Proving that every dollar you send to the federal government is a fucking joke, the Federal Bureau of Investigation's National Gang Intelligence Center devotes four pages of its annual report to the gang known as…

Juggalos.

I'm trying to figure out how to help two people facing SLAPP suits — one in Maine, one in Maryland. Both have contacted me, directly or indirectly, based on things we've written here.

In a super-awesome world, I'd connect them with experienced litigators with First Amendment experience admitted in those states willing to help them pro bono (neither has money).

In a still pretty awesome world, I'd find litigators admitted in those states who could act as local counsel while I do the work.

In a reasonably awesome world, I'd get references to people who might help.

FOR GREAT JUSTICE! Any help is much appreciated and contributes to fighting SLAPP suits nationwide.

Shoot me an email at ken at popehat dot com.

It's been a productive month from a work standpoint, but blogging has suffered.  Here are some of the things that I meant to write about, but couldn't in October 2011:

1) My dog Tanner ran off at the beginning of the month, and was on the loose for 48 hours in a busy downtown area of a mid-sized city.  Tanner is a lovable, goofy spaz.  How he didn't wind up as roadkill I still don't know.  I was going to write about the idiocy of strangers (the lady who caught him, called us to let us know that (I was 200 miles away and driving home), then left a large, athletic dog in a yard with a 30 inch fence he easily jumped), the kindness of strangers (another lady caught him and walked him a mile to our house), the power of social networking on the local level (he was returned to us because a Facebook post I wrote was widely circulated by friends and friends of friends), and the weird attachment some of us feel for other species.

This is Tanner:

2) I'm attending a zombie walk tomorrow, with Tanner.  The photo above shows his zombie costume last Halloween.

3) The photo I didn't get to take, because it would have been dangerous to do so in traffic: a large truck with the logo AMERICAN SAFETY being hauled from a wreck by an even larger truck.  Whoever hit the AMERICAN SAFETY truck scored a bull's eye, directly over the words AMERICAN SAFETY.

4) The photo I did get to take:

Feel free to caption it.

5) The wife passed out and broke her nose last Friday.  I have a nice photo, which I won't post, and a lot of choice thoughts about hospital protocol, which I've already written about. Why do doctors say "syncopal episode" to people who've had concussions when they mean "fainting"? Are they trying to justify their fancy eddications, or just to piss off the guy in the room who does know what "syncopal episode" means, because he didn't suffer a concussion from falling on concrete?

Is there anything you meant to write about this month, but couldn't get around to?  If so, feel free to write a digest version in the comments.

Remember Joseph Rakofsky?

He's the guy — technically a lawyer — who chose to represent a man accused of murder at trial even though he had never tried a case before. This led inevitably to a mistrial and to a judicial observation that Rakofsky's advocacy was below the standard one would expect of a defense lawyer at a murder trial. News organizations and bloggers commented unfavorably. Stung by criticism, Rakofsky sued a wide swath of media outlets and internet writers, asserting feckless theories of defamation. Some stood defiant; a cowardly few caved.

So, remember him? Well, anyway, he's back.

Eric Turkewitz reports that reports that Rakofsky — now representing himself — has filed a gigantic motion seeking a dog's breakfast of court orders. Rakofsky wants to amend his complaint to add 14 defendants, he wants an order deeming his complaint adequate in order to head off motions to dismiss (no, really), he wants his former lawyer sanctioned, and he may want a pony and a pat on the head. The motion is a freakish mess, of a quality I would normally associate with mid-range pro se work — not as bad as a homeless psychotic pro se, but not as good as a reasonably articulate and experienced pro se, like a tax protester or something.

Several people have noted that Rakofsky seeks to add a cause of action for "internet mobbing." Now, you might say that there is no such cause of action, whether under New York law or anywhere else. But Rakofsky is more clever than you. Rakofsky might take the lives of helpless men into his hands when he is manifestly not qualified to do so, but Rakofsky has a certain low craftiness. He knows that the din of insipid anti-bullying rhetoric is growing steadily louder, and that some people are willing to turn their concerns about bullied children into broad and unprincipled doctrines that allow anyone to lash out at critics. Rakofsky is encouraged in this mindset by the leaders of his state. New York state senators are advocating "cyberbullying" legislation, and are premising it on the assertion that we need to revisit our dusty old notions of freedom of speech and come around to the progressive viewpoint that expression is a privilege, not a right:

And yet, proponents of a more refined First Amendment argue that this freedom should be treated not as a right but as a privilege – a special entitlement granted by the state on a conditional basis that can be revoked if it is ever abused or maltreated. British Philosopher John Stuart Mill long argued that “the only purpose for which power can be rightfully exercised over any member of a civilized community, against his will, is to prevent harm from others.”76 His “harm principle” was articulated in an analogy by Oliver Wendell Holmes, Jr. (1841-1935), and still holds true today: “The right to swing my fist ends where the other man’s nose begins,” or, a person’s right to free speech ends when it severely infringes upon the safety and well-being of another.

In the case of cyberbullying, the perceived protections of free speech are exactly what enable harmful speech and cruel behavior on the Internet. It is the notion that people can post anything they want, regardless of the harm it might cause another person that has perpetuated, if not created, this cyberbullying culture.

You might say that this is mere jibber-jabber by a politician, not anything supported by law. But jibber-jabber can be terribly powerful and seductive when brought to bear on behalf of the nation's children, whether temporal or emotional. Why, even professionals nominally devoted to the vigorous defense of constitutional rights can be seduced right into insipid advocacy of hysterical and unprincipled tort remedies.

So: don't blame Rakofsky. He's just got his finger on the pulse. But a dilemma remains: what is the nature of this newly invented tort of internet mobbing? What are its elements? Well, with the encouragement and help of Scott Greenfield, I think I have come up with a set of elements worthy of a jury instruction:

INTERNET MOBBING: ESSENTIAL FACTUAL ELEMENTS

[Plaintiff] asserts that [Defendants] have committed the tort of internet mobbing and hurt [Plaintiff's] feelings really quite badly. The law recognizes that this is a shame. To establish that [Defendants] have committed the tort of internet mobbing, [Plaintiff] must prove the following:

1. That [Defendant] joined a group of three or more persons [including co-bloggers, commenters, and sock puppets];

2. That some member of the group made some use of the internet;

3. That the use of the internet including writing something about [Plaintiff];

4. That something could be described in one or more of the following ways:
a. Mean,
b. Hurtful,
c. Cruel,
d. Uncomfortably true,
e. Emotionally distressing,
f. Bad for business and/or branding or Google rank,
g. Just not kind;

5. That deep and progressive thinkers believe that the right of [Plaintiff] to be free of any such comment outweighs the right of [Defendant] to speak;

6. That at least one other member of the group committed an overt act endorsing or acknowledging the writing through a link, tweet, cross-post, thumbs up, +1, or lol;

7. That [Plaintiff] is, in at least one person's view, special, and thus deserving of the protection of the legal system from criticism or dissent.

Glad to be of help. There's a whole internet of butthurt potential clients out there. Better get cracking.

Muammar Kaddafy is dead, along with all of the variant spellings of his name.  Huzzah!

It's a wonderful moment, a triumph of the human spirit, when a tyrant meets a disgraceful end.  When Qaddafi was pulled out of a sewage pipe by his own people and shot through the head, it was Christmas in October, with Santa Claus giving all of the world's good boys and girls a pony, a stable, a stablehand, and an annuity sufficient to pay for the pony's upkeep for twenty years.  We can all agree on that.

Why couldn't we agree on that five years ago?

(Note: If you're squeamish, get off this train now. Why not read about about the delightful Marian Call?)

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This is a post about Marian Call, and especially about her lyrics and her new double album Something Fierce.  The second in a series, it follows this one: http://www.popehat.com/2011/10/05/shell-sing-for-you-part-1/. Take a moment to read that one if you'd like this one to make more sense!

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What would happen if, while submitting to a TSA search of some sort, you started reading from the owner's manual?

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

If you think "bad things would happen — perhaps very bad," then it appears you may be right. Via Amy Alkon, I encountered this diary at DailyKos about what happened to one woman — who says she is retired from the Air Force — when she decided to recite the Fourth Amendment during her search as a form of protest:

I'm speaking loud and clear so those around me can hear. Before I get to "unreasonable search" a man in an ill-fitting suit and a tie marches up to me. He tells me I was disrupting his operation. I have no idea what his position is. He stands in front of the metal detector–the first place they usually screen me. He tells me I am holding up the line. I drop my voice and tell him to go ahead and screen me. I'll take the pat down. But that's not what he wants. He wants me to shut up. I continue reading the Fourth Amendment.

The story culminates in the writer being arrested (however the TSA would characterize it, it was clearly an arrest) for disorderly conduct, cuffed, and confined in a cell. Eventually she is patted down, and the TSA succeeds in intimidating her into being silent during the procedure, citing a truly offensively preposterous rationale:

I agree to be searched and tell them I will read the Constitution in a normal voice while they do it. This is not good enough for Guy with a Tie. He says if I read the statement, I can't pay attention to what the frisking officer tells me. You know, how she is going to put her hands here and there and use the back of her hand to check my "sensitive areas". They tell me I need to listen to this, I kid you not, for my own safety. I say I will only read while she is not speaking. That won't do either, because I won't be concentrating on her instructions. Seriously, this was their rational explanation to me for continuing to violate my First and Fourth Amendment rights. I have to get home so I finally acquiesce.

Having forced the writer's compliance in a show of subservience to petty authority, the TSA cuts her loose after some confusing jibber-jabber about "taking a misdemeanor" and being contacted by federal agents.

Now, I couldn't confirm the diarist's story from another source. But it's entirely in keeping with the TSA's view of questioning of their authority, dissent in general, and dissent premised on the Fourth Amendment in particular, so I find it entirely credible.

It's interesting that the story is posted at DailyKos — a rather left-leaning site — and picked up by Amy — someone not likely to be described as left-leaning. It demonstrates that resistance to the TSA's unreasonable searches — and resistance to the government's expectation that we tolerate them without question — ought to be an issue that transcends left and right. Unfortunately, stories like these generate dismissive rhetoric equally from left and right: "flying is a privilege, not a right" "the government has the right to border and airport searches" "you are just making a scene for attention" "just shut up and let us get through security."

The mainstream of both political parties are mostly useless on this topic. Vigorous support for the Fourth Amendment and the principles underlying it has been marginalized for forty years. As I said before in discussing Amy Alkon's own case, we ought to make violating our rights an unpleasant and humiliating experience for the people who take money to do it. I applaud people brave enough to do so, in hopes that it will bring more public attention to the subject.

Millage. Millage. Dude.

I know it's been 17 years since I've been to Boston. But Boston is the biggest college town in the country. It's simply infested with college students. I can't think that its basic nature has changed much in 17 years.

You allegedly came up with a cunning plan to import marijuana into Boston. Now, I have no problem with that in principle. The War on Drugs is a ruinous and expensive failure. Half of America favors legalization. I have no moral or ethical or sociopolitical quarrel with your enterprise.

But . . . dude. Your plan was to drive from Los Angeles to San Francisco to buy marijuana, drive back from San Francisco to Los Angeles, and then bribe a TSA agent to help you smuggle the marijuana — over multiple plane flights — via American Airlines to Boston?

Dude.

Let me just mention a few things:

1. If you're in Los Angeles, you don't have to drive to San Francisco to buy marijuana.

2. Your plan involves trusting in the competence and reliability of a crooked TSA agent? Really?

3. Your business plan is to use post-9/11 commercial aviation to import marijuana in your luggage across the entire country into the nation's biggest college town? You know the nation's biggest college town already has some marijuana, right?

Honestly, sometimes the cops must feel like they're clubbing baby seals.

I'm sure you've heard of Righthaven, a copyright-troll Frankenstein's monster created in a boardroom rather than a laboratory. Righthaven's creators had dreams of making money by assigning newspapers' right to sue for alleged copyright infringement to a litigation entity. Righthaven came out swinging, suing bloggers left and right, in many cases for what was clearly fair-use quotations of articles.

Its efforts met in abject failure. In some instances it lost based on fair use defense; in other cases it lost when courts found that a newspaper couldn't confer standing to sue upon a litigation entity by transferring only the bare right to sue. The end result: Righthaven has lost repeatedly and is facing both sanctions and orders compelling it to pay the attorney fees and costs of its defendants. Frankenstein's monster is lumbering dumbly away.

But Frankenstein's monster was a pathetic and somewhat sympathetic figure, the occasional child-strangulation aside. Righthaven is not. Righthaven, now claiming to be close to bankruptcy, reaches for pathos but achieves only schadenfreude. In a recent Ninth Circuit "Urgent Motion" Righthaven begs the Circuit to stay the district court's order requiring it to pay the attorney fees and costs of a successful fair use defendant, complaining that it cannot secure even a $34,000 bond and that the defendant will soon seize its assets:

To date, Righthaven has been unable to secure a bond. The terms required by the bonding companies that Righthaven’s counsel has investigated and/or contacted are an impediment to meeting the district court’s stay requirement. The bonding companies are requiring what amounts to a full cash bond. In sum, the bonding companies ask for full cash payment, certain forms of collateral held by the company or irrevocable letters of credit be posted to obtain a bond in the amount requested. To date, Righthaven has been unable to satisfactorily meet these requirements in a manner acceptable to a bonding company. Due to the pending appeals and the stay of certain active litigation matters, Righthaven’s operating capital is being utilized to service its monthly operating expenses. As such, it is presently unable to allocate more than $34,000 toward the bond required by the district court to stay the Judgment pending appeal.
Absent posting the required bond or obtaining a stay of the Judgment pending appeal from this Court, Righthaven unquestionably face an imminent threat of irreparable harm through Hohen’s judgment enforcement efforts. As set forth in the motion for writ of execution, Hoehn is clearly seeking to seize and liquidate Righthaven’s intangible intellectual property assets. These assets include not only the copyrighted work at issue in this appeal, but the copyrighted works at issue in other appeals pending before this Court and those at issue in pending district court actions.

The technical, legal term for this request is JNOD, meaning "judgment notwithstanding obvious douchebaggery."

Righthaven's opponent in this is our friend Marc Randazza. One never knows which Randazza is going to show up to the party. Is it the entire legal brief about dicks Randazza? The ram has touched the wall Randazza? No, in this case, it's the literate Randazza, who picks up a mid-nineteenth-century American literature reference and beats the living shit out of Righthaven with it, having (as usual) more fun that one is supposed to as a lawyer. Read it and enjoy.

Things can't get much worse for Righthaven and its lawyers. Or . . . can they?

"We found out later on that, Constitutionally, you can not ban a type of music," said Ma. "Plus, I, like my opponents said, I didn't really know what was going on."

–Assemblywoman and Speaker Pro Tem Fiona Ma

Thirteen years ago, at Greenbrier High School in Evans, Georgia, senior Mike Cameron's smart mouth got him in trouble.

What did he do? Did he talk about drugs and God, like that "Bong Hits For Jesus" kid? Oh, no. Mike did something far worse than promoting demon weed or disrespecting Christ: he risked offending Greenbrier High's corporate sponsor. Mike wore a Pepsi shirt on Coke Day. It earned him a suspension.

"I know it sounds bad — `Child suspended for wearing Pepsi shirt on Coke Day,'" said Gloria Hamilton, principal of Greenbrier High School in Evans, about 130 miles east of Atlanta, the world headquarters of Coca-Cola. `'It really would have been acceptable if it had just been in- house, but we had the regional president here and people flew in from Atlanta to do us the honor of being resource speakers. These students knew we had guests." Friday's Coke in Education Day was part of Greenbrier's effort to win a $500 local contest run by the Coca-Cola Bottling Co. of Augusta and a national contest with a $10,000 prize.

Gloria Hamilton — whom a person less couth than I might term a Coke whore — explained that Mike's behavior disrupted the school's mutually beneficial relationship with Coca-Cola, including its innovative curriculum:

In addition to the school picture, Greenbrier officials invited a Coke marketing executive to address economics students, had chemistry students analyze the sugar content of Coke and used a Coca-Cola cake recipe in home economics.

Later, students in math class learned how to calculate the amount of life insurance would be necessary to provide for their family if they died of diabetes.

Anyway, that was 13 years ago. We were barbarians. Surely modern educators have rejected the creeping attempts by various corporations to use schools as advertising platforms to captive audiences?

Well, maybe not. At Catawba Valley Community College, student Marc Bechtol was suspended and banned from campus for questioning the college's cozy relationship with a financial services company called Higher One. Marc didn't like how CVCC was hard-selling Higher One's cards and services, and didn't like how he became an immediate target of hard-sell marketing pitches for more products and services as soon as he signed up for one of the cards CVCC was pushing. He criticized the relationship on the school's Facebook page, engaging in some mild but obvious satire. It got him kicked out. Fortunately for him, FIRE is on the case, and CVCC president Garrett D. Hinshaw is looking at the sort of bad publicity that tends to make colleges (reluctantly) do the right thing.

Modern education is too much driven by money. It makes administrators do stupid things. Neither Coca-Cola nor financial services companies like Higher One has students best interest at heart. They are in it to make money, as they should be — that's their role. Should they be allowed to market? Sure. Should public schools act as their marketing arm? No. Should protecting their message from criticism be a legitimate goal of the schools? No.

CVCC leadership is about to get a short, sharp, embarrassing lesson. They deserve it.

Edited to add: Higher One's PR team is out and about on this topic.

GREETINGS, CITIZENS!

It's an exciting time at YOUR Transportation Security Administration! At the start of America's second decade of Total War Against Terror, the TSA is once again at the tip of the spear of the fight to keep you safe. While other agencies plod along using old-fashioned methods and targets, the TSA recognizes that the key to security is innovation and flexibility. We have therefore been at the forefront of identifying new frontiers of threats arising from suspicious "medical devices" and the personal orifices of anti-state agitators. As a result of our vigilance and innovation, our Ministry of Communications reports that we are more popular and talked-about than ever.

But with that popularity comes a grave dilemma. As "the kids" would say, some people out there want to "take some of our mojo without asking." We understand — who wouldn't want to be associated with the brave men and women who, day after day, touch the bodies of unwilling strangers? But please be aware: the TSA's logos and other branding efforts are the sole property of the United States government. Even in these tough economic times, we've turned down numerous requests from businesses that would like to use the TSA logo to market to our employees and to an adoring public, from many hobbyist photography web sites to various collector's clubs.

Misusing the TSA's logo and branding is not just a civil violation, it's a betrayal of America and (like other trademark and copyright violations) subject of interest to the Department of Homeland Security.

That's why we are grateful to hear that Congressman Mike Rogers (R-AL-HERO) has introduced a bill making it a federal crime to misappropriate the TSA's branding:

Whoever, except with the written permission of the Assistant Secretary for Transportation Security (or the Director of the Federal Air Marshal Service for issues involving the Federal Air Marshal Service), knowingly uses the words ‘Transportation Security Administration’, ‘United States Transportation Security Administration’, ‘Federal Air Marshal Service’, ‘United States Federal Air Marshal Service’, ‘Federal Air Marshals’, the initials ‘T.S.A.’, ‘F.A.M.S.’, ‘F.A.M.’, or any colorable imitation of such words or initials, or the likeness of a Transportation Security Administration or Federal Air Marshal Service badge, logo, or insignia on any item of apparel, in connection with any advertisement, circular, book, pamphlet, software, or other publication, or with any play, motion picture, broadcast, telecast, or other production, in a matter that is reasonably calculated to convey the impression that the wearer of the item of apparel is acting pursuant to the legal authority of the Transportation Security Administration or Federal Air Marshal Service, or to convey the impression that such advertisement, circular, book, pamphlet, software, or other publication, or such play, motion picture, broadcast, telecast, or other production, is approved, endorsed, or authorized by the Transportation Security Administration or Federal Air Marshal Service;’ [shall be guilty of a crime punishable with up to one year in federal prison]

Now, don't panic, citizens! I know that some of you are worried about your "TSA: TOTALLY SUPER AWESOME!" fan t-shirts. No worries! The TSA knows that friendly and supportive fan-club materials don't fall under the statute, because they don't try to usurp the TSA's authority.

The TSA is aware that certain "citizens" — who value their "First Amendment rights" over the safety and security of the people of this great nation, including grandmothers, nuns, and children — sometimes employ shirts, buttons, and other materials unfairly criticizing the TSA from an extremist perspective. The TSA is aware of the protections presently extended in some circumstances by some interpretations of the Constitution. Anyone wearing a shirt with a TSA logo that is critical of the TSA can rest assured that TSA agents are well-trained to distinguish between things and parodies or pictures of things, as are our partners in the transportation industry. Such critics will be inconvenienced and intruded upon only temporarily at worst. Moreover, dissents can rest assured that the Department of Homeland Security and the TSA remain as tolerant as they have ever been.

So, thanks to Rep. Rogers! See you at the security lines, citizens. And remember the TSA motto: CITIZEN, OBEY.

Somebody didn't like Hubert Vidrine Jr. of Opelousas, Louisiana.

Normally Hubert could probably weather that. It's hard to make your way in life without someone deciding that they don't like you. It's even harder if you are in a risk group, for instance, a businessman like Hubert Vidrine Jr. or a snarky asshole with a blog like me.

But Hubert Vidrine Jr. had the very bad luck to be disliked by Keith Phillips. And Keith Phillips was an agent of the United States Government.

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Children.

The EU toy safety directive, agreed and implemented by Government, states that balloons must not be blown up by unsupervised children under the age of eight, in case they accidentally swallow them and choke.

As a practical matter this means that children aren't going to be allowed access to balloons at all.  European balloons must be sold only to trained, licensed mimes.

No balloon for you, kid! Those things things are dangerous! You could accidentally inhale one, and require a tracheotomy. Then you'd be a mute! Just like me.

Also banned are those fwippy things that children blow into and then they roll out like a, you know.  Those things are banned for children under 14 because they can poke out eyes.  As a practical matter, this means they're banned period.  Europeans above the age of fourteen have better things to do with their time: things like alcohol, heroin, sodomy, wrist-slitting, writing regulations, and pogroms.

It would be interesting to know how many European children have died or been seriously maimed by unlicensed balloons, or lost eyes from rogue fwippy things roll out like a, you know.  The Union doesn't say.  A few years ago we engaged in a scientific study of a similar threat, based on efforts by American nannies to place warning labels on hot dogs.

We concluded that your child's odds of choking to death on a hot dog are, at a maximum, one in 181,230.  And possibly much lower.

Thanks to the nannies of the European Union, the odds that a given child will grow up to be a coddled, emotionally stunted dweeb are getting higher every day.