitution — or capable as a body of grasping that oath.

4. Passing vague censorship laws and then narrowing them by attorney general opinion is no way to run a state.

Rep. Curtiss, and his ilk, are simply relying upon the public's willingness to engage in categorical thinking. He believes — probably correctly — that if he slaps a label like "cyberbullying" onto a law, the public will not inquire further. That's regrettable, and does not fulfill his oath to uphold the United States constitution.

Six years ago today, my partner and I — fugitives from BigLaw — opened the doors to our new firm. We had rented desks, lots of boxes, phones that occasionally worked, and a ingrained distaste for big-firm practice.

Six years later, we've got more than a dozen lawyers and enough employees that sometimes I don't recognize them all, and they don't recognize me. Some of that is to the good, some is not.

A few things I've picked up about starting your own law firm in six years:

1. When you're at a big firm, and a partner or associate isn't working out, you can find someone else to work with, either on an emergency basis or in the long term. At a small firm, you're stuck with what you've got, unless you want to go through the unpleasant and sometimes expensive business of firing and re-hiring. So: invest a lot of time in interviewing and vetting the people you hire. Follow up on references. Use connections to get the inside scoop on people. In a small shop, you've got no choice but to rely on them.

2. If BigLaw has infected you with school snobbery, it's time to grow up and get over it when it comes to hiring associates and partners. Plenty of fantastic lawyers didn't go to Harvard, Yale, Stanford, or Chicago. Some of our most standout lawyers have been people who would have a lot of trouble even getting an interview at BigLaw because they didn't to a top-50 school. But their "second-tier" or "third-tier" school taught them more about actually doing competent legal work than the ivy-festooned schools, which tend to focus on training people to teach other people about the philosophy of law. They need jobs, they're just as capable of excellent work, and they won't arrive with the entitled attitudes that some ivy refugees get. That's your competitive advantage over BigLaw. Use it.

3. The time you invest in your associates — showing them how to do things right, giving them lots of feedback on their work, and explaining why you are doing what you are doing — pays back tenfold in the long run. If I spend 100 hours this year painstakingly training up an associate, that's about 500 fewer hours I have to spend next year on writing first drafts of stuff myself, because that associate is going to be trained to do things right the first time, and is going to develop into someone whose work I can trust.

4. Turnover is killer, and retention is key. Unless you're in extraordinary circumstances, you're not going to be able to match BigLaw salaries. Don't pretend to try — particularly in this economy. People will stay with you at a fraction of the salary that BigLaw pays if you give them what they can't get at BigLaw: decent and respectful treatment, no bureaucratic bullshit, more reasonable and honest billable hours requirements, and access to significant work. Let them wear jeans, for God's sake. Make it clear that as long as they get the work done and they're available by email and return client calls, you don't care what time they come in or leave. Order in lunch a lot and have the whole firm eat together. Handle minor legal matters for their family and friends for free — because you take care of your people. That sort of decent treatment gets a type of loyalty that BigLaw's ludicrous salaries never will.

5. Small firms and new firms tend to be very nervous about bringing in business. Never lose sight of the fact that the most important way to keep business coming in is keeping your clients happy through quality work and responsiveness. If your economic model depends on high volume rather than satisfied customers, you're running a mill, not a firm.

6. As soon as you can afford it, hire someone to handle HR and office-management crap. You'll be amazed at the number of hours you get back, how much of a relief it will be, and what you can accomplish in those hours.

7. Find friends and colleagues who have opened small firms and take them to lunch to pick their brains for pricing information. The first few times you make a flat-fee offer, you may either price yourself out of the market or take a bath. Ask for help learning the economics of it.

8. Sometimes you'll make more money turning a case down than taking it. Listen to your gut when it tells you a prospective client is a crank, a nut, or a con-artist. If they've cycled through three or four sets of lawyers, and they're bad-mouthing them all, the problem might be with the client.

9. If you can't have drinks in the conference room at 4:30, or close the office and take everyone bowling, or take a pro-bono case just because you want to, why did you start your own shop in the first place?

The DEA's investigations produce a huge volume of wiretaps and other monitored conversations. Many are in other languages. Back when I was a fed, the DEA agents were free to pick whichever professional translator they wanted to produce English-language transcripts. Many translators advertised to the DEA agents. In the late 1990s, the criminal defense bar managed to get copies of some of those advertisements, and used them to devastating effect in cross-examinations. See, some translators would pitch their services by suggesting that they would skew the translations to support the government's theory of the case, saying things like "pick the right translator, because one word can mean the difference between guilty or not guilty."

This produced unpleasant tension between federal prosecutors and the DEA. The AUSAs didn't want to try cases based on tainted translations, and the DEA agents were loyal to their pet translators and saw nothing wrong with translators as advocates. Sometimes the federal prosecutors were obligated to pay with their own budget to have the tapes re-translated by a translator without such baggage.

That's always going to be a hazard when cops and prosecutors seek expert services in cases, whether those services are linguistic or forensic. So when I saw that Radley Balko was using his new platform at HufPo to suggest privatization of crime labs, I was skeptical. Balko has done great work on crime lab issues at Reason for years, but how could privatization work?

Fortunately his proposal is structured to prevent the sort of incentives and biases I'm concerned about. Balko is advocating a system suggested by Reason Foundation writer Roger Koppl:

Instead, Koppl's plan would use competition to remedy the incentive and cognitive bias problems that occur when analysts who are supposed to be objective work for and report to the same government agencies that then use their results to try to put defendants in prison.

Under Koppl's plan, a city or state would create a position of "evidence handler." The evidence handler's job would be to distribute the testable evidence in a case to the appropriate crime lab. Under a fully privatized system, the evidence handler would distribute it to one of a rotating series of private labs. Under a partially-privatized system, there would still be a state lab, but under both systems, in every third case or so, the evidence would be sumbitted to a second or third lab for verification. The original lab would not know when it was being checked by other labs.

This system, which Koppl calls "rivalrous redundancy," flips the incentive problem upside down. For the individual crime lab worker, the incentive is no longer to please prosecutors or police, but to do the most thorough, sound, objective analysis possible. For the private labs, the incentive is to catch the state labs — or another private lab — making a mistake. When there's conflict over test results, a third or fourth lab could come into the mix.

I think it's a start. The key would be to expose the private lab selection process to exacting scrutiny, to avoid selection based on promises of "helpful" results. We'd also need to ensure that when private labs expose shoddy work by state labs, there would be real consequences for state lab workers — no easy task when those workers belong to government employee unions. We'd have to watch for revolving-door systems where "helpful" performance at a private lab can lead to a job at a public one, or vice-versa — the sort of rewards system that taints Congress and our federal agencies.

Mostly, we'd have to continue to work to change public attitudes about the role of law enforcement, hardened by two generations of insipid law-and-order rhetoric. The glut of forensic shows on television only encourage the public to view lab workers as righteous advocates, actively involved in investigations and questing for information that will confirm their suspicions about defendants. The public is still far more upset about crime labs that fail to catch criminals — as in the cases of untested rape kits — than they are about crime labs that bungle, stretch, or falsify results to produce questionable convictions. In short, for now, too few people give a shit.

The recently and awesomely re-launched blog Nobody's Business has a couple of posts addressing a core nanny-state issue from a couple of angles: the problem of children.

No, not the problem that they are maniacal and impossible to reason with.

I'm talking about the problem that children bring out our most authoritarian impulses. Children take our theoretical devotion to liberty and reduce it to a practical appetite for Mrs. Grundyism and micromanagement. Children are the bloody shirt waved by the most enthusiastic and controlling nannies amongst us. I've just created a new tag — Think of the Children! — to aggregate all of our posts discussing how real and imagined threats to children lead us to tolerate intrusions into their lives and ours. (I also retroactively applied the tag to appropriate past posts. I need a drink now.)

Nobody's Business has two important posts touching on this phenomenon.

First, Rick Horowitz talks about how eager we are to judge parents — and involve the government — when we conclude, based on limited information, that parents are not doing a good enough job of watching their kids. If you've ever been on a mommy blog or an adoption blog or a parenting blog, you've seen it: someone tells a story about seeing neighbor kids out late unsupervised, and suddenly the thread is full of people telling the storyteller to call Child Protective Services — as if that's rational based on the information presented, as if a call to Child Protective Services is likely to work to the benefit of the children. This goes to an ethos that is at the heart of why we allow our fellow citizens to use kids as excuses to violate everyone's rights: people who are lovely, open-minded, and un-judgmental about other issues are often judgmental assholes about parenting. That's how citizens of a free society can talk themselves into using laws, or lawsuits, to micromanage everyone else's parenting: because many people think that everybody but them sucks as a parent.

Second, Mark took apart economist Steven Levitt's "daughter test" — the admission that in considering what society should criminalize something, he thinks about whether he'd want his daughter to do that thing. As Mark suggests, Levitt's sin is being too honest — he admits to what too many citizens are secretly thinking. We want the state to parent for us — to forbid things we don't want our kids to do. We want the state to step in to parent other people's kids as well, because — as established above — we secretly think those people suck as parents.

I was completely unprepared for how powerfully I would love my kids, so I sympathize with the tendency of kids to impair our capacity for rational thought and lead us astray from our ideals. But as Rick suggests, we have to stay strong for their sake — ultimately they won't thank us if we chain ourselves, and them, out of fear and for their putative own good.

Edited to add: Fixed messed-up links. Sorry.

Maybe we're too tough on whiny, litigious, censorious businesses. After all, we infantilize their customers and employees. We run the justice system so that they can be sued for any damned-fool thing, so that they lose (in terms of ruinous attorney fees) even when they "win" in court.

So maybe businesses aren't entirely wrong to figure this: if everyone else gets to act like children, why should we be expected to act like adults? Why shouldn't we get a piece of this vexatious, tantrum-throwing, consequence-free litigiousness?

That seems to be the view of purveyor-of-clothes-that-appear-ugly-to-me Forever 21.

Forever 21 is thoroughly butthurt over the existence of a blog devoted to humorous comment on its fashion choices, WTForever 21. WTForever 21 mercilessly skewers, and occasionally praises, the Forever 21 fashions that (God above help me) my daughters will be considering before I know it. Forever 21 self-identifies throughout as an independent site not affiliated with Forever 21, and nobody but a drooling idiot could confuse Forever 21 with its amusing (if somewhat earnest) critic site.

But this is America, and someone's butthurt, so someone must threaten to sue.

In this case the emissary of butthurt is an in-house counsel at Forever 21 named Jerry Noh, a 1997 law school grad who really ought to know better. Despite the fecklessly thuggish task facing him, let nobody say Jerry Noh didn't do his best. He gamely claims that WTForever 21 threatens confusion with Forever 21's mark, complains that the "WTF" part threatens to associate Forever 21 with an offensive phrase (ignoring, or perhaps not grasping, how this second argument undercuts the first), and blusters that Forever 21 will be suing for trademark and copyright infringement, dilution, unfair competition, and "other unlawful conduct."

Here's the thing: Noh — and Forever 21 — are full of shit. WTForever 21 is entirely non-commercial and clearly critical and (to some extent) satirical. Non-commercial critical and satirical sites do not infringe copyright or trademark and are protected by the First Amendment. The discussion of why is too long and dreary for this post, but the strong trend is for courts to protect gripesites under First Amendment, fair use, and non-commercial analysis, in large part due to the efforts of various organizations that have stepped up to support gripesite bloggers. As a result cooler heads generally counsel companies against picking fights with gripesites.

When companies have prevailed over critical sites, it's often been through rank thuggery — through wearing down critical sites with the stress, ruinous expense, and inconvenience of censorious litigation. That's Forever 21's credible threat here — not so much that they'll prevail, but that they'll make this blogger's life miserable. It's the threat of a loathsome bully. Good for the blogger, Rachel Kane, for standing up. When people like Rachel Kane stand up to bullies, it makes it a little bit easier for each and every one of us to stand up to bullies. And boo hiss to Jerry Noh and Forever 21 for their thuggery — thuggery which, in typical Streisand Effect fashion, has drawn several orders of magnitude more eyes to WTForever 21 than otherwise would have heard of it.

Mr. Noh, and Forever 21, are in California. I don't know where Ms. Kane is. If Forever 21 sues, I hope that they sue in a jurisdiction like California that has a strong anti-SLAPP statute. Such state statutes — and the proposed federal Citizens Participation Act — serve many purposes: (1) they provide a procedural vehicle for a swift and decisive attack on a censorious suit, (2) they award attorney fees to the prevailing defendant, which both encourages attorneys to take on cases for defendants who might otherwise not be able to afford it and inflicts consequences on censorious plaintiffs.

There are many lawbloggers out here who talk about free speech and decry thuggery like that displayed by Forever 21 and Jerry Noh. Let's put some skin in the game. So, WTForever21 and Rachel Kane, because you've stood up, let me make you this offer: if Forever 21 sues you, I'll do my best to find you a competent lawyer who will take the case in a manner you can afford — either a public interest group, a lawyer willing to take it on the expectation of recovering fees through a successful anti-SLAPP motions, or a lawyer willing to do it pro bono. Who knows? That lawyer might be me. I've had some success with anti-SLAPP motions. I call on my fellow lawbloggers — particularly ones who have expressed interest in First Amendment issues — to make the same pledge. Let's back the people who stand up against the thugs.

I visit Tennessee now and then. My in-laws live there. It's a beautiful state, the people seem friendly, nobody gives us trouble because my family looks different, and I always enjoy my time there.

So it pains me to realize that, under proposed law, I may be arrested the next time I go there.

See, Tennessee General Assembly Representative Charles Curtiss, a Democrat! From! SPARTA!, wants to make it a crime to post mean pictures on the internet.

I don't think I can obey that law. I can't even obey it just in Tennessee. I mean, what's life if I can't post stuff like this?

Eugene Volokh has the specifics — and pertinent analysis – of Rep. Curtiss' proposed law:

(a) A person commits an offense who intentionally:

(4) Communicates with another person or transmits or displays an image in a manner in which there is a reasonable expectation that the image will be viewed by the victim by [by telephone, in writing or by electronic communication] without legitimate purpose:

(A) (i) With the malicious intent to frighten, intimidate or cause emotional distress; or

(ii) In a manner the defendant knows, or reasonably should know, would frighten, intimidate or cause emotional distress to a similarly situated person of reasonable sensibilities; and

(B) As the result of the communication, the person is frightened, intimidated or emotionally distressed.

So, let's say I take this picture of Rep. Curtis:

I am a serious Rep. This is a serious issue.

And then say that, with the intent to cause Rep. Curtis emotional distress for being a censorious twat, and to intimidate him into respecting the Constitution of the United States, I post this:

No doubt Rep. Curtiss will be emotionally distressed. Am I a criminal in Tennessee — and this time not just for using big words?

Rep. Curtiss, like just about every other legislator in this country, took an oath of office. Part of that oath was a solemn vow to support the Constitution of the United States of America. By proposing patently unconstitutional drivel like this, Rep. Curtiss joins a long line of oathbreakers — government officials who are indifferent to whether their actions comply with the constitution. Such people promote contempt of the rule of law. They ought to have emotionally distressing pictures of them posted on the internet.

Edited to add: My apologies to Rep. Curtiss for misspelling his name in this post originally. Also, I note that the bill had already passed when I wrote this. Rep. Curtiss responded rather graciously — though unconvincingly — here.

What would happen if the TSA encountered a severely mentally disabled man?

If you don't know the TSA — or if you have no heart — it might sound like the setup to a joke. It's not. It's every bit as loathsome and infuriating as you expect.