Back when my mom was sick, we had a deeply uncomfortable conversation about whether I could find marijuana for her. It was deeply uncomfortable because (1) it showed me that my very traditional and straight-laced mom, a very anti-drug junior high school principal, was very ill and in a lot of discomfort from chemotherapy, and (2) we both knew that, as the world's biggest dork, my access to marijuana was roughly comparable to my access to the nation's nuclear launch codes or to Angelina Jolie's bra strap. She passed before the topic came up again.

Medical marijuana had been legal in California for two years then; now it's been fifteen years. Yet anyone looking for medical marijuana still has to wrangle with both lawless local drug warriors and hostile federal law enforcement. Even in California, even fifteen years after Proposition 215, even in a nominally federal system, anyone looking to obtain (and, especially, to provide) medical marijuana is rolling the dice with their freedom and future.

The Obama Administration could be saying smart things about this, making an effort to change the national conversation and move it incrementally towards a sane policy. Instead, President Obama thinks that decriminalization is an issue worthy of snickers. And his Drug Czar, Gil Kerlikowske, is doubling down the stupid by arguing that even acknowledging the existence of medical marijuana will encourage our kids to toke up.

"People keep calling it medicine," he said at a press conference today, "and that's the wrong message for young people to hear."

It's not enough to the drug warriors to prosecute medical marijuana providers. Now they want to widen the pointless, ineffectual, and long-since lost War on Drugs into a War on Language as well. They might have better luck with that particular skirmish — bureaucrats are good with linguistic slap-fights.

Through the link, over at Reason, Jacob Sullum demolishes Kerlikowske's bad logic and junk statistics. Check it out.

Bob Oschack is apparently a comic, of sorts, and until very recently worked for a Fox Sports online video series called "The College Experiment," billed as a "comedy-driven, weekly cocktail of hot co-eds, non-stop partying, sophomoric humor, and a dash of college sports."

You know how this turns out, right?

Apparently Oschack and the College Experience team thought it would be hilarious to do a piece with the premise "lame Asians at USC have funny accents and don't know anything about college football, hyuck hyuck!" You might find it funny — if you are twelve, or have a very low threshold for amusement, or think that Mickey Rooney was hilarious in Breakfast at Tiffany's. Pretty much everybody else thought it was douchey, unfunny, and really kind of insipidly racist. I share that view, even though as a matter of principle I strongly support ridiculing USC students at every opportunity.

As a result, Fox Sports apologized and cancelled the show.

All of that — asshole acts like asshole, gets treated like asshole — is banal. The backlash, as usual, will be more interesting. Let's anticipate some arguments:

1. "OMG what about Bob Oschack's free speech rights?" What about them? How are they relevant? Bob Oschack isn't being prosecuted or sued. His free speech rights aren't at issue. Rather, his private employer decided that (a) it would be bad business to be associated with his douchiness and/or (b) it was distasteful, as a matter of branding, to be associated with his douchiness, and canned him. That's Fox's right, as a matter of its own free speech and economic freedom. Just as it's not necessary to genuflect towards "my God that person is an asshole" when we defend someone from official censorship, it's not necessary to genuflect towards "naturally he can't be prosecuted for this" when we call someone out as an unfunny choad.

2. "OMG political correctness is run amok!" Oh, whatever. The sort of political correctness I care about is the kind backed by official action — like the sort of stuff FIRE documents. I really can't bring myself to care about "political correctness" in its modern, moral-weakling, watered-down sense, which seems to be "boo hoo, I can't act like a dick without people treating me like a dick." Speech is not tyranny, and only weenies think it is.

3. "OMG people don't have a sense of humor!" Meh. There's a great part in one of P.J. O'Rourke's books where he covers a dispute at a college newspaper over whether to run an advertisement by a Holocaust denier. One side argues that freedom requires it, the other argues that it's offensive. "Nobody considered whether it should be rejected because it was a piece of shit," P.J. observes. I think that "edgy" humor gets what I will, in politically-incorrect fashion, call affirmative action treatment: people get caught up in whether it's offensive or not, and what that means, without considering if it's a piece of shit whether it's offensive or not. This explains the greater part of Bill Maher's career. Here? Belabored, smirking, badly paced, badly shot. Piece of shit — even before we get to whether it's obnoxious. Which it is. Sorry, Bob.

Compared to traffic at other sites, Popehat remains a big-tiny blog, or small-little blog at most. But yesterday, thanks to the traffic on the TSA post from earlier in the week, was unusually big. What does that look like?

Visitors: 16,634
Visits: 18,732
Pageviews: 27,408

Visitor countries: more than 100 (with the United States, Canada, the U.K, Germany, and Australia in the lead)
Visitor browsers: Chrome in the lead, followed by Firefox 6, Firefox 3 (seriously?), and IE.
Visitor languages: 26, with English first, followed by "unknown" and French.
Visitor platforms: 34, with Windows 7, Windows XP, and Mac in the lead.
Visitor "organizations" (which sometimes captures your ISP, and sometimes your actual employer): hundreds, with Comcast in a clear lead. Lots of universities, law firms, and government, including the Social Security Administration and Department of Homeland Security (hi, guys!).

Referrers: Top sites were our friends at The Agitator, View from the Porch, Says Uncle, and Overlawyered. Unusually high volume from social networking sites and bookmark sites, particularly Reddit. Top Google search, by a country mile: Thedala Magee. How many read it on feed readers without clicking through? For that matter, how do I find a reliable count of feed subscribers? No idea.

Number of personal insults, lawsuit threads, or fully deranged statements: oddly, none. What's up with that?

Lawyers:

If you quickly say, "I'm sorry, I don't think my firm can handle this case, but I wish you the best of luck, goodbye," the instant you hear any of the following words or phrases from a cold-call potential client:

* CIA
* Implanted
* Tapped my phones
* Gangstalking

. . . . then there is a very negligible chance that you will miss an awesome case, but that chance will be more than made up for by the many hours of your life you will get back.

You're welcome.

(Attorney readers are invited to add more words and phrases.)

Some theories:

1. They associate anti-TSA complaints with politicians who hold views they don't like. "Complaining about the TSA must be glibertarian, because Rand Paul does it," or "Rick Perry pulled that anti-TSA stunt, so this is more of the same."

2. The associate anti-TSA complaints with political movements they don't like. "Oh, that whole 'don't touch my junk' thing is just Koch-funded astroturf aimed at deregulation and lower taxes and union-busting."

3. They accept the government's claims about safety, necessity, and effectiveness. "The government says this is to protect us, so why are you complaining?" "Don't you remember 9/11? Do you want to fly with people who haven't been searched?"

4. They accept the government's claims about proportionality, propriety, and bodily autonomy. "What's the big deal about being patted down? What's wrong with that? Your doctor touches you."

5. They accept the government's venerable message that it's the citizen who needs a justification to resist intrusion, not the government that needs a justification to intrude. "Look, if you don't have anything to hide, why do you care?"

6. They accept stereotypes about people who resist government intrusion. "People who make a big deal about this sort of thing are just looking for attention."

7. They believe that government actors should be viewed sympathetically in their private capacity rather than as state actors in their public capacity. "Look, this is just someone trying to get through the day and do his or her job, not someone trying to violate your rights."

8. They view discussions of individual rights — particularly rights relating to freedom from unreasonable search and seizure — as "liberal," pro-criminal, anti-law-and-order, or otherwise ideologically suspect.

9. They have accepted the Starving Child Fallacy — the proposition that there is a limited amount of ones and zeroes on the internet to be devoted to talking about things we don't like. "Look, you're talking about a momentary search. You could be talking about the economy, or war, or children starving right now in Africa."

10. Congnitive Dissonance. "You want me to believe that our government — which is supposed to be protecting us — is engaged in mostly useless security theater, and that people have to speak up and make trouble and do uncomfortable things if they want to change it? I can't believe that."

On March 31st of this year, Amy Alkon — a writer who blogs at the Advice Goddess Blog — was sexually assaulted in front of dozens of witnesses.

The person who sexually assaulted her was not punished and will not be punished. Why? Because our government sees fit, as part of its policy of security theater and perpetual wartime mentality, to confer a privilege to sexually assault strangers in public upon certain people: employees of the TSA.

Amy — who refused to be scanned — was instead forcibly groped by a TSA employee. Unlike most Americans, she didn't take it quietly. She expressed her feelings of violation and humiliation, in person at the time and in writing later:

Basically, I felt it important to make a spectacle of what they are doing to us, to make it uncomfortable for them to violate us and our rights, so I let the tears come. In fact, I sobbed my guts out. Loudly. Very loudly. The entire time the woman was searching me.

Nearing the end of this violation, I sobbed even louder as the woman, FOUR TIMES, stuck the side of her gloved hand INTO my vagina, through my pants. Between my labia. She really got up there. Four times. Back right and left, and front right and left. In my vagina. Between my labia. I was shocked — utterly unprepared for how she got the side of her hand up there. It was government-sanctioned sexual assault.

Amy's public assault is not unusual. Stories of gratuitous and inappropriate touching by TSA employees are legion. The stories range from inhuman indifference to deliberate humiliation. Many of those stories emphasize that showing any resistance — whether by opting out of scanners, or voicing objections to groping — will result in immediate retaliation, and possible official investigation, by TSA employees. The TSA has reached the point that its sense of entitlement is nearly impervious to satire. Yet our government assures us that our concerns are meritless.

Despite the wide audience she enjoys, Amy's story could easily have been lost in the din of routine TSA excess. But because Amy didn't take it quietly — because she called the TSA employee out for her assault, and because she wrote about it — now she's facing a legal threat.

The TSA agent — one Thedala Magee — has demanded that Amy pay her $500,000 for Magdee's distress at being called out.

In your blog of April 26, 2011, you admit to having yelled at my client, "You raped me" on March 31, 2011 for all within earshot and you have continued to compound your torts against my client by repeating this along with a detailed description of what you claim my client did to you, including the statement that my client inserted her fingers into your vagina.

These outbursts in public and writings on the internet have subject my client to hatred, contempt, ridicule, or obloquy, and have injured her in her reputation and her occupation. Furthermore, as a result of your actions, my client has suffered and continues to suffer damages including but not limited to severe emotional distress, fear, difficulties performing her duties, and other problems as a proximate result of your tortuous actions.

Your statements were outrageous and malicious and made with the intention to cause or made with the reckless disregard of the probability of causing severe emotional distress and suffering, and they were the actual and proximate causation thereof.

See, in our national scheme of security theater, it's Thedala Magee's role to touch the genitals of strangers, and it's Amy Alkon's role — and yours, and mine — to stand there and take it, or the terrorists win. Amy upset that natural order — so it must be a payday for Magee.

You might think that it's ludicrous, freakish, unbelievable that anyone would think it appropriate to threaten suit when someone objects to being touched by a stranger in public. But in America, there is no banner so loathsome that some bottom-feeding thug from my profession won't take it up. Today's bottom-feeder is Vicki Roberts. What kind of lawyer is Vicki Roberts? Well, before you even consider the legal threat she issued in this case, I invite you to consider the following factors:

1. Her web site is called www.restmycase.com.
2. It includes a memorial to her dog. [My position is that dogs are nice and it is sad when they die.]
3. She is very proud of her repeated appearances on the television show "Celebrity Justice."
4. She is very proud of her IMDB entry. Proud enough to tout that she got "Additional Thanks" for a movie, and that she played herself in Weiner Strudel. [My position is that strudel is good.]
5. She is extremely proud of having been a judge pro tem for the Los Angeles County Superior Court. To give you a hint of how rigorously selective that process is, they once tried to make me a judge pro tem of the mental health division.

That's the sort of lawyer who sends a bullying demand letter to a writer who talked about her experience with a rough TSA patdown. Go figure.

Perhaps Ms. Magee — and Ms. Roberts — thought that Amy Alkon could be bullied. If so, they haven't read much of what she's written. Lawyers like Roberts — and litigants like Magee — depend on terrifying people with their frivolous claims. Amy's not terrified. Amy already has a lawyer in her corner who, legally speaking, is going to kick the living shit out of Roberts and Magdee if they are foolish enough to pull the trigger on this vexatious lawsuit. Yes — as narrative and dramatic convention requires — it's First Amendment lawyer Marc Randazza. He's written back to Roberts already. It's everything you'd expert, legally and rhetorically:

First of all, Ms. Magee did rape my client. Your client aggressively pushed her fingers into my client’s vulva. I am certain that she did not expect to find a bomb there. She did this to humiliate my client, to punish her for exercising her rights, and to send a message to others who might do the same. It was absolutely a sexual assault, perpetrated in order to exercise power over the victim. We agree with Ms. Alkon’s characterization of this crime as “rape,” and so would any reasonable juror.

Roberts, as the sort of lawyer who is proud of appearing on "Celebrity Justice," may be stupid enough to sue anyway. If so, she's going to learn a swift and vivid lesson about California's anti-SLAPP statute. Her client may well wind up paying Amy Alkon's attorney fees. She's also going to learn about the Streisand Effect — her client, once obscure, will become intensely internet-famous as a government employee who tried to shake a writer down for half a million bucks for complaining about having her vagina touched. I wonder — did Vicki Roberts warn her client about the Streisand Effect before sending this threat letter? In short: this will not be pretty for Ms. Roberts or Ms. Magdee. As a result of Roberts' reckless and bumptious threat, many experienced litigators and First Amendment practitioners will offer Amy their aid. I'm one of them. Amy and Marc: if I can do anything, pro bono, to help you with this, including pursuing Magdee after you win your SLAPP motion to enforce an attorney fee judgment against her, or a malicious prosecution suit against Roberts and Magdee, let me know — I'm in. Other lawbloggers, I challenge you to step up.

Nor should this be pretty for Roberts or Magee. This is a loathsome, thuggish demand, uttered in service of a contemptible privilege to assault strangers, all as a result of our lamentable tolerance of degradation of our rights as Americans. Many people criticized Amy's story about this incident on the grounds that Thedala Magdee was "just doing her job" — that she's a low-paid TSA employee doing as she has been instructed, and that it's somehow objectionable to call her out. I submit that this mentality is part of what lets the Thedala Magees of the world grope us with impunity.

The TSA's approach to security theater is unjust. It's ineffective. Groping people without reasonable suspicion, let alone probable cause, ought not be tolerated. We only tolerate it because we have collectively allowed the government to frighten us out of our wits — for the most part, we have yielded to the TSA's demand for unquestioning compliance. We have created a safe space — not for rights, not for travel, but for people to get paid an hourly wage to poke strangers in the genitals, and to poke harder if they object. We shouldn't. We should make a scene, like Amy did. We should call out people who choose to make money following unjust orders to grope strangers. The Thedala Magees of the nation should be subject to "hatred, contempt, ridicule, or obloquy," should have their reputations damaged, and deserve to experience emotional distress. They are doing vile things to their fellow citizens for money. No convention of decency or courtesy requires us to pretend that is acceptable, even if the government tells them that it is.

It's ten years out from 9/11 next week, and our government's grasping quest for more power over our daily lives is not slowing. We're not going to get satisfaction through elections; most politicians either support the security state or are too spineless to challenge it. The only way we're going to get change is through action — through calling out wrong when we see it. Amy was wronged. She called it out. We should support her.

And if Thedala Magee and other TSA employees don't like it, I suggest they go pursue a job that doesn't involve sexual assault.

Other posts on the threat:

TechDirt
Crime and Federalism
Defending People
Advice Goddess
Amy Derby

There's a scene I love in Tombstone, an otherwise inconsistent movie. It's the infamous gunfight at the O.K. Corral. The Earp boys, backed by Doc Holiday, head to the O.K. Corral to enforce Tombstone's new weapons ban on the Clanton boys and their gang. They catch the Clantons unawares. For a moment, it looks as if the Earps, by walking tall and projecting confidence and authority, are going to be able to make the Clantons give up their guns and end the confrontation without violence.

Then Doc Holiday — played with a fey combination of indifference, amusement, and sociopathy by Val Kilmer — delivers a slow, saucy wink to Billy Clanton, played by Thomas Hayden Church. Billy's expression goes from surprise to incredulity to outrage:

Wyatt sees what's happening and says "Oh, shit," but it's too late — the enraged Billy pulls his gun, and then everybody's shooting at everyone else.

I love that scene because it so perfectly captures what representing clients can be like. Litigation is ridiculously expensive, hopelessly unpredictable, and does a piss-poor job at vindicating values like "justice" or "fairness" or "truth." Quite often, settlement is the rational business decision, the rational outcome from a financial perspective. Under our flawed system, that's true whether the client's cause is righteous or bogus. You can demand your day in court, but it's a huge risk if you're a plaintiff and both a risk and an almost certainly unrecoverable massive expense if you're a defendant.

So: clients often decide that it's rational to try to settle, whether in front of a mediator or through attorney negotiation. But even though clients can be rational, they always retain the lizard brain, the part that wants their day in court where they can talk about how the other side is made up of mendacious assholes, and how righteous/bogus the lawsuit is. The urge to lash out at the people who wronged them/maliciously sued them is powerful. In short, even in the midst of a settlement negotiation that is proceeding very well and likely to produce what under the circumstances will be a favorable result, they want to give the other side Doc Holiday's saucy wink.

Unfortunately, the other side is made up of people with lizard brains, too. The clients on the other side (and, for that matter, even the lawyers) may react to your client's saucy wink with Billy Clanton's irrational, suicidal outrage, and then the whole settlement goes to hell, and everyone stubbornly plods to a ruinously expensive trial in front of people who couldn't get out of jury duty. The saucy wink may come in the form of provocative language at a mediation session, or it may come in the form of a client insisting on putting gratuitous swipes into settlement communications.

The client has a perfect right to reject settlement and go to trial. I see my role as advising the client about that, not telling the client what to do. But this is a context in which I argue more forcefully with a client than I would otherwise. It's simply foolish to waste time and money on mediation or negotiation just to tank it by preying — wittingly or unwittingly — on the human foibles of the other side. I get that this mediation or negotiation may wind up being the closest thing the client has to a "day in court" where he gets to express his outrage at the situation. But it's a situation where self-indulgent venting is harmful, unless the point is to end negotiation. That's why try to insist on a shuttle diplomacy approach in mediation so that the client can vent to the mediator, not to the other side, and not be exposed to the other side's venting. That's also why I ask clients to write out everything they want to say in a settlement communication, as vividly as they like, and then delete it from the communication and sit there while they yell at me about it until they get it out of their system and agree to the firm, but non-gratuitous, letter. Indulging in the saucy wink — or reacting to it — enriches nobody but the hourly-paid lawyers, who are the coffin-makers of this particular O.K. Corral.

As a result, sometimes it seems like I spend a lot of my professional life getting yelled at. They don't teach you about that in law school.

(Note that some lawyers favor communicating "holy shit, my client is crazy" to the other side, in order to encourage a better settlement, on the theory that the other side will conclude they are not dealing with a rational actor and adjust their settlement tolerance accordingly. That's swell, if you can reliably depend upon the rationality of the other side. But often humans don't react by saying "the other guy is irrational, which is going to make trial much more expensive, so I'm going to improve my settlement offer." Rather, they say "You think you're irrational? I'll show you irrational!! WHARRRBARGLGL!)