A Statement of Support in the Event of Legal Threats Or Lawsuits

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306 Responses

  1. John Ammon says:

    As an avid attendee of Sci-Fi Fantasy conventions and a 6+ year organizer of one, I can say that most conventions are setup in the worst organizational structure possible and many people who run them are ill-qualified to run such events. Which often leads to these kind of scenarios. Security teams in general are often cobbled together from the worst lot that fandom has to offer, it's sad but true, there's often some gems in the mix, but the people in charge of security are quite often big jerks, for lack of a better term :\

    Our convention has converted from a committee format to a business format over the last couple of years and it's been great, when you hire people for their qualifications and expertise, you end up with a much more trustworthy and competent work force, and these kinds of issues happen less and are often handled in a much better manner.

    But as always, we'd all be fine if we followed Whedon's Law: "Don't be a dick"

  2. SassQueen says:

    In the words of Wayne and Garth: scha-wing!

  3. David Aubke says:

    Is this a free speech issue? Not that those are the only sorts of cases you're allowed to take but it seems like a safe assumption when the Signal is involved.

    It seems like a straight defamation case. "That man sexually harassed me" isn't a statement of opinion or hyperbole.

  4. David Aubke says:

    @John Ammon
    I think that's Wheaton's Law

  5. ZK says:

    @David Aubke: Presumably it would be a free-speech issue in Ms. Ellis's case (assuming the name she gave is factually correct).

  6. Ken White says:

    @David:

    Is this a free speech issue? Not that those are the only sorts of cases you're allowed to take but it seems like a safe assumption when the Signal is involved.

    It seems like a straight defamation case. "That man sexually harassed me" isn't a statement of opinion or hyperbole.

    One of the most constant themes of this blog is that the legal system is broken and that threats of lawsuits, or lawsuits, premised on speech chill expression without regard to merit.

    That's why I routinely light the Popehat signal even in cases where, if you believe everything the plaintiff says, the speech might not be protected by the First Amendment.

    Speech is best protected when the defense has vigorous and effective representation, and where plaintiffs are unable to silence or retaliate against speech merely by the threat of abusing the system to wage expensive and time-consuming legal warfare.

    Could some accusation or discussion of harassment somewhere go beyond the protection of the First Amendment? Yes. If anyone asserts that this one did, they will have to face qualified and vigorous First Amendment attorneys who will give no quarter.

  7. John Ammon says:

    @David Aubke – You're right… I guess I had Joss on the brainmeats. -1 Internets for me :(

  8. Ron Newman says:

    David: the last Popehat Signal was for a defamation lawsuit against me (and another named defendant, and 100 John and Jane Does). Thanks to help from Popehat, the Berkman Center for Internet and Society at Harvard Law School, and others, we made the plaintiff back down and dismiss his case with prejudice after only 6 weeks.

  9. David Aubke says:

    Ah.. the naming of the party involved.

    I still feel up in the air about it. If the charge of sexual harassment turned out to be false, would Ms. Ellis's comment be covered under free speech? Are the charges a matter of public record which Ms. Ellis was just reporting on or did she dish some confidential information?

  10. Ken White says:

    I owe you a post about that, Ron.

  11. Ken White says:

    @David: I'm not going to discuss the legal specifics here. If threats are made, they will be met.

  12. Bill says:

    I just wanted to say something, however silly, before this thread gets closed – I can already feel the tremor in the force or glitch in the matrix or whatever ;-)

  13. David Aubke says:

    @Ken,
    Thanks.

    Again, I'm not suggesting you shouldn't take the case, only that I didn't fully understand your reasons for doing so and for publicizing your decision.

    @Ron,
    I saw the posts here about that case. My interpretation of that and many other such cases was that the plaintiff had incorrectly charged defamation. That regardless of the content of the comments in question, Ken largely considered them to be protected speech. I do remember him stating that some of the comments may have risen to defamation.

    In this case, if the charge turned out to be false it looks like clear-cut defamation to me.

  14. delurking says:

    Get it right, dammit!
    It's "GOVERN yourself accordingly".
    You look like an amateur.

  15. delurking says:

    Actually, the questions raised in the thread are interesting to me. "Sexual Harassment" must have both legal and colloquial meanings. My employer certainly defines it, and proscribes it in the workplace, in a way that the government cannot.

    So, David's comment that "if the charge turned out to be false it looks like clear-cut defamation to me" seems off-base. Ultimately, if a woman feels she was sexually harassed by someone, I would think she has a first amendment right to say she felt sexually harassed, even if a reasonable person in her place would not have felt sexually harassed.

    I didn't see any factual statements in the posts that could be challenged as false and defamatory (unless you think that this counts: "During the incident, the person I reported said, 'Gosh, you’re lovely when you’re angry.' "; if the person never said it).

    Ken?

  16. Ken White says:

    Ken previously said, apparently not clearly enough:

    I'm not going to discuss the legal specifics here.

  17. @John Ammon wrote:

    Security teams in general are often cobbled together from the worst lot that fandom has to offer, it's sad but true

    As a long-time security staff, I'll second that. One of our rules of thumb is that people likely to volunteer for security are usually those you least want.

    Wheaton's Law is cited at least as often.

  18. delurking says:

    Yeah, I was just fuzzy on the boundaries of "legal specifics". Sorry.

  19. David Aubke says:

    @delurking,
    I think that's another way of trying to define the difference between opinion and fact. You're saying that "He sexually harassed me" could be interpreted as both a statement of opinion and of fact. I was indeed working from the assumption that "sexual harassment" is a term that refers to a specific legal offense but don't know enough about the subject to defend that position for very long.

  20. John Ammon says:

    @Steve Simmons – I've often said the exact same thing at our Staff meetings :P If someone is chomping at the bit to volunteer for security… they're probably not the right person :\

  21. Malc says:

    I am also not a fan of naming names, but I think any reasonable person has to acknowledge that there are situations where it is the best approach for the people involved — and critically, even if I might come to a different conclusion as to what constitutes "best", I don't get to set anyone else's agenda or priorities.

    The biggest risk, in my view, to publicly naming names is that it facilitates a shift in emphasis: if A does something objectionable to B, and C names A, then A is handed a a tool to derail the discussion from A's malfeasance to be all about how oppressed A is.

    A similar effect is ongoing in the Zimmerman trial in Florida, although with obviously entirely different circumstances. Instead of the discussion being about whether Zimmerman acted reasonably in confronting Martin (obviously, he didn't), the discussion has veered into whether, having created a foolish situation, Zimmerman was reasonable in his actions after that.

    Back to this situation: if there is a window before some whining starts, I suggest that anyone who doesn't know what "A" did go find out, so when he starts whinging about how oppressed he is, we already know… .where Ms Streisand's house is!

  22. nlp says:

    The person they named has been abruptly terminated by his employer. Apparently, although this editor was known throughout the industry for this behavior, this was the first formal complaint the company had ever received. They have since said that they would be willing to listen to women who had been harassed on previous occasions.

  23. Kevin says:

    @Steve Simmons:

    One of our rules of thumb is that people likely to volunteer for security are usually those you least want.

    This phenomenon is not at all limited to scifi/fantasy convention security.

  24. delurking says:

    David, my position is stronger. I certainly hope that "He sexually harassed me" can never be taken as a statement of fact for defamation law purposes. In order for it to be defamatory, I would hope that it has to be "He sexually harassed me by doing X, Y, and Z", where he did not actually do X, Y, and Z; and X, Y, and Z are behaviors that actually would harm his reputation.

  25. Tarrou says:

    So……….let me see if I have this straight.

    Woman A attends woman B's party.

    Woman A subsequently claims to have been sexually harassed.

    Woman B identifies the alleged harasser.

    Ken would like the world to know that while he will not discuss the merits of the case, he is firmly on the side of woman B, and will back her legally with his mighty Popehat signal, should anyone do anything aimed at her.

    Do I have that correct? If so, may I ask one more question? Is there any evidence at all which could sway Ken from this position of refusing to consider the facts of the case before taking sides in it?

    At the risk of sounding trite, and using PUA/MRA/MGTOW terminology, the reflexive leap to defend a woman without investigating the case, and before anyone has actually threatened her with anything, is pretty much the definition of "white knighting".

    It may well be that this woman was harassed. If that is the case, I, and every other reasonable man, condemn that. And if it comes to pass that the accused threatens frivolous lawsuits, then I condemn that, and support both Ken and his Popehat symbol coming to her defense. But to do so before an investigation is complete and in the absence of any threats? Come now.

  26. Dr Duck says:

    @John Ammon -

    Heck, the same is true of politicians: if they want the job they probably shouldn't have it.

  27. Ryan says:

    @Ken.

    Blog posts like this – and your response to David in the comments – are why I read PopeHat. I mentioned once in an earlier thread how I work in law enforcement, and often we tend to form very negative views of certain types of litigation and/or defense lawyers who seem to love to exploit the broken legal system. It is always refreshing to be reminded how wrong those views are when taken out of the context of specific individuals with a known track record.

    Keep fighting the good fight.

  28. nlp says:

    Tarrou, here is a link to one of the blogs that published Ms Matthesen's article. As you can see, she did not complain subsequently. Instead, one of the hosts saw what happened and came over immediately. Also, apparently this particular person has a long history of this behavior and has been rebuked about it. http://www.jimchines.com/2013/06/how-to-report-sexual-harassment-by-elise-matthesen/

  29. Dan Weber says:

    I'm wary about naming names. But you know what? It will be interesting to see if doing it once helps. Let's see what happens with this joker.

    The Popehat Symbol does not save someone who engages in libel [et al] from facing the music. It merely provides legal representation. If the person accused of libel is innocent, the Symbol stops them from being silenced by legal threat, and possibly provides remediation depending on SLAPP statutes. In the very worst case, where the person accused of libel is actually guilty, it merely covers their legal costs, which should not be punitive anyway.

    Even the guilty deserve competent legal representation.

    (None of the above is meant to paint any picture of this specific situation.)

  30. Felicia Herman says:

    It's not a small world, but it is folded funny. Elise was my birth coach for both of my daughters, as Joel wasn't up for the responsibility.

  31. ULTRAGOTHA says:

    Tarrou, read the entire thread on Jim C. Hines's blog. It's been alleged by dozens of people over the last decade that this man has been harassing at cons. Three years ago, Jim C. Hines spoke to him, and also posted a list of who to contact at major SF publishers to report harrassing employees.

    Several reports were made to Tor in the past; but evidently, according to what Ms. Matthesen was told, none of those reports were *formal* so they weren't acted on.

    Ms. Matthesen's evidently has been. According to a series of tweets this morning from Patrick Nielsen Hayden who is a senior editor at Tor, Frenkel no longer works for Tor/Forge. Dan Weber, that's one thing that happend to 'this joker'.

    You'll see on Hines's blog that three years ago, after a similar incident by the same person, several people in SF, including Jim C. Hines, made the decision to *not* name names. This time many did name him.

  32. Grifter says:

    @nlp:

    As someone who often gets annoyed at the way certain elements of this discussion are phrased, I found that post a refreshing (if unfortunate that it was even bloody necessary) one.

    Is it appropriate to ask if anyone has a link or whatnot to what the offending behavior (or what others experienced previously) actually was? From the way it's described, it seems like it was probably pretty bad. Apparently there was even an informal word for it "[lastname]ed".

    It would, however, lend some helpful context to any discussion (if, that is, Ken is allowing discussion on this in here).

    I tried looking myself, but one of the first few links I found was…distasteful in its manner of questioning the events (it was an author's blog, no less, though in the more F than SF, so I've no idea who it is or if I should know), and I lost interest in wading through that particular sort of muck.

  33. Grifter says:

    (Huh, well, the one I saw has a wikipedia page, so he's at least legit enough for that, though I have no idea and no interest in finding out how par for his course it was)

  34. ULTRAGOTHA says:

    Grifter, neither Ms. Matthesen nor any of the witnesses has publically stated what happened to my knowledge.

    I think details would just remove the focus from Ms. Matthesen's initial blog post(s). She was concentrating on how to report if harassment happened to you. Not what happened to her to cause the report.

    From what I've read, "[lastname]ed" may refer more to the onerousness of working with the guy–not necessarily to being harassed.

  35. Ken White says:

    I find it utterly impossible to take seriously anyone who uses "white knighting" non-ironically. But then, I had already decided that I would not take Tarrou seriously. I could explain to Tarrou the difference between (1) reaching a conclusion about what happened, and (2) reaching a conclusion that any threats of litigation or litigation should be met by competent legal counsel ready vigorously to defend the First Amendment, but since I've already articulated that, and Tarrou doesn't care, I suspect it would be a waste of time.

    It's not clear to me why you are still here, Tarrou. I'm a mangina, a pink-shirt, a white-knight, a feminazi-sympathizer. What possible benefit can you have from remaining?

  36. Dan Weber says:

    Reading up on this case, I suspect ("on information and belief") what happened was that there was a reporting system in place, but that it allowed "since this is the first offence, you can get off with a warning" exceptions at multiple levels.

    So someone was allowed to do a whole bunch of stuff in a bunch of different places, and no one on top could see all of it, since this was the first formal complaint to the employer. Even doing something twice at one place would only get it pushed up one level based on that rule.

    I'd suggest to the con people: if you have a reporting system, encourage people to report things all the way. The people at the top can apply shelter for the repentant and/or falsely accused, so you don't need to worry about that.

  37. John Ammon says:

    Well, I caught up with the whole story and I can say that it reminds me of similar events in my own geographical area of fandom, it's important to weed out these festering boils from our community, because these kind of people don't get better, they don't know how to fix their behavior, best to banish them forever and be done with it.

  38. Grifter says:

    @ULTRAGOTHA:

    Well, I at least sort-of agree with that. And it was a fine blog post. But I think it's a bit naive to think that this isn't ALSO going to become a discussion of what happened as a result. It's already happening; especially since the person was named, shamed, and fired (which seems to have been appropriate, lack of details notwithstanding).

    It's 2 separate stories now, 2 different topics of discussion.

  39. Grifter says:

    @Dan Weber:

    It seemed to me that it wasn't the "first offense" card as much as it was the "nobody wants to go on record" card; nobody was willing to have their name attached formally (though I question whether the repercussions of not doing so were explained).

    Conventions, workplaces, etc. are NOT the state, however, as an element of justice in general it's preferable to be able to face ones accusers, innit? Which CAN cause problems, but it seems to me that, much like the presumption of innocence, we can't possibly get rid of all possible variables.

  40. I have to admit I am a little confused here. I am a strong supporter of free speech, but also of the presumption of innocence. Accusing someone publicly of sexual harassment can cause real harm; like paedophilia, it's a hot-button issue to which family, friends and employers may react quickly and decisively. One may defend it as free speech on the grounds that definitions of sexual harassment differ (e.g. in law versus in corporate guidelines as pointed out above), but the accusation nonetheless has real meaning and can – and in this case seemingly has – led to serious consequences for the accused without any recourse to the presumption of innocence. It's reported above that the accused has lost his job. If he's innocent, he certainly has grounds for a lawsuit against his accusers and I hope that Popehat will not chill him away from that with its threats.

  41. jimmythefly says:

    @Tarrou

    I don't think you have it quite straight. You are conflating the legal issue of sexual harassment with the legal issue of talking about the event.

    Whether or not the event occurred is separate from whether or not talking about it is protected speech.

    Sometimes the events might be intertwined because of the way truth is a defense against claims of defamation.

    But the events do not necessarily need to be entwined with the speech about them, because showing that the statements are within the bounds of non-defamatory free speech is also a defense.

    Happy to be corrected about this, but that's my understanding.

  42. Dan Weber says:

    the accusation nonetheless has real meaning and can – and in this case seemingly has – led to serious consequences for the accused without any recourse to the presumption of innocence

    We don't know that. I mean, we don't know that he wasn't given the presumption of innocence by his employer.

    They aren't an open court and so we don't all get to second-guess. We don't get to second-guess whether the behavior was "real" harassment or not, either. Oh well.

    (Personally, I bet he admitted to the behavior, since it took place in front of many witnesses, but that's not really relevant for now.)

    I share your reservations about false accusations, and the acceptable number of Type I vs Type II errors is a policy decision without any clear answer. Maybe shaming this one guy will shape up enough of the rest of the malcontents so we can rely on private reporting and the associated checks-and-balances. Here's hoping.

  43. Beth says:

    before anyone has actually threatened her with anything

    But to do so before an investigation is complete and in the absence of any threats?

    Fear of defamation lawsuits is one of the many things that discourages people from naming names. Ken is setting a precedent of support for those who are fearful of publicly identifying the accused.

    he certainly has grounds for a lawsuit against his accusers and I hope that Popehat will not chill him away from that with its threats

    "My opponent may have access to competent legal representation" is not what I would call "chilling."

  44. ULTRAGOTHA says:

    Jonathan

    but the accusation nonetheless has real meaning and can – and in this case seemingly has – led to serious consequences for the accused without any recourse to the presumption of innocence. It's reported above that the accused has lost his job. If he's innocent, he certainly has grounds for a lawsuit against his accusers and I hope that Popehat will not chill him away from that with its threats.

    You’ve no basis for your presumption that Tor/Forge/Macmillan didn’t give Frenkel recourse to the presumption of innocence. They’re a very large employer. They have professional standards for this sort of thing in place.

    Patrick Nielsen Hayden reported that he no longer works for Tor/Forge/ Macmillan. There’s no indication that I have yet seen to show whether he was fired, resigned before he could be fired, resigned in a huff or resigned for totally unrelated reasons.

    I don’t know that he has grounds for a successful lawsuit even if he is innocent (which, from reading the SFF blogosphere since Ms. Matthesen’s blog postings, looks doubtful). Ms. Matthesen never named him. She merely wrote a blog post about how to report harassment to a con and an employer if one was harassed at a con. Ms. Ellis accurately stated the name of the man Ms. Matthesen reported.

    There were reportedly multiple witnesses at the launch party at Wiscon. There have reportedly been multiple reports, though evidently not “formal”, to Tor/Forge/ Macmillan over the last decade. Several people have stated on their blogs the warnings they’ve gotten over the years about the man, and the times they’ve spoken to him regarding his behavior. The man already had a reputation. I suppose it could all be a vast conspiracy. Somehow I doubt it.

  45. James Pollock says:

    On the one hand, I agree most assiduously that people who have endured battery should report to both the con organization AND the police, and people who have been harrassed should report it to the con organization. I also believe that con organizations should share information about reports.
    On the other hand, third parties who tell the stories, with or without the assistance or even consent of the original reporters, DO run the risk of defaming innocent people. I believe (<– note the reference to faith here) that false reports (where no objectionable act actually occurred) to be very rare and mistaken reports (where the act happened, but is incorrectly ascribed to X when actually committed to Y) are very rare, I would guess that as awareness increases and tolerance decreases, and the number of reports increases and effective action taken as a result increases, that the number of false or mistaken reports could, and probably will, rise.
    One of the things that keeps false reporting low is the fact that there was no benefit from making a false report, as few significant penalties were handed out whether justified or not. As that injustice is corrected, however, now there IS a result of making a report.

    To clarify (because this is apparently not obvious enough) warning that ramping up enforcement that was previously lacking carries the risk of ensnaring people who are not actually guilty along with those who are, IS NOT the same thing as suggesting that A) the problem isn't there, B) it shouldn't be addressed, or C) increasing enforcement is the wrong way to address it. It is what it is… a warning that in pursuing enforcement that was too long not present, there exists a risk of over-correction in a number of different ways.

    No sympathy at all for the guilty. None. But what recourse does someone falsely labeled have? Didn't we discuss that theme in the Richard Jewell case?

  46. James Pollock says:

    ""My opponent may have access to competent legal representation" is not what I would call "chilling.""
    No, but that's not quite what we have here. It's "My opponent may have FREE competent legal representation while I have to pay for mine."
    We correct for "my opponent can afford the cost of defending a suit but I can't afford the cost of prosecuting it" in some fields of law (notably criminal law, but it's also prevalent in personal injury cases), but defamation claims is not one of them.

  47. Nicholas Weaver says:

    Also, FYI, Mary Robinette (author of the "Twelve Rabid Weasels" open letter) confirms that she helped someone else report the alleged harasser 3 years ago, but it was an informal complaint.

    I think the evidence shows so far that the statement that "Anonymous person was a harasser" is almost certainly not defamatory, but rather describing a continued and persistent pattern of behavior.

  48. Ken White says:

    No, but that's not quite what we have here. It's "My opponent may have FREE competent legal representation while I have to pay for mine."

    You're ignoring contingency fees.

    Sleazy lawyers can take cases on a contingency, half-ass it, put very little work in, and pay almost nothing out of pocket, knowing that many defendants will pay money to settle as a business decision, because (1) the defense of even a half-assed case is ruinously expensive, and (2) even if the defendant wins, the chance of recovering attorney fees is very small in most cases.

  49. James Pollock says:

    "I don’t know that he has grounds for a successful lawsuit even if he is innocent"
    Treating this as an exam question:
    First, if there's an employment contract, then the terms of that contract determine whether termination prior to the end of the contract's term is actionable or not.
    If there's NOT an employment contract, then there is no cause of action against the employer. The employer may cite the furor and bad publicity over continued employment, whether that furor is deserved or not, as grounds for rightful termination.
    There may or may not be grounds against the accuser and the publisher of the accusation. If the accusation is true, then truth is an absolute defense to all defamation claims. If the accusation is false, and the other elements of defamation can be made out (loss of employment would meet the "actual damages" element) then there would be a cause of action.
    Now, I can't apply the facts of the case to the outline of the law, because A) I don't know if the accusation is true or not (I don't even know if the accusation IS) and B) I don't know the terms of the contract, if one existed.
    Obviously, the person concerned would be able to receive an accurate assessment of the likelihood of success on the legal merits by consulting an attorney actually licensed to practice in that jurisdiction, which I am not.
    Well, profs, how'd I do? (I know, not my best work, as I can't rattle off the 6 elements of defamation off the top of my head any more. Also, I skipped over the fact that accusations of sexual immorality are "per se" defamatory, which means that 2 of the elements are presumed and do not have to be proven by plaintiff.)

  50. James Pollock says:

    "You're ignoring contingency fees."
    Certainly not. I referred specifically to PI cases, which is where the vast majority of contingent fees are taken. Sleazy lawyers doing half-assed work is a problem for the bar association to deal with. (Here we ALSO have a problem of poor reporting and spotty prior enforcement).

  51. @Beth: I quote from Ken, "they will have to face qualified and vigorous First Amendment attorneys who will give no quarter." That's chilling, especially when, as @James Pollock points out, one side gets free lawyering while the other is left to pay for their own.

    I'm sure there's more to this than meets the eye, but the appearance is that Ken is offering help in defending against a defamation suit that has been neither threatened nor brought, on the grounds that accusing someone publicly of sexual harassment is free speech. IANAL and I don't live in the USA… but I disagree and I hope the courts would too.

    @Ultragotha: I know nothing about the innocence or (in your case presumed) guilt of the accused in this case. But as you say, he was named – and whoever named him is responsible for that. If he's not proven guilty, he should have recourse to a defamation suit for real damages; then, in civil court, his public accusers can try to prove the truth of their accusations on the balance of evidence instead of beyond a reasonable doubt.

    @Dan Weber: "Maybe shaming this one guy will shape up enough of the rest of the malcontents so we can rely on private reporting and the associated checks-and-balances. Here's hoping." Lovely sentiment, but you seem to suggest that it's OK to falsely accuse this one guy in order to prevent others from committing the same crime. Really?

  52. Tom says:

    The paste-eating is strong in this thread.

  53. James Pollock says:

    To clarify… I do not know the details of this particular incident sequence to make any kind of judgment as to whether or not the dude's guilty (hearsay evidence strongly supports the belief that he is, and that's the way I would guess, but I'm not going to go consult primary sources to examine it. If, as I assume, he IS guilty, then he deserves what he has coming to him.
    Rather I speak of the next guy, or the one after that, however far down the line we go until a case of false or mistaken accusation arises. WHEN, not if, it does, will we recognize it?

  54. Dan Weber says:

    JG: That statement is operating under the thesis that he is guilty. I would not feel comfortable suggesting that a known- or even likely-innocent person take a fall just to put other people on notice.

    I've posted many times, just on this page, my concerns about Type I errors. Others have concerns about Type II errors. There is no right answer there.

  55. Nicholas Weaver says:

    But what recourse does someone falsely labeled have?

    Why, quite simply, MORE SPEECH!!!!. Of course, the problem is that a lot more cases are coming out of the woodwork about how the accused really does seem to be a serial dirtbag…

  56. Nicholas Weaver says:

    Remember, thanks to contingency fee agreements, its quite common for the plaintiff to get free lawyering. This is unavailable to the defense, since only rarely does US law enable "plaintiff pays when plaintiff loses".

    Only if the possible defendant knows he has pro bono assistance do they actually end up on an equal footing, otherwise the plaintiff always has an advantage here.

    So don't weep for the poor alleged serial harasser: if his case would have even a reasonable hope of winning, he'll still be able to get any one of a hundred Saul Goodmans to act on his behalf.

  57. James Pollock says:

    "Why, quite simply, MORE SPEECH!!!!. Of course, the problem is that a lot more cases are coming out of the woodwork about how the accused really does seem to be a serial dirtbag…"

    Right. So when the innocent guy (did you miss the "innocent" part) gets tarred up in an accusation, and can't get anyone to listen to his "No, I didn't do that" because so many other guys who were accused are actually guilty, then what?

    The problem is not so easily dismissed. I don't think anybody has a problem with "serial dirtbags" being labeled as "serial dirtbags". The question is, how do you recover if you're falsely labeled as a "serial dirtbag"? More speech [!!!!!!] was shown to be ineffective in other contexts (Richard Jewell, the McMartin preschool case, and countless others)

  58. Nicholas Weaver says:

    James: IF he's innocent, then let him sue. Thanks to contingency fee agreements, he is on an equal footing as his accusers are!. While he's at it, if he's actually innocent, he should also sue for wrongful termination. Again, there are tons of lawyers who happily take such suits on contingency.

    Richard Jewel sued, and won.

    Ken's Popehat signal is hardly chilling Mr accused serial harasser's ability to sue, since its not giving an advantage to the defense but simply ensuring parity.

  59. David Aubke says:

    I've been pondering this because, like @Jonathan Gladstone, I'm still a little stumped as to the position being taken here. Here's what I've got so far:

    1. Ms. Matthesen has not brought suit against anyone. She reported harassment to private 'authorities'. Ken isn't assisting her in pursuing a case against anyone and as such, hasn't taken sides regarding the claims made.

    2. Being one of the first people in the world to take the course Ms. Mattheson has taken – which, regardless of the merits of her claim, most would agree is a path that desperately needs more travel – is an extraordinarily difficult task. I think Ken just wants to be sure that, if she's turned back, it will have been for a damned good reason and not because she couldn't afford the journey.

  60. Amiable Dorsai says:

    @ Steve Simmons

    "One of our rules of thumb is that people likely to volunteer for security are usually those you least want."

    Yes, much better to use draftees.

  61. Bill says:

    So it's at 61 already? I've never thought about posting "First" or How cool it would be, but if I can be the first poster on a Popehat creeper thread, It'd be something to brag about.

  62. EAB says:

    The problem is not so easily dismissed. I don't think anybody has a problem with "serial dirtbags" being labeled as "serial dirtbags".

    Here's what's been bothering me through this thread and the previous one: I don't really feel like a lot of you have understood the idea that if you are harassed, it's more likely than not that nothing whatsoever will happen to your harasser, and he will merrily keep on being a serial dirtbag to you and/or other people.

    Suppose I find myself alone in an elevator with another person who decides to shove me in the corner, kiss, and grope me — something we all agree is actually criminal sexual assault. I get off the elevator, and what do I do to stop him treating me or anyone else this way?

    Nothing, is what I do. If I go to the police, there is nothing they can do. There are no witnesses or physical evidence, so it's his word against mine. They will not arrest him or prosecute him. Unless he is dumb enough to push me me so hard that he leaves physical bruises, he's not going to face legal repercussions. There's no evidence, it's his word against mine, blah blah blah he walks away to creep another day.

    So how am I supposed to warn other people about this guy? How am I supposed to communicate to other people that you maybe do not want to date or even ride elevators with this man? Am I just supposed to sit at home with the knowledge that he will most likely continue to assault other girls in elevators, and do nothing about it? After all, James Pollock has already informed us that failing to speak up makes me partially responsible for any future assaults. If I speak up and the police don't do anything about it, what precisely am I supposed to do?

    I understand why law enforcement would judge that the situation doesn't merit pursue charges. I don't even fault them for it — reasonable doubt is what it is, and this situation certainly is a classic example. But what I want to know is how we stop Elevator Groper Man, and under what circumstances Elevator Groper Man can threaten me with a libel lawsuit.

    FYI, Elevator Groper Man is absolutely not a made-up example. That's a real thing that happened to me, and that happens to women every day. I want to have a conversation about how we can slap Elevator Groper Man with some sort of penalties that convince him to STOP GROPING, whether those penalties are legal or social. When Elevator Groper Man walks away scott-free 95% of the time, I'd like to maybe work on fixing that first.

  63. Tarrou says:

    @ Jimmythefly

    I don't think I conflated those two. Unless I mistake the OP, Ken was offering support for the woman who published the name of the accused, not the accuser. I assume that his offer of legal help was in regard to a possible defamation case against her.

    @ Ken,

    I'm here because you have a good blog, I enjoy both your, your fellow bloggers, and even occasionally the commentariat's take on things. I happen to disagree with you on some portions of some issues, and I take me to the comments to address these. I assume you don't have comments only so people can agree with you?

    You seem to have conjured a whole host of opinions I haven't given, insults never traded, and positions I haven't endorsed. In this case, it's not even so much what you are doing as when and how you are doing it. We agree as to the appropriateness of sexual harassment, I think. And defamation lawsuits intended to chill accusations of sexual harassment should meet with legal pushback. But you haven't got a threat yet. And while some commenters seem perfectly happy to take the internet's word that some dude somewhere is a scumbag, I am not quite that blithe. Especially when the person touting the case won't discuss it.

    You think clearly and forthrightly about many subjects, but it seems to me (and it may be only my opposing biases) that this is less so on the issue of gender and sex. Of course, you are perfectly within all of your rights to offer legal help to anyone you like, it only strikes me as odd that the person to whom you are offering it doesn't actually need it yet. And may never (hopefully).

    In the past, you've noted that your posts on sexual harassment and the like bring out the crazies. If I may note, your own tone is not the same when you post on the topic. There seems (to me at least) to be less humor, less logical rigor, more hostility.

    In any case, this blog is your lawn, if you prefer not to be challenged, I can oblige.

  64. James Pollock says:

    "After all, James Pollock has already informed us that failing to speak up makes me partially responsible for any future assaults. If I speak up and the police don't do anything about it, what precisely am I supposed to do?"
    Since you invoke my name and all.
    If you speak up, you've done your part. If you speak up, and the process works (surprise, Mr. Elevator Groper Man! There's surveillance in that elevator!) then you've contributed to fixing the problem, at least as far as that particular dirtbag. We have to count on several other people doing their part (victim, witness(es), police, prosecutor, jury, judge, department of corrections).
    If you speak up, and the police fail to take action, then you've done your part, and the police have failed theirs. I'll join you in condemning their failure. If you speak up, and the police investigate, and the prosecutor fails to press the case, the same. Ditto for when the jury doesn't convict, the judge sentences too leniently, or the DOC fails to supervise him properly. But if the people directly effected don't speak up, the police, the prosecutor, and the others haven't failed, because they haven't been given anything to do.

    "When Elevator Groper Man walks away scott-free 95% of the time, I'd like to maybe work on fixing that first."
    The first step: report it.

    Some other steps would be pushing police, prosecutors, and so on, to take it seriously, advocating for surveillance in elevators so that the "no evidence" problem goes away (this one also creates the option of going to civil court, taking the prosecute/don't prosecute decision away from people other than the victim), teaching vulnerable populations to use physical force to defend themselves effectively when appropriate.

    All of those are good. The dial on the response-o-meter has been set too low for too long. It should be turned up so that police DO investigate claims, and prosecutors do press charges, and judges do sentence appropriately. Nobody's arguing that these things are necessary and proper.

  65. Ken White says:

    Is there any evidence at all which could sway Ken from this position of refusing to consider the facts of the case before taking sides in it?

    And defamation lawsuits intended to chill accusations of sexual harassment should meet with legal pushback. But you haven't got a threat yet. . . .

    Of course, you are perfectly within all of your rights to offer legal help to anyone you like, it only strikes me as odd that the person to whom you are offering it doesn't actually need it yet. And may never (hopefully).

    Run, goalpoasts, run!

  66. Ken White says:

    I'm really not sure that I'm interested in people re-arguing what they already argued in a nearly-1000-comment thread.

  67. @EAB: Sexual harrassment is a nasty, dirty crime. So is bullying. But as @James Pollock argues, we have to be very careful here. In the absence of any evidence – like your elevator groping story, presumably with no video surveillance – we cannot convict. And if a victim accuses someone publicly and cannot prove their accusations, they may have a defamation suit on their hands. That system is sometimes unfair to victims of crime; the alternative is unfair to victims of false accusations. Our legal system (here I refer to British Common Law, which underpins both American and most of Canadian jurisprudence) is based on the presumption of innocence. To me, it would be anathema to change that, even or especially in the cases of the most heinous crimes.

    @Ken: It sounds like you're bored with the whole thing. I'm guessing that all you wanted to do was to offer your support to these women. Assuming that the facts of the case are as they represent them, they have done a brave and necessary thing in reporting harassment. And I have no quibble with you offering them your support. I'd ask only that you too stick to the presumption of innocence that you champion in most instances. As you have pointed out in many cases, truth is an absolute defense in defamation suits. But you can't, or shouldn't, be able to arbitarily and publicly label someone a sexual harrasser (or a paedophile or a thief or a murderer or whatever) without facing consequences. You yourself have often been the champion of the falsely accused.

  68. Oh, and @Tom: what's with the gratuitous and undirected insult?

  69. legionseagle says:

    There seem to be very funny ideas floating about this thread about what lawyers do and, specifically, what representing someone accused of defamation means. Also, funny ideas that there's something vaguely unfair about offering pro bono legal services. If Party A chooses to sue Party B for defamation, Party A is taking the risk that Party B is rich enough to pay for legal representation or skilled enough to represent themselves or well-connected enough to obtain pro bono representation and if Party A went into the legal proceedings in the belief that Party B couldn't afford to defend themselves, Party A's nasty shock when it turns out they can is Party A's bad luck. And, similarly, Party B's lawyers don't have to assure themselves that Party B hadn't done it before they take the case; they might be looking for an opportunity to strike down a bad law as unconstitutional or put forward a really cracking plea in mitigation or assist Party B in having a proper day in court because fair representation is an ethical position in and of itself.

  70. James Pollock says:

    "There seem to be very funny ideas floating about this thread about what lawyers do and, specifically, what representing someone accused of defamation means."
    What would they be? Can you offer an example of one of these "funny" ideas?

  71. Dan Weber says:

    1.

    Elizabeth Moon comments in one of the threads. Elizabeth Moon joined the Marines. In 1968. She must be made of nails. Yet she's said that she's felt unsafe from the sexual harassment at sci-fi conventions. Geeze.

    2.

    I just learned that Wiscon is a feminist-themed convention. WTF is wrong with this guy?

    3.

    I do think that, should the named person actually be innocent, that Ken will have provided a slight bit of hurt to the actual innocent party. However, if he's not, Ken will have provided a vast amount of help to the actual innocent party. Seems a fair trade.

  72. James Pollock says:

    "I do think that, should the named person actually be innocent, that Ken will have provided a slight bit of hurt to the actual innocent party."

    Actually, I think that in the (unlikely to me) event that Mr. Nameless is innocent, Ken will have provided a slight bit of advantage to him. There are two reasons for this.
    1) A competent legal expert will be more likely to suggest/urge a settlement rather than running up costs on a meritorious case. The less-skilled, less-experienced counsel is more likely to mis-estimate the chance of prevailing.
    2) By offering pro bono assistance, it's less likely that the defendant would be judgment-proof at the end of the proceedings. (i.e., the money that would have gone to pay defense legal fees are now available to pay damages.)

  73. legionseagle says:

    Ah, Mr Pollock, we meet again.

    Mr White's offer reads as follows: "As far as I know, Ms. Ellis and Ms. Matthesen have not received specific legal threats.

    However, in the event that Ms. Ellis or Ms. Matthesen do receive legal threats or are subjected to litigation, I have agreed to give them my assistance in securing an effective and vigorous defense."

    This, so far as I can tell, is an offer made to two individuals about a specific situation and does not presuppose that Mr White has leapt to the conclusion that either individual is innocent of any claim that may be made against them, simply that he believes (for reasons which he finds good and sufficient) that he's prepared to defend them or assist their defence should such a claim be made.

    The very funny ideas include @Tarrou "Ken would like the world to know that while he will not discuss the merits of the case, he is firmly on the side of woman B, and will back her legally with his mighty Popehat signal, should anyone do anything aimed at her.

    Do I have that correct? If so, may I ask one more question? Is there any evidence at all which could sway Ken from this position of refusing to consider the facts of the case before taking sides in it?"

    and

    @Jonathan Gladstone "And I have no quibble with you offering them your support. I'd ask only that you too stick to the presumption of innocence that you champion in most instances. As you have pointed out in many cases, truth is an absolute defense in defamation suits. But you can't, or shouldn't, be able to arbitarily and publicly label someone a sexual harrasser (or a paedophile or a thief or a murderer or whatever) without facing consequences. "

    So far as I can tell, both of these people seem to assume that there's a free-floating concept called "the presumption of innocence" which requires lawyers to assess whether their clients or prospective clients actually did that which they are accused of (defamation, in this case) before offering their services to defend them, and unless they're sure that their prospective clients didn't do it, the "presumption of innocence" requires them not to take the case.

  74. @legionseagle: You're putting words in my mouth. I never in any way suggested that the presumption of innocence requires "requires lawyers to assess whether their clients or prospective clients actually did that which they are accused of". Both parties in this case – the one accused of sexual harassment and the other who Ken thinks might be accused of defamation – are legally presumed innocent. I suggested that Ken, who is a champion of that legal presumption in most cases, might want to make that possibility explicit here too.

  75. legionseagle says:

    @Jonathan Gladstone Why should he? If the alleged sexual harasser brings defamation proceedings then the alleged sexual harasser has to prove – on the balance of probabilities – that the words complained of were defamatory. The question of the claimant being presumed to be innocent in the defamation proceedings flies out of the window; it's something they have to establish affirmatively .

    So the claimant in a defamation claim based on an allegation of sexual harassment at a convention would have to establish (i) that the allegation was untrue [I'm aware there are differences between English and US law on the defence of truth; I'm simplifying]; (ii) that the allegation was capable of damaging his reputation in the eyes of reasonable people generally; (iii) that no other defence such as parliamentary privilege had been made out; (iv) that the statement was published by the defendant.

    Someone who established that he hadn't harassed A at that convention but had harassed B-Z inclusive over the years might easily fail on (ii) because they hadn't got a reputation to lose.

    By bringing defamation proceedings, as a result, claimants put their own reputations on the line (see Oscar Wilde, passim) and the "presumption of innocence" falls away, for the purposes of those proceedings.

  76. EAB says:

    @James, that's exactly what I'm talking about. You immediately go back to the idea that it's fixable somehow, which doesn't necessarily match up with the reality that many people (male and female) have experienced. You're always going to have child abuse and rape and assault and other non-provable crimes where there just isn't evidence to bring it to trial.

    To return to the OP topic, and I promise that's why I brought the story up in the first place, what I'm interested in is what to do when official recourse is unavailable or inadequate. I don't expect the police to go arrest Elevator Groper Man just on my say-so. I too care about the rule of law and the presumption of innocence and reasonable, and like @Jonathan Gladstone, I understand that it's important to preserve the system even with the knowledge that it's going to sometimes fail victims of crimes.

    That said, I'd also like to not get groped in elevators and to protect other people from doing the same. If EGM is someone I know, you can be very sure I will caution my friends and acquaintances that EGM is a creep and should be avoided. Yes, I'm ruining his good name and starting a witch hunt and smearing him in the court of public opinion, etc. The alternative is that he keeps assaulting people, and very possibly doing worse than that. Given that, I hope you can see why I find it upsetting that the general reaction in such cases is to leap to EGM's defense and talk about preserving his right to sue me for defamation.

    Look up the Noirin Shirley case from a couple years ago, an experience very similar to my EGM story above. She reported the incident to the organizers and authorities, who were unable to do anything. She then went public and named the person who assaulted her, at which point Slashdot and Reddit and the usual suspects spent weeks discussing what a terrible person Noirin Shirley was and how it wasn't really assault anyway. If you don't think Shirley should have gone public, that's basically saying you're okay with her attacker getting away with it, because that's what otherwise would have happened.

    In the Matthesen case, many people have now spoken up and said that they had had the same experiences with James Frenkel and warned their friends about him. Frenkel lost his job and was banned from Wiscon, but those consequences would all have happened privately had Matthesen and Ellis not spoken about him. The whisper campaign hadn't stopped him, and he could easily have found another job and gone to other cons and kept right on with his behavior. Now, he has finally been hit with sufficient social consequence that he won't harass people any more.

    Now, it seems that Frenkel may be going around blustering about suing Matthesen, which is to say that he's decided to publicly call her a liar and cost her a whole bunch of money and heartache — because she was his VICTIM, and because nothing else seemed likely to stop him from victimizing others. I prefer to presume innocence on Matthesen's part rather than Frenkel's, and I think it's great that Ken is volunteering to help prevent Matthesen from being further harassed through the law.

  77. Ken White says:

    @Jonathan: can you please provide a citation for the proposition that the presumption of innocence in criminal cases applies to plaintiffs or defendants in civil cases? Thank you.

  78. @Ken: IANAL, so you tell me. But it seems to me that if I accuse you of something, whether it's sexual harassment or defamation, and whether it's in a civil or criminal proceeding, you are presumed innocent until and unless proof is provided. I know there are some exceptions to the presumption of innocence and I know the standards of evidence and proof differ greatly between civil and criminal proceedings (and of course between jurisdictions)… but isn't the principle still valid?

    @legionseagle: I absolutely agree with your last post.

    @EAB: I don't know the details of this case. Your points are valid: people are, and should be, free to openly accuse douchebags of their douchebaggery. But accusations aren't always true and the can have real and lasting consequences. So the accused need to be free to defend themselves with, for example, defamation suits. I suspect that in this case Ken is just trying to level the playing field a bit. I was just surprised by his vehemence. I'm guessing he knew more about this case than he originally let on.

  79. Mark says:

    I'm curious as to how "presumption of innocence" has turned into "protection of ignorance" in so many people's minds. I'm glad that the courts and their agents do their best to adhere to that principle. I'm pleased that our press voluntarily tries to do the same most of the time. I'm thrilled when individuals on the street strive to do so in their lives.

    But approaching things from the point of view can't possibly lead to insisting that people who were involved in the original (public) event mustn't speak of things they know to be facts. And getting the legal system involved in making people not talk about facts they witnessed? Well that is the sort of @#$* that I come here hoping to hear Ken is helping fight. This isn't on the outer edge of Ken's interests, this is middle of his battle ground!

    Ken; regardless of "signal status" if you hear that someone is donating time to helping smack that brand of evil down… let us know if there is a way for me to throw money at them. Thanks!

  80. TimS says:

    Jonathan,

    I think you are conflating avoidance of type II errors with the legal concepts surrounding presumptions.

    "presumption" has a specific legal meaning, slightly different than "presumption of innocence." A generic presumption tells a decisionmaker what to do if parties get into a dispute, then no one says anything relevant. In that case, rule in favor of the party with the presumption.

    Theoretically, a state can pass a law with a presumption in favor of the plaintiff. For example, most jurisdictions have a presumption of deliver – if it made it to the post office with the correct address, the judge is allowed to assume it was delivered if the recipient can't show evidence otherwise.

    "Presumption of innocence" is shorthand for the legal doctrines that prohibit a government from creating those kinds of presumptions in criminal cases. Instead, the burden of proving the elements of a case always fall on the government. Assuming delivery of mail is an element of the crime, a jury can infer delivery from mailing, but the judge cannot instruct the jury that mailing is equivalent to delivery.

    Because the "Presumption of innocence" doctrine so tied to its purpose of protecting individuals from criminal sanction, it is hard to tease out its implication in a non-criminal setting. A non-criminal decision-maker (such as an employer or convention staff) could decide to always believe the accuser until evidence shows different. As you note, there are many policy reasons not to do things this way.

    But resolving that policy question is not really helped by talking about "presumption of innocence." As the very least, saying the equivalent of "I'd rather avoid type II errors than type I errors" is not the same thing as the presumption of innocence.

  81. James Pollock says:

    "That said, I'd also like to not get groped in elevators and to protect other people from doing the same."
    Yes. If it's "fixable".

    "If EGM is someone I know, you can be very sure I will caution my friends and acquaintances that EGM is a creep and should be avoided."
    Yes. Report, report, report. (Sorry, Ken, for repeating something I've said before, but, as a professional educator, I can tell you that repetition is sometimes necessary for concepts to be retained.)

    "Yes, I'm ruining his good name and starting a witch hunt and smearing him in the court of public opinion, etc."
    Not unless you're identifying someone who didn't do it.

    "The alternative is that he keeps assaulting people, and very possibly doing worse than that."
    Yes. That's why you need to report, report, report. When you speak up, you do your part (see above note about repetition.)

    "Given that, I hope you can see why I find it upsetting that the general reaction in such cases is to leap to EGM's defense and talk about preserving his right to sue me for defamation."
    Not only is that not the general reaction, I haven't seen anything like this.

    "Look up the Noirin Shirley case from a couple years ago, an experience very similar to my EGM story above."
    I'm not familiar with it, sorry.

    "If you don't think Shirley should have gone public, that's basically saying you're okay with her attacker getting away with it, because that's what otherwise would have happened."
    How do you get "I don't think Shirley should have gone public" from ANYTHING I wrote? In the interests of brevity, I'll summarize it as "report, report, report" and "If you don't report, you're part of the problem."

    "he has finally been hit with sufficient social consequence that he won't harass people any more."
    I think you are highly optimistic in this claim, but at least more people have been put on notice to be wary.

    "Now, it seems that Frenkel may be going around blustering about suing Matthesen, which is to say that he's decided to publicly call her a liar"
    If you say so. Talking about suing someone and actually doing it are two different things. Amongst other things, if he hires a lawyer to pursue his defamation claim, however, the lawyer is ethically required to investigate the facts before filing paperwork. If anything, getting competent legal representation to HIM is the quickest way to get him to shut up about suing for defamation (assuming facts are as presented, of course).

    "I prefer to presume innocence on Matthesen's part rather than Frenkel's"
    If look just a LITTLE more closely, you'll see that so did I.

  82. Ken White says:

    @Ken: IANAL, so you tell me.

    No thank you. You asserted the proposition that I am ignoring a fundamental principle of law, one that I had articulated before. I am giving you the benefit of the doubt that you had some basis to do so, and inviting you to demonstrate that basis.

    I will classify it as "interesting" the reaction this Popehat signal/offer of help has gotten, as opposed to all the other Popehat signals/offers of help I have ever articulated.

  83. Clark says:

    But what recourse does someone falsely labeled have?

    Why, quite simply, MORE SPEECH!!!!.

    I am in favor of this myself, but let's not pretend that it solves all problems.

    The problem is that once a cask of wine has one dog turd added to it, you can add as much more wine as you want to the mix, and it will always be some percent turd.

  84. EAB says:

    My primary problem with the social presumption of innocence in this kind of situation is that it's a zero-sum game. Either the event happened the way it's described, in which case the harasser is guilty, or it didn't, in which case the accuser is a malicious liar. Any presumption of Frenkel's innocence is logically equivalent to a presumption of Matthesen's guilt — there's no other way out like arguing that someone other than Frenkel was the guilty party.

    The rates of false reports of any kind of crime are pretty low for a variety of factors. I think a generous assumption would be that possibly up to 10% of harassment accusations are false. That means there's a 90% chance any given allegation is true, and yet the possibility of a false accusation is generally discussed as roughly equal to the possibility that Frenkel's a creep. On balance, that means we're unjustly accusing Matthesen, which is the exact opposite of creating a supportive culture which discourages harassment.

    Here's an old article on the Shirley case I mentioned above, with some very familiar themes. If you somehow knew for sure that the incident happened as reported, wouldn't it upset you to read an article like that? Would you even write that kind of post if you thought there was a 90% or more chance the incident happened as reported? Suppose you did, and a video of the incident surfaced which proved the allegations completely true. Would you feel proud of yourself that you'd stood up for the presumption of innocence, or would you feel a little sick that you'd spent so much energy defending a criminal and impugning the truthfulness of a victim?

    I think most of us would feel pretty chastened, and yet we're still mostly talking about how important it is to be able to thoroughly explore the possibility that the victim is a lying life-ruiner.

  85. azteclady says:

    EAB, I agree on all counts with what you are saying.

    I would like to read more about the Shirley case, but your link is not working for me. Could you give a bit more information so I find the right article?

  86. EAB says:

    @James, "report report report" continues to utterly miss the point I'm trying to make, which is how to handle it when report-report-report fails. Insisting that it should always be reportable and fixable is unhelpful at best, if not a willful denial of reality. I don't WANT the police to arrest EGM on my say-so alone without any supporting evidence (and it's laughable to think that elevator cameras are the solution, the problem not being confined to elevators). I think the police are correct to say "sorry that happened, but we can't do anything." There needs to be a robust standard for prosecution, and I understand that many cases of harassment and assault and even rape don't rise to that standard.

    I'm just not okay with the idea that the absence of legal consequences means that there should be a corresponding absence of social ones. While you personally may not have been arguing against public shaming, others on this thread have done indeed done so. With the exception of the first paragraph on fixability, I wasn't replying specifically to you, though I understand why that might be unclear. I'm not out to win an EAB-vs-James Pollock tennis match here, but to bring up points and issues I think are relevant to the thread as a whole.

  87. EAB says:

    Correct link is http://pauloflaherty.com/2010/11/06/what-about-the-other-side-of-the-noirin-shirley-accusation/, embarrassing HTML fail. TechCrunch covered it, and later scrubbed the post — see Gawker at http://gawker.com/5683821/why-did-techcrunch-scrub-a-post-about-an-alleged-tech-sexual-assault, or HuffPo at http://www.huffingtonpost.com/2010/11/08/google-blogger-noirin-shi_n_780372.html. It was a pretty big deal in the tech community at the time.

  88. Dan Weber says:

    The Shirley link has extra stuff at the front. Try http://pauloflaherty.com/2010/11/06/what-about-the-other-side-of-the-noirin-shirley-accusation/

    Yes, if I knew person A was completely accurate when accusing person B of doing something, I would be upset to hear someone asking if person A was being accurate.

    If cops were truthful 95% of the time when accusing someone, would it be okay to just go along with it? Would wondering if the cops had planted evidence be, on balance, unjustly accusing the cops, because they only plant evidence one time out of twenty?

    If public shaming is the only weapon that works, then it's the only weapon that works, but it doesn't mean it becomes scurrilous to question the use of the weapon.

  89. @Ken: I think the strong response to this post comes from two directions. First, it's about sexual harassment – you've noted before that such posts get more reaction, so no surprise there. Second, this invocation of the Popehat signal seems to me to be different from most others. Usually you're responding to a clear case of censorious douchebaggery – "look at this letter someone had their lawyer send, it threatens a blogger with all sorts of ridiculous consequences for their clearly documented protected speech" – but in this case you appear to be acting pre-emptively and against a type of speech that may not be quite so protected (i.e. in the unlikely event that the harrassment did not take place and if the accusation did cause damage).

    Thanks for your blog – I really do enjoy Popehat from my cold lonely cubicle up here in Canada.

  90. Cafe con Miel says:

    Ken,

    I love you.

    I don't understand this Popehat Signal. You aren't looking for counsel in an area of law you're unskilled or jurisdiction in which you're unlicensed to practice. If you wanted to offer your services, you could have contacted them directly. This just seems like you beating your chest about your own self-righteousness. Is something wrong? Are you depressed? Bored and trolling?

  91. James Pollock says:

    "My primary problem with the social presumption of innocence in this kind of situation is that it's a zero-sum game. Either the event happened the way it's described, in which case the harasser is guilty, or it didn't, in which case the accuser is a malicious liar."

    But the general case is NOT either-or.
    It may be that the man is a cad and a bounder and should be voted OUT of the club. Or it may be that the woman is a lying, malicious weasel.
    But there are other possibilities
    A) somebody did it, but it's NOT the guy who was named. and
    B) SOMETHING happened, but NOT the way it was described. and
    C) if you're getting events second- or third-hand, it could be that events were misreported along the way.

    "The rates of false reports of any kind of crime are pretty low for a variety of factors. I think a generous assumption would be that possibly up to 10% of harassment accusations are false."
    I think that assumption is high, and I think that one of the reasons is that for a long time, there's been minimal effect in making any report, true or false.

    "which is the exact opposite of creating a supportive culture which discourages harassment"
    I would like to see a supportive culture which discourages harassment AND discourages incorrect labeling of non-harassers as harassers. While there is some tension between the two, they are NOT diametrically opposed in a zero-sum game.

    "Would you feel proud of yourself that you'd stood up for the presumption of innocence, or would you feel a little sick that you'd spent so much energy defending a criminal and impugning the truthfulness of a victim?"
    You could ask that question of a defense attorney, which I am not. If only there were one around here someplace…

    "we're still mostly talking about how important it is to be able to thoroughly explore the possibility that the victim is a lying life-ruiner."
    Maintaining status quo is NOT making things better, but neither is trading one victim for another. Imagine all the scorn and bitterness and you have for harassers (righteously!) but directed at someone who didn't harass anybody. How does that make anything better for anybody?
    I'd argue that it works in the favor of the harassers, if they can point to someone who was incorrectly labeled a harasser. It would go something like "if they can falsely label him, they can falsely label me." I say, don't give them that cover.

  92. James Pollock says:

    "Insisting that it should always be reportable and fixable is unhelpful at best, if not a willful denial of reality"
    I don't recall ever saying that it should always be reportable OR fixable, much less insisting on it.

  93. Ken White says:

    If you wanted to offer your services, you could have contacted them directly.

    So: you are assuming that I haven't communicated with them? You're assuming they didn't come to me? You're assuming this post wasn't in consultation with them?

    Based on what are you assuming that?

    Troll, remove the mote from thine own eye.

  94. Votre says:

    I find it an odd mental gyration to suggest it's acceptable to publically out somebody for doing something, while at the same time declining to give the specifics that prompted the complaint.

    I guess there's a little bit of the FISA mindset to be found in all of us when it's our own hot button issues we're dealing with…

  95. Dan Weber says:

    Votre, I'm kind of the reverse on that. Someone has been named for doing something wrong, but the details weren't given. Which ameliorates the situation somewhat in case of a Type II error.

    Adding vivid details "so we can judge for ourselves" would drag both parties through the mud much more. The human brain loves stories and remembers them much better than dry statements about someone doing something wrong.

    I'm not sure I would have thought that a few days ago.

  96. PLW says:

    I don't understand everyone's confusion. You declare this publicly so the alleged dirtbag doesn't find some lawyer who's willing to sue on spec anticipating a settlement by a defendant who wants to avoid costly legal wrangling. The best Popehat signal (like the best nuclear weapon) is the one you never actually need to use.

  97. Ken White says:

    I don't understand everyone's confusion. You declare this publicly so the alleged dirtbag doesn't find some lawyer who's willing to sue on spec anticipating a settlement by a defendant who wants to avoid costly legal wrangling. The best Popehat signal (like the best nuclear weapon) is the one you never actually need to use.

    Apparently it is mysterious.

  98. I'm still with @James Pollock on this one: even if nine out of ten accusations of crime (harassment or murder or petty theft or whatever) are accurate, we have to protect the tenth accused. We do that with the presumption of innocence (in criminal proceedings in most jurisdictions and in civil proceedings in some) and with civil remedies against defamation. If the accused harasser wants to bring suit, he will have to risk airing dirty laundry and it looks like he'll face a serious and very committed legal team. If he's innocent, I'll be very sorry for him. If not, not.

    And like @Cafe con Miel, I suspect Ken of trolling. He appears to have given just enough information, on a very touchy subject, to set off a storm of comment. The thing that keeps me coming back is the dynamic tension: how do we simultaneously protect the accuser or complainant (who is usually really a victim of some sort of incident) and the accused (who may be guilty but may also be innocent)?

  99. Let's remember the word: alleged.

  100. Cafe con Miel says:

    The first two sentences would have made the post irrelevant — unless again, trolling or signalling. And I assumed that you wouldn't do irrelevant things because I assed-out-of-you-and-me that you're kind of busy. But the third possibility, that the post was a tactical decision was something I hadn't considered. I can see that a blog post would avoid the risk that a "govern yourself in the big leagues" type of warning letter would entail. Creative.

  101. Cafe con Miel says:

    my people have no tradition of blockquoting

  102. Nicholas Weaver says:

    PLW: Here's the confusion: There are a few rabid weasels who think that far to many of these claims are false, and that Ken's offer to ensure parity is somehow tilting things against the guy in question.

    The confusion is the rest of us don't understand the rabid weasels.

  103. EAB says:

    "But there are other possibilities: A) somebody did it, but it's NOT the guy who was named. and B) SOMETHING happened, but NOT the way it was described."

    B) is covered in the lying-liar case. If the incident didn't happen in the way that the accuser described, s/he is by definition lying about what happened. A) is trivial to dispose of in the case of genuine mistaken identity, and is relatively unlikely in the general case. If I know your name well enough to level an accusation against you (not always the case), it's because I know who you are. If you're all up in my face on the elevator, we can reasonably assume that I actually know what you look like. If I'm on a date with you, I'm not likely to mix you up with the guy I went out with last week.

    Again, this is part of the constant focus on edge cases rather than using Occam's Razor. I like that strategy for writing code, not so much when it's historically used as a dismissal tactic. I completely agree with you that the true incidence is likely much less than 10% (I was deliberately being very generous), and that part of the reason is that even credible reports are ignored. But the way in which those reports have been brushed off looks very much like the kind of arguments you've been making: "maybe it didn't happen that way", "maybe it was someone else!" Hence my frustration about how this discussion has tended to go a bit afield from the basic assumption that Matthesen and others like her are very likely making a truthful statement about a very bad thing.

    As for the rest, I doubt you will find anyone more scornful of false accusations than people who have actually been victims of harassment. However, we also understand that false accusations can be used as a tool to punish and intimidate victims. The more airspace we devote to considering false accusations, the more we encourage the belief that they are widespread, and consequently that any given accusation has a good chance of being false. That ultimately does more damage to victims by discouraging them from reporting.

    Basically, I'd like to see the discussion be centered around talking how ridiculous it is that someone's talking about suing Mattheson and Ellis, and how awesome it is that Ken's standing up for justice, with a footnote that we'd work to discern truth if contrary evidence were presented. Instead, it jumped pretty quickly to how concerned we are about public shaming and false accusations. That sends the message to people like Frenkel that yelping about false accusations will probably be taken as seriously, if not more so, than Matthesen's claims of harassment, and gives them cover for stuff like ridiculous defamation threats.

  104. Tom says:

    Gladstone:

    I trying to stay out of this, but (watching myself fail as I type), suspecting that Ken is using the Popehat signal just fer the lulz is paste-eating that even Joey Chestnut would envy.

    Your comments are not even wrong.

  105. Tom says:

    "As for the rest, I doubt you will find anyone more scornful of false accusations than people who have actually been victims of harassment."

    Thank you. I've never been a victim of harassment, but the phenomenon holds across every subject. It's the same reason that my liberal side hates Michael Moore. Crying "wolf!" when there's no wolf or "fifty 900 pound wolves!" when there's only five normal sized wolves invariably hurts whatever legitimacy the underlying fear of "wolf" may have.

    And in the particular case of sexual impropriety, it may be even more damaging because we've spent so long downplaying or ignoring the existence and anger of wolves.

  106. Tom says:

    Goddammit. *danger

    /threadjack

  107. @EAB: Ken is the only one who's talking about anyone suing Mattheson and/or Ellis: "As far as I know, Ms. Ellis and Ms. Matthesen have not received specific legal threats. However, in the event that Ms. Ellis or Ms. Matthesen do receive legal threats or are subjected to litigation, I have agreed to give them my assistance in securing an effective and vigorous defense." Well and good; they should be defended effectively and vigorously. They should not be presumed guilty (or liable, I suppose, since this would be a civil rather than a criminal proceeding) if someone makes an accusation against them, not even if 99.999% of such accusations turn out to be true. This is exactly the treatment I would hope any accused would get… even an alleged dirtbag with a crappy record of nasty behaviour.

  108. Votre says:

    Hmm…

    The best Popehat signal (like the best nuclear weapon) is the one you never actually need to use.

    Is that sort of like how it works for many AGs when it comes to threatening to call for a grand jury unless they get some 'consent' from the accused?

    Sorry. Intimidation is intimidation. No matter how many arguments in situational ethics you advance to support it.

  109. Tom says:

    Wait, threatening to mount a vigorous and competent defense against voluntary litigation is the same as threatening to institute criminal proceedings? Weird.

    I guess "I know karate" in response to "give me your lunch money" is also intimidation and therefore bad?

  110. @Tom: You seem very angry with me. I'm not sure why, but I hope you enjoy your weekend anyway. I'd prefer to play nice, if that's OK with you – one of the things I like best about Popehat is that the comment threads are usually mostly civilized. As for trolling, it happens from time to time, even here on Popehat.

  111. Votre says:

    @Dan Weber – I'm not looking for thrills or asking for the gory details. What I'm wondering is to what general form it took. Because I've heard the term bandied about for everything ranging from somebody "just knowing" what someone else was supposedly thinking to physical assault. So a simple clarification such as "inappropriate physical contact" or "deliberately lewd and provocative language" or "blatantly inappropriate reference" is all that would be needed.

    Maybe I'm naive, but once a formal complaint has been filed and the news of it (with names given) has hit the blogs – and the threat of a Pope Hat signal is lurking in the wings – it seems a bit disingenuous to start getting coy about exactly what – along with merely enough detail to provide some frame of reference – actually (or allegedly if you prefer) took place.

    That's not asking a lot. Especially since this is a place where we're supposed to really get down on the issues presented. Hard to do when what you hear is basically saying "something bad happened kiddies – and trust us, it was really bad – and we're fully prepared to do something truly serious about it if we have to…" and then wrapping it up by saying: "Ok folks, show's over. Move along, nothing more to see here."

    Here's a question: What does that sort of 'press release' almost remind us of? :-)

  112. Tom says:

    Concern yourself with my ton if you wish, Mr. Gladstone, and I'll remain concerned with your substance. Enjoy your weekend as well.

    Virtuoso trolling is part of what makes Popehat so special. It is not something I've yet seen associated with the Popehat signal.

  113. James Pollock says:

    "B) is covered in the lying-liar case. If the incident didn't happen in the way that the accuser described, s/he is by definition lying about what happened."
    Or is mistaken. It happens.

    "A) is trivial to dispose of in the case of genuine mistaken identity"
    People have landed in death row because of "genuine mistaken identify", so no, I'm not so quick to dismiss it.

    "But the way in which those reports have been brushed off looks very much like the kind of arguments you've been making: "maybe it didn't happen that way", "maybe it was someone else!""
    You're confusing two different things. INVESTIGATORS should assume that every claim is true, until proven otherwise, and brushing off claims is not how they should be operating. BUT claims should be verified before punishment is applied. See how those are two different stages of incident response?

    "As for the rest, I doubt you will find anyone more scornful of false accusations than people who have actually been victims of harassment. However, we also understand that false accusations can be used as a tool to punish and intimidate victims."
    OK, then you agree that ramping up enforcement while ALSO being vigilant for false claims is the way to go.

    "The more airspace we devote to considering false accusations, the more we encourage the belief that they are widespread, and consequently that any given accusation has a good chance of being false."
    Conversely, the more we plan our approach to reduce or remove the possibility of false accusations, we increase the belief that false accusations will be detected and identified, and thus that any accusation not so identified must be true.

    "That sends the message to people like Frenkel that yelping about false accusations will probably be taken as seriously, if not more so, than Matthesen's claims of harassment"
    I haven't seen any commentary suggesting that Frenkel's yelping about false accusations are being taken seriously.

    "gives them cover for stuff like ridiculous defamation threats."
    Not to people who understand how defamation lawsuits actually work.

  114. Votre says:

    "I guess "I know karate" in response to "give me your lunch money" is also intimidation and therefore bad?"

    @Tom – FWIW "I know karate" has been interpreted as "fighting words" in more than a few places depending on the context it was uttered in.

    Again, it might be far more beneficial to the larger issue of sexual harassment, and for building public awareness, to let this thing land in court and have it's day. That goes along with my natural tendency to give fools as much rope as they think they need.

    Ken's hanging out the dreaded pope hat signal is primarily intended to intimidate and keep this matter out of court. Possibly because (depending on what actually occurred since nobody seems to want to talk about what constituted this sexual harassment claim) there might be good legal grounds for some recovery in that the individual named as the offender lost his employment over it.

    The pillory and mob are poor substitutes for due process and law. Even in cases like this where my sympathies are wholly with Ms. Ellis, whom I'm more that willing to give the benefit of the doubt. :-)

  115. James Pollock says:

    "there might be good legal grounds for some recovery in that the individual named as the offender lost his employment over it."
    Truth is an absolute defense to defamation claims. You can't be sued for TRUTHFULLY saying person X did scumbaggy things, no matter how dire the consequences of being outed as a scumbag.
    So, if you believe M&E told the truth, you know that they have no fear of losing a defamation suit filed by F. They would have the expense and time loss of trial (reduced by offers of pro bono legal representation).

    The person who needs to worry about defamation liability is the person who recklessly publishes a false accusation… thus, a warning to be careful to be sure someone else's accusations are true before publishing them… that causes someone actual economic damages.

  116. @Tom: I would have more interest in your concern for my substance if you expressed it in something more meaningful than slurs. I look forward to better from you: I can see you're capable of it.

    As for "I know karate…", let's remember that according to Ken, no-one has threatened a lawsuit. So in this case it's more like, "I know karate, so you'd better not ask for my lunch money" before the other guy says anything at all.

    I agree with @Votre. I think the best outcome now would be for this thing to go to court. If the fellow accused of harassment is guilty he'd be wise to avoid that. From what we've seen here that seems likely, but it seems that only he and she know for sure. If he's innocent then he may have a claim even if he can't prove damages: I don't know how it works in the United States, but in Canada a successful finding of libel carries assumed damages… and I believe that something written on the Interwebz is libel rather than slander.

  117. spud says:

    It strikes me that much of the tooth-gnashing, block-quoting, and other knees-bent-running-about behavior seen here is a combination of several factors:

    1) The Popehat Signal is being invoked in an anticipatory fashion where there is no known threat of legal action.
    2) The Popehat Signal is brought up in the absence of any facts other than Person B blogging about having "experienced conduct she believed was harassment, and reported it…" and resulting fallout from the reporting and/or blogging. This tends to focus the reader's attention on the "experienced conduct" rather than the potential repercussions from the reporting/blogging about the experience. So the debate is turned from the proposed protection of a whistleblower reporting perceived wrongs to a debate about the validity of the whistleblowing itself.
    3) The pervasive discomfort in much of today's society about shifting social and legal norms with regard to what was once "boorish behavior" and is now simply seen for what it is: harassment. Like racially charged issues, I think that sexually charged issues are extremely difficult to discuss in this type of venue, especially in the absence of specifics.

    Really, from my reading, Ken's post was not about the truth of the allegations or the nature of the acts committed. You wouldn't know this from many of these comments. I took the post to be mainly a Statement of Support in the Event of Legal Threats Or Lawsuits (much like the title says). The alleged harasser may well be considering action against one or more of his accusers. He (and his potential counsel) should know that they are in for a fight so they can [govern] themselves accordingly. How this is "intimidation" escapes me. How it necessitates a debate about the validity of the claim, the facts of the claim, or a discussion about Men Who Grope Women In Elevators also escapes me. [As an aside, this last thing would be a crime that would land the perpetrator on the sex offender roles if committed in California. And making a police report is never a waste, even if it (tragically) goes nowhere for that particular victim. When the next victim comes forward, past allegations can be the strongest evidence against the groper, even if the prior cases were never prosecuted. Silence guarantees that the next time will be the "first" time, at least in the eyes of the police.]

    If the perpetrator feels that he has a legitimate claim against the people involved, he's free to pursue that claim. Just as the accusers are free to pursue their defense, and just as Ken is free to provide and/or organize whatever legal assistance he is willing and able to.

  118. Tom says:

    Mr. Gladstone,

    If I could figure out some coherent and relevant point you were trying to make in response to Ken I'd engage you on the substance.

    Ken said, in effect: "Person A wrote 'I reported Person X for being a creepy asshole and was surprised that mine was the first official report, because I knew other people had had problems with Person X before. So here's how to report assholes, creepy or otherwise, to make sure it goes on the record.' Then person B named Person X. The attempted intimidation of Persons A and B has is not yet actionable, but if it becomes so, they will be met with the Popehat signal."

    As far as I can tell, your response has been something like "Ken has not, to my satisfaction: 1) included in this post any non-letter-head grumblings of "I'll sue you" or other hints at potential thuggery he may know about; or 2) explained the genesis of his involvement in this matter. Hence, since he's normally in favor of the "presumption of innocence," he's probably just trolling with the Popehat signal because he's got a special place in his heart for harassment claims."

    I await you correction of my obvious misunderstandings.

    If you find yourself agreeing with Votre that something should probably wind up in court contra the Popehat signal, you really, really, really, reallyreallyreallyreally should consider thinking about pondering the possibility that you've either missed the point or are wrong.

    In this case I think you've missed the point, but for reasons that Ken called "interesting" up-thread.

  119. Tom says:

    And then some (probably short) asshole comes in with the quote of the thread (and it's even a parenthetical–brilliant):

    "(much like the title says)"

  120. legionseagle says:

    The comments really are showing up the slimy underbelly of the entrenched sexists in this thread. Anyone who can simultaneously claim (as @Votre seems to be doing up above) that it's important this matter ends up in court and it's intimidation for the OP to offer to find effective defence lawyers for the women in question if it does is basically saying that the really important thing is that those complaining of harassment must be made to PAY.

  121. Kat says:

    The paste-eating is strong in this thread.

    Ken: The purpose of this post is not to discuss that incident, or the nature of the conduct that led to the report.
    Everyone and related dogs: zomg, but related events! Conduct that dances around the topic!
    Ken: Guys, don't do this. Don't make this another creeper thread.
    Everyone: Rabble! Discuss! Rawr! Blockquotes!
    Ken: *sigh*

    Guys, you're in Ken's living room. Remember that he would be perfectly within his rights to borrow Scalzi's Mallet of Loving Correction to enforce his rules if necessary. * Even if he decides to be very nice and doesn't nix your comments, it's kinda rude to discuss it here when he doesn't feel like you using his space to do so. Sort of on par with going to a family reunion one year, discussing politics and fighting, then going to the next family reunion and discussing politics even though you've been asked not to on account of the huge fight that happened last time.

    * I am not advocating actual violence. I am also not implying that Ken doesn't have his own perfectly serviceable mallet.

  122. Anony Mouse says:

    If this dude is a serial abuser, and it's an open secret that he's a serial abuser, and it's known that informal complaints will be effectively ignored, why'd it take so long for someone to make a formal complaint?

  123. Erica says:

    Anony Mouse:

    As far as I can tell from skimming blog posts on the topic, it had to do with him being an editor at a publishing company, and therefore an influential person in the community where he found his victims.

  124. @Erica: If you are a genre writer, the editors at the genre publishing houses have a tremendous influence over your life; they control whether or not you and your friends have someplace to live or something to eat because they control the money you get in advances and royalties.

    So, yes, 'informal' complaints will be ignored, buried, or swept under the rug because convention committees' revenue depends on having Big Name Authors come to their conventions – who come to the convention to wheel and deal with the Big Name Editors. In my forty years of running and working at genre conventions, I'd see this kind of things happening and it would be very, very difficult to get anyone to sign a complain or deal with a complaint as no one wanted to rock the boat. It's why I'm no longer in F / SF fandom or a convention runner.

    And in the interests of full disclosure; Yes, I know Elise; it takes a lot for her to be offended.

    Bravo, Ken; you have my support and thanks for your stand.

  125. Votre says:

    @legionseagle – I think you've quite missed my point. What I was saying was that it was both important that things like this wind up before a court – and – that Ken (or a fellow Popehatter) show up to represent the woman in question should that come to pass.

    I find it curious that you could interpret what I was saying in any other way…

    Perhaps your apparent preoccupation with seeing, in your words, some "slimy underbelly of the entrenched sexists in this thread" made it difficult for you to actually understand what I said previously?

    Please don't try to put words in my mouth. Or twist what I'm saying to support some conclusion you've already drawn.

    And perhaps you could also tone down some of your hyperbole and characterizations? This is supposed to be a discussion. Not a slag session. :-)

  126. Ken White says:

    By the way: I am informed that you all are irredeemably nauseating to someone who keeps coming back to read despite you being irredeemably nauseating. Apparently I should not allow your comments on my blog so that people won't be nauseated.

    That observation may or may not be part of an ongoing very mean-spirited MRA parody; I can't tell for sure.

    But, uh, stop saying things that people don't like, and stuff.

  127. Kat says:

    In case I was unclear before: I'm not advocating or suggesting that Ken ought to take comments down. I'm objecting to the general rudeness inherent in ignoring his stated wishes. (Sorry if what I said came off differently, Ken!) I could easily read another 1000+ comment thread, myself, but I'm not so keen on expecting Ken to host the party, as it were.

  128. legionseagle says:

    @Votre Perhaps your words might be easier to interpret in the manner you apparently intend if you hadn't referred to Ken's sending out the Popehat signal as "intimidation". Twice. Since "sending out the Popehat signal" is simply intended to match lawyers with the potential defendants, it does make it difficult to understand that you actually want them to be defended if the need arises.

  129. Ken White says:

    No worries Kat. That wasn't directed at you.

  130. Nat Gertler says:

    Ken, in case anyone sues you over having become irredeemably nasueated by your message board, I hereby promise to represent you, and put out my PopeNat signal for others like me to do the same. True, I am not a lawyer, but I am a comic book writer and once helped write a Superman story, so I am intimately familiar with truth, justice, and the American way.

  131. James Pollock says:

    A quibble
    ""sending out the Popehat signal" is simply intended to match lawyers with the potential defendants"
    So close. The Popehat Signal is not necessary to match lawyers with defendants; millions of people manage to make such connections without resort to the Signal. Rather, the Signal is about matching pro bono lawyers to defendants.
    Which is not to say it's use is improper in any specific case or in general; it is not. Anyone unhappy with its use or proposed use is entirely free to construct a Paste-Eating Signal to request assistance for the opposing side of whatever the Popehat Signal is supporting.

  132. Ken White says:

    Nat, your offer to help is clearly intended to chill and intimidate, and the fact that you have offered to help without first conducting a jury trial into whether I cause nausea marks you as a white knight who has shat upon the presumption of innocence that is legally binding upon all human interaction.

  133. legionseagle says:

    @James Pollock – Lawyers prepared to take on the case pro bono, if you must, but I still return to the question – which I appreciate is not one you raised but one that @Votre did – why could that be supposed to be intimidation?

    It's potentially intimidatory, I'd say, if someone commenced an inherently unmeritorious lawsuit against someone with the objective of getting them to withdraw a claim of sexual harassment, knowing that potential defendant not to have the resources to fight the lawsuit in question, but I have real doubts as to why levelling the playing field by assisting that defendant to obtain legal advice by whatever means can be classed as "intimidation".

    And there's no particular magic in levelling the playing field by finding lawyers willing to act pro bono; it's easier than running a fund-raiser to pay legal defence at appropriate commercial rates and it's less of a political hot potato (and much easier to achieve in the short term) than introducing a comprehensive means-based legal aid system but all it does is remove one aspect of imbalance in the fight so that it can take place on its merits, if any.

  134. Nat Gertler says:

    Ken, I would defend myself from your comments, but as a mangina I am obviously too weak to do so. i am sending up the PopeNat signal to get a womenis to help me.

  135. James Pollock says:

    "I have real doubts as to why levelling the playing field by assisting that defendant to obtain legal advice by whatever means can be classed as "intimidation""
    Making sure that both sides have competent legal representation is "levelling the field". Making sure that one side has FREE legal representation while the other does not is not "levelling the field" unless one side has extensive resources while the other does not. I would be surprised to learn that this is the case here.

    "And there's no particular magic in levelling the playing field by finding lawyers willing to act pro bono"
    Again, we're not talking about levelling the field, we're talking about giving one side an advantage.

    "all it does is remove one aspect of imbalance in the fight"
    All it does is remove one aspect of imbalance and introduce another.

    The goal here IS intimidation. Ken (and various allies) want to intimidate Mr. Harasser into not filing a lawsuit (arguably, they ALSO want to intimidate Mr. Harasser into not even talking(blustering) about filing a lawsuit, either). Now, this is based on an understanding of law that Mr. Harasser almost definitely lacks and an understanding of facts that his critics probably lacks (and I definitely lack). There error, therefore, is assuming that ALL intimidation is bad. Basically, they're saying "don't do it, Mr. Harasser, because you can't win, and you can't even break even." It's the equivalent of posting a "guard dog on duty" sign; the point is to keep people from doing something stupid.

  136. legionseagle says:

    @James Pollock You and I will have to disagree about "giving one side an advantage." The plaintiff (claimant) has the initiative on their side; they can choose whether or not to bring proceedings, and one of the aspects in making such a choice is whether they have the resources to instruct lawyers and what level of legal representation they can afford. The defendant has no choice about whether they're a party to the litigation or not; that's the choice the plaintiff has made for them. They have to spend the money whether they've got it or not or find some other means of obtaining representation.

  137. legionseagle says:

    I don't call indicating to the other side in litigation that if they start it they've got a fight on their hands and they may wish to consider resolving the matter short of issuing proceedings "intimidation" – I call it ordinary litigation tactics, of the sort that apply no matter who's funding the case or what it's about.

  138. James Pollock says:

    "I don't call indicating to the other side in litigation that if they start it they've got a fight on their hands and they may wish to consider resolving the matter short of issuing proceedings "intimidation" – I call it ordinary litigation tactics"
    If you're of the opinion that "ordinary litigation tactics" are devoid of intimidation or attempts at intimidation, I question your awareness.

  139. James Pollock says:

    "You and I will have to disagree about "giving one side an advantage.""

    If there's no advantage in having free legal representation and it merely levels the field against the tactical advantages of being in the plaintiff, will you be calling for Mr. Harasser to receive free legal representation if any of his many "alleged" victims sue him for battery? Will you commit to provide such support NOW, before any such suits are filed? (I mean, assuming you want the victims to win based on the merits of their cases, and not an unlevel field. If all you care about is the victims winning, then I already know the answer to the question…)

  140. legionseagle says:

    @James Pollock Yes; I'd be absolutely delighted that were Mr Harasser (assuming him to be otherwise unavailable to afford competent representation) to be defended at public expense or otherwise have access to competent counsel were those circumstances to arise. Indeed, I'm actively involved in campaigning on my side of the Pond against changes to criminal legal aid which would (if implemented) weaken the availability of defence representation for those accused of the entire range of crimes including treason, murder, rape and terrorism.

    I'm not sure what "committing to provide support" is supposed to cover but so far as my political and moral support is concerned, yes, obviously.

  141. Unimaginative says:

    Why put alleged in quotation marks?

  142. James Pollock says:

    "Why put alleged in quotation marks?"
    Because at that point, the charge is not yet proven. However, we're working on an assumption that they are true.

  143. James Pollock says:

    " I'd be absolutely delighted that were Mr Harasser (assuming him to be otherwise unavailable to afford competent representation) to be defended at public expense or otherwise have access to competent counsel were those circumstances to arise."
    I didn't ask if you'd volunteer MY support (i.e., the public), I asked if you'd volunteer YOUR support.

    "I'm actively involved in campaigning on my side of the Pond against changes to criminal legal aid"
    On this side, all indigent criminal defendants have access to competent, if perhaps a trifle overworked, counsel. But we're talking about civil law here, not criminal.

  144. Unimaginative says:

    Yeah, but that's what alleged means. Putting it in quotation marks indicates you think that the alleged victims weren't victims, but are "alleged" hint hint wink wink victims.

  145. legionseagle says:

    No: I wouldn't volunteer my support because a) wrong jurisdiction, wrong skillset, wrong rights of audience and b) no reason to do so.

    Why should "I believe X should have competent legal representation in these circumstances" automatically become "If you believe X should have competent legal representation, then you should personally commit to providing it pro bono?"

  146. James Pollock says:

    "Putting it in quotation marks indicates you think that the alleged victims weren't victims, but are "alleged" hint hint wink wink victims."
    No, NOT putting it it quotations means that. Which is why I didn't do that.

  147. Unimaginative says:

    Seriously? I begin to understand why you keep running into situations where everybody is misunderstanding you in exactly the same way.

  148. James Pollock says:

    "I wouldn't volunteer my support because a) wrong jurisdiction, wrong skillset, wrong rights of audience and b) no reason to do so."
    For all we know, Mr. Harasser may have attended cons in the U.K., and have victims over there as well as over here. Note that Ken (generously) offered his own services, as well as offering to actively solicit assistance in those jurisdictions where he is not licensed or otherwise unable to offer his own services.

    "Why should "I believe X should have competent legal representation in these circumstances" automatically become "If you believe X should have competent legal representation, then you should personally commit to providing it pro bono?""
    I dunno. I believe it was MY point that offering to find competent representation was one thing, and that offering to personally represent a party pro bono and/or solicit pro bono representation were BOTH somehow necessary to "level the playing field". That pro bono representation for the defense is necessary to balance the natural advantage that comes with being the plaintiff.

    So, when I suggested the playing field should be, you know, level both directions, you've suddenly abandoned your interest in levelling the field. If pro bono help for the defense is necessary to level the field when the party you like is the defense, why is it suddenly NOT necessary to level the field when the party you DON'T like is the defense?

    "All I want is my fair advantage"
    –attributed to American football coach Weeb Eubank.

  149. James Pollock says:

    "I begin to understand why you keep running into situations where everybody is misunderstanding you in exactly the same way."
    That's a recent occurrence.

  150. James Pollock says:

    "I believe it was MY point that offering to find competent representation was one thing, and that offering to personally represent a party pro bono and/or solicit pro bono representation were BOTH somehow necessary to "level the playing field". That pro bono representation for the defense is necessary to balance the natural advantage that comes with being the plaintiff."

    Oops. Poor editing on my part. There's a piece missing in the middle. Finding representation is one thing, finding pro bono representation is another. Then legionseagle offered the notion that pro bono representation is just "levelling the field".

  151. Unimaginative says:

    To be clear, this statement

    The alleged victims work at a candy store.

    means that people who work at a candy store may be victims of something, but it has not been verified.

    This statement

    The "alleged" victims work at a "candy store".

    indicates that there is doubt about their status as victims and their place of employment.

  152. James Pollock says:

    I'll keep your "corrections" in mind.

  153. Kat says:

    To be clear, this statement

    The alleged victims work at a candy store.

    means that people who work at a candy store may be victims of something, but it has not been verified.

    This statement

    The "alleged" victims work at a "candy store".

    indicates that there is doubt about their status as victims and their place of employment.

    These are called scare quotes.

  154. Kat says:

    Scare quotes are quotation marks placed around a word or phrase to imply that it may not signify its apparent meaning or that it is not necessarily the way the quoting person would express its concept. Thus, the quotes are used to establish a use–mention distinction, in a similar way as verbally prefixing a phrase with "so-called". When referred to as "scare quotes", the quotation marks are suggested to imply skepticism or disagreement with the quoted terminology.

    Use of the term scare quotes appears to have arisen at some point during the first half of the 20th century. Occurrence of the term in books appears as early as 1946 in Southern California: An Island on the Land by Carey McWilliams and in the 1950s in academic literature.

    From the above link.

  155. James Pollock says:

    Note the difference between
    …"alleged" victims…
    and
    … alleged "victims"…

  156. Unimaginative says:

    Okay, so you're not doubting their status as victims, but you're doubting whether their victimhood is alleged? Again, why put quotation marks around alleged?

  157. James Pollock says:

    Because it's what I meant?

    There is a huge difference between
    …"alleged" victims…
    and
    … alleged "victims"…

    But there is no difference at all between
    …alleged victims…
    and
    …alleged "victims"…

    Had I written
    …alleged victims…
    there would have been a huge crapstorm of which I will summarize as "so, they're only allegedly victims, huh? I knew you were a {harasser yourself/rape apologist/asshole}"

    Why? Because people looking for a pattern will perceive a pattern, whether it's there or not.

  158. Kat says:

    My best guesses:

    1. I think he was using "alleged" in an ironic way to indicate that he perceived that people (not him, just people in the thread) were doubting that the word even needed to be there and/or be used. He has been clear that he doesn't like that as a general rule, so it was meant to be read as a critique on that. (In which case, it probably caused confusion because it was a sentence in what was effectively a different voice: he switched to us-as-speaker from him-as-speaker with no warning. Without some kind of vocal context for us to sense the shift, we didn't follow in the way he expected.)

    2. Either that, or he decided at some point that "alleged" really doesn't belong there and was using the quotes in the usual intended purpose–to express doubt that the word should be there at all.

    The possibility still exists that both of my guesses are totally wrong and he'll astound and irritate me with his creativity. But I'm pretty sure it's not #2.

  159. Kat says:

    You might try just saying "I'm saying alleged because I think that's the fairest term, I'm not trying to cast doubt on either side" to avoid confusion. Since we seem prone to misunderstand you and the misunderstandings take up a lot of time, and that seems to annoy you. Up to you, ultimately.

  160. Basil Forthrightly says:

    So person X, a professional, goes to a work event where he's in some sense expected to be representing his employer and behaves badly, publicly with numerous witnesses, the most directly affected of whom complains to his employer.

    It seems that some people are arguing that the employer should not have been allowed to fire a difficult employee. I'm surprised so many lobbyists for the NEA are reading Popehat. (Or perhaps some folks are merely arguing that an employer who wishes to fire a difficult employee most go through a public trial first, so that everbody can know that it's a "good" firing.)

    Or perhaps some folks are arguing that even though the employer has the right to do what they want in regard to choosing their employee, they shouldn't be doing so on the basis of information coming in from outside the organization, that being a douche in public is different from being a douche in the office.

  161. James Pollock says:

    "The possibility still exists that both of my guesses are totally wrong and he'll astound and irritate me with his creativity."
    It's not #2, but #2 was closer.
    Pedantically, the word alleged does belong where I put it.
    The context was "women who come forward to bring battery suits against Mr. Harasser", at present an entirely hypothetical class that may contain zero or more people who are actually victims, and zero or more people who are false accusers. Until the proceedings sort them out, "alleged victims" is the accurate term to describe the class as a whole.
    Now, if I use the term "alleged victims", it can be incorrectly interpreted and the predicted crapstorm is imminent. Thus, the use of scare quotes to disavow "alleged" as probably, but not certainly, extraneous in the sentence, is necessary.
    Then, if you're looking for me to accidently reveal my "true nature" as {harasser/apologist/asshole}, your brain will move the scare quotes, causing you to read something into the sentence that was not there, in order to fit the pattern you expected to see.
    Extra writing on my part doesn't seem to keep that from happening. Once the label's on, it sticks.

  162. Unimaginative says:

    But there is no difference at all between
    …alleged victims…
    and
    …alleged "victims"…

    Yes, there is. Alleged "victims" connotes doubt that the alleged victims, even if the allegations are true, were not harmed by whatever is it they're victims of.

    Alleged isn't even a word that's accumulated new connotations over time. If you had said "will you be calling for Mr. Harasser to receive free legal representation if any of his many alleged victims sue him for battery?", it would have been perfectly clear. Adding square quotes made your meaning murky and your intentions suspect.

  163. James Pollock says:

    "It seems that some people are arguing that the employer should not have been allowed to fire a difficult employee."
    That's a phenomenally stupid position to take. Who offered that argument?

  164. Basil Forthrightly says:

    Oops, posted too soon.

    Or are people seriously trying to suggest that some third party should be held responsible for the acts and omissions Mr. X's employer?

    Say for example a journalist is interviewing David Duke and in the middle of the interview, the journalist glitterbombs Duke ("because white supremacy is SO gay"); Duke complains to the journalist's paper, which reviews the complaint and decides based on the review to fire him.

  165. Basil Forthrightly says:

    If the employer has the right to fire, why is some 3rd party potentially liable when the employer exercises that right?

  166. James Pollock says:

    "Alleged isn't even a word that's accumulated new connotations over time."

    Sigh. Let's go to the dictionary:
    al·leged
    adjective
    1. declared or stated to be as described; asserted
    2. doubtful; suspect; supposed

    I guess if you fully intend to continue to infer something that wasn't there, there's nothing I can do about it. Have you met Mr. Karney?

  167. Basil Forthrightly says:

    And if the 3rd party is not liable, why the hue and cry about an offer to help find defense against a frivolous suit?

  168. James Pollock says:

    "If the employer has the right to fire, why is some 3rd party potentially liable when the employer exercises that right?"

    Depends on the legal theory. Tortious interference in business advantage, tortious interference with contract, or defamation may apply, all off the top of my head.

    If somebody negligently crashes into my car, causing me grievous bodily injury that takes substantial time to recover from, and my employer fires me because I stop coming to work, who is liable?

  169. James Pollock says:

    "And if the 3rd party is not liable, why the hue and cry about an offer to help find defense against a frivolous suit?"
    Objection. Calls for facts not in evidence.

  170. Tom says:

    This is so stupid that it's made me too stupid to stop reading and apparently stupid enough to comment again.

  171. James Pollock says:

    Get away, Tom. Get away.
    It's too late for me, but you can still save yourself…

  172. Basil Forthrightly says:

    There have been no assertion of fact made public that support any form of tort by the complainer, if you want to talk about "facts not evidence".

  173. James Pollock says:

    "There have been no assertion of fact made public that support any form of tort by the complainer, if you want to talk about "facts not evidence"."
    The, um, "complainer" has made no claims of any kind here.
    What's your point?

  174. AlphaCentauri says:

    @James Pollock:

    If there's no advantage in having free legal representation and it merely levels the field against the tactical advantages of being in the plaintiff, will you be calling for Mr. Harasser to receive free legal representation if any of his many "alleged" victims sue him for battery?

    Nobody's currently worried about him being sued for battery. His behavior is only at issue because he allegedly was able to harass women who publish in his niche field or work for his company that publishes in that niche field without fear of anyone making a formal complaint, let alone filing a lawsuit. Even if a woman won, even if no one had a shred of doubt that her version of events was accurate, people would still regard her as "litigious" and be less likely to want to publish her.

    Now if you're asking, "Would anyone be willing to represent him in a libel case against the women who posted on line," yes, there would be a very long line of underemployed lawyers willing to do so. Would they be paid their contingency fees if the plaintiff won? Yes. But my understanding about pro bono lawyers representing defendants like this is that their unpaid representation has real value and that if there is a successful anti-SLAPP suit, they will be paid for their service.

  175. James Pollock says:

    "Nobody's currently worried about him being sued for battery. His behavior is only at issue because he allegedly was able to harass women who publish in his niche field or work for his company that publishes in that niche field without fear of anyone making a formal complaint, let alone filing a lawsuit. Even if a woman won, even if no one had a shred of doubt that her version of events was accurate, people would still regard her as "litigious" and be less likely to want to publish her."

    First off, it's rude to hijack someone else's hypothetical.
    Second, there's no actual lawsuit of any kind in the wind, unless I'm mistaken.

    Now, he may have been able to get away with it for so long because he had a position of authority in the publishing field, but that doesn't mean that he's never battered someone outside the field… just that if he did, the victim(s) haven't come forward yet. And, there is the tiny but non-zero chance that a false accuser, sniffing a payday, makes a false accusation and claims battery. He is, after all, now known for this.
    So, yes, he COULD find himself defending a battery suit.

    In any case, the point of the hypothetical was to move the jackass from the hypothetical plaintiff's table to the hypothetical defense table. Since the claim was that pro bono legal representation was necessary to counter the tactical advantages of being the plaintiff. (Of course, most of us consider the substantial strategic disadvantage of the plaintiff, the burden of proof, to more than outweigh the tactical advantages of deciding when and if and sometimes where to sue.)

    "Now if you're asking, "Would anyone be willing to represent him in a libel case against the women who posted on line," yes, there would be a very long line of underemployed lawyers willing to do so."
    Well, idealist that I am, I'd like to believe that it'll take him a while to find one unethical enough to bill him more than 0.2, the amount of time necessary to tell him he's got no case. But sure, if Prenda can find local counsel, then Mr. Harasser will, too.

    "Would they be paid their contingency fees if the plaintiff won? Yes."
    Taking Mr. Harasser's case on contingency would be amazingly stupid. Lawyers who take on contingency cases either get really good at figuring out which cases they can win, or they find some other way to make a living.

  176. James Pollock says:

    On the other hand, if he WAS stupid enough to file a suit, you'd get to take discovery. The interrogatories would be a fascinating read, I'd wager.

  177. AlphaCentauri says:

    Most of the lawyers who would be willing to take the case would do so thinking they could put in a minimum number of hours and get an out of court settlement. Ken's offer takes that off the table. So yes, the line would be much shorter if he doesn't have a case.

    But that's the point, isn't it? If he has a case, he can find a lawyer to work on contingency. If he doesn't have a case, the women don't get sued. The US civil law system is so screwed up, we don't even recognize that as the ideal outcome instead of a case of intimidation.

  178. John Beaty says:

    James Pollock: "So, when I suggested the playing field should be, you know, level both directions, you've suddenly abandoned your interest in levelling the field. If pro bono help for the defense is necessary to level the field when the party you like is the defense, why is it suddenly NOT necessary to level the field when the party you DON'T like is the defense?"

    I believe the point has been made that since contingent fee arrangements exist for the plaintif(s), where they do not for teh defense, the playing field is thereby in need of leveling, thus the need for pro bono counsel forteh defense. If you disagree, would you please tell us why?

  179. James Pollock says:

    "we don't even recognize that as the ideal outcome instead of a case of intimidation."
    What do you mean by "we" in that sentence?

  180. James Pollock says:

    "I believe the point has been made that since contingent fee arrangements exist for the plaintif(s), where they do not for teh defense, the playing field is thereby in need of leveling, thus the need for pro bono counsel forteh defense. If you disagree, would you please tell us why?"
    Again?

    To start with, contingent fee arrangements are fairly rare outside of PI.
    That said, there's nothing that keeps either the plaintiff OR the defense from taking the case on contingency (contingency is prohibited in divorce cases and in criminal defense, otherwise it's limited only by the ethical rules governing "excessive fees"). As a matter of fact, some pro bono representation turns out to be on contingency, de facto, because if they prevail in a case of a type that permits fee awards, they CAN get paid even though they didn't intend to charge their client.

    So, let's assume Mr. Harasser consults with a competent attorney, and requests a contingent fee arrangement (he can ask, doesn't mean he'll get it.) The first thing the lawyer is going to do is assess his or her chances of prevailing. Given a defamation claim where the "defamatory" words are verifiably true, there's no chance of winning. If there's no chance of winning, a lawyer on contingency doesn't get paid. Lawyers don't like not getting paid. So, anybody competent is going to decline to take the case on contingency. So, contingency isn't really available in this case unless there are substantial facts not currently in evidence (substantial enough to throw the case into doubt… this seems unlikely).

    Ken's offer isn't really about "levelling the field" tactically. Rather, it's a strategic move… attempting to "pursuade" Mr. Harasser not to do something stupid. It's functionally equivalent to putting up a sign that says "guard dog on duty".

    Most people consider the field pretty level as it is, with each side paying for its own lawyers. You can take the "access to justice" course at your local law school if you really want to dig into the subject.

    So, if I believe (and I think Ken believes) that Mr. Harasser couldn't win a defamation lawsuit anyway, why not let him try? It would be an opportunity to drag all of his sins into the light of day! It would also be expensive, not just in money, but in time and effort (which ultimately comes back to money). Mr. Harasser might be so angry he does something stupid, like a file a lawsuit he can't win, just to cost the defendants time and money. Warning him that if he does this, the defendants will have free legal representation is a warning that this (filing a lawsuit) will cost YOU (Mr. Harasser) a lot of money but it won't cost THEM (Matthesen & Ellis) a lot of money, so think twice about it. Maybe think three times about it, if it still seems like a good idea after the second one.
    (Of course, even if they don't have to pay their attorneys, the time and effort of trial will still cost them money. But the scorched earth approach will cost him way more than it does them.)

  181. AlphaCentauri says:

    " Given a defamation claim where the "defamatory" words are verifiably true, there's no chance of winning. If there's no chance of winning, a lawyer on contingency doesn't get paid. Lawyers don't like not getting paid. So, anybody competent is going to decline to take the case on contingency. "

    You say that as if it's a bad thing.

  182. AlphaCentauri says:

    Think Prenda: The fact that they had no chance of winning was no obstacle to them — in fact, they made sure that no cases ever went to trial. They could count on getting money out of people if they asked for slightly less than it would cost the defendant to hire a lawyer. Frivolous suits are driven by the willingness of defendants to settle out of court because the cost of defending themselves is too high. Having a pro bono defense doesn't change the chance of the plaintiff winning at trial, but it means the plaintiff can't count on getting paid even though he has no chance of winning at trial.

  183. James Pollock says:

    "anybody competent is going to decline to take the case on contingency. "
    You say that as if it's a bad thing."
    Huh? How do you figure?

    (Prenda) "The fact that they had no chance of winning was no obstacle to them — in fact, they made sure that no cases ever went to trial"

    Prenda didn't make money by threatening to sue people, they made money by threatening to out them as porn downloaders. People didn't pay up to avoid being sued, they paid up to avoid having their names made public.
    Not the same model.

    "Having a pro bono defense doesn't change the chance of the plaintiff winning at trial, but it means the plaintiff can't count on getting paid even though he has no chance of winning at trial."
    That's a simplistic view. For example, it doesn't address the filing of a lawsuit whose purpose isn't to win, but merely to make the other party miserable. (see, e.g., the works of Charles Carreon) There's also, of course, the people with delusional beliefs of their odds of success. (see, e.g., Orly Taitz filing birther suits) (both covered extensively here on Popehat, conveniently enough).

  184. grouch says:


    (Of course, most of us consider the substantial strategic disadvantage of the plaintiff, the burden of proof, to more than outweigh the tactical advantages of deciding when and if and sometimes where to sue.)

    [insert annoying buzzer noise here]

    I want to see the survey that leads to that conclusion about "most". The Popehat Signal itself seems to have its genesis in a belief or observation that plaintiffs often see tactical advantage in ignoring facts other than the intimidation factors of the expense and the often excruciating process of defending against suits. For concrete examples of plaintiffs not bothered by burden of proof, see, e.g., SCO v. [the world] (10+ years and no proof of any claim by plaintiff yet, still gaming the system as a zombie); the million dollar pants (didn't the dry cleaner store go bankrupt?); AT&T and 'weev'; and, generally, Prenda.

    Anyone with sufficient funds and a desire to inflict long-lasting misery may suck a hapless victim into the clutches of the US Legal System, LLC for extensive invasion of privacy, depletion of resources (the system is very good at sucking resources for redistribution amongst its members), and public humiliation, by no more effort than finding a willing law firm and alleging barely credible claims. Courts and lawsuits appear to be too often tools for extortion or intimidation, or both.

    Or so it seems to this non-lawyer.

    [BTW, the existence of the Popehat Signal and the speed with which it is answered still shocks and awes me. Dare one hope that these rogue lawyers may someday reform this broken system? We must make certain they go forth and multiply!]

  185. Anony Mouse says:

    @Erica and Chirine ba Kal,

    Ah. That explains it. For some reason, I thought he was just another author.

  186. AnonymousDoe says:

    "Conduct yourself accordingly." — Love that.

  187. Basil Forthrightly says:

    "Given a defamation claim where the "defamatory" words are verifiably true, there's no chance of winning. If there's no chance of winning, a lawyer on contingency doesn't get paid. Lawyers don't like not getting paid. So, anybody competent is going to decline to take the case on contingency. So, contingency isn't really available in this case [...]"

    You seem to be assuming universal competency amongst attorneys; I rather expect that there's some desperate incompetent out there who's willing to roll the dice and hope for a defendant who just wants it all to go away as cheaply as possible, rather than pay extra to "win" in court.

  188. legionseagle says:

    @Basil Forthrightly I think there's also a severe underestimation of how much room there is for interpretation once the clearest statement gets to court. For example, in a recent English libel case, the rather magnificently named Mr Justice Tugenhat found that the tweet

    "Why is Lord McAlpine trending? *Innocent face*"

    "meant, in its natural and ordinary defamatory meaning, that the Claimant was a paedophile who was guilty of sexually abusing boys living in care."

    Which isn't necessarily the "natural and ordinary" meaning many people would have attributed to the phrase, including the woman who tweeted it.

  189. Xtifr says:

    @legionseagle: English libel law is quite a bit different from American, and is much more heavily weighted in favor of the plaintiff. This is something Ken has written about in the past. The analogy of the case involving Lord McAlpine doesn't work here, because that case was tried under English law.

    And to everyone else forming all sorts of hypotheticals, I'd like to remind people that Ken only said that he is willing to send up the Popehat Signal for these two women. He has not announced a general policy of sending up the signal for anyone accused of libel in a harassment case. Since he doesn't seem to be interested in discussing the details of this case, the case where he actually made the offer, we don't know if there's something special about this particular case that made him come to this decision–but it would be foolish to assume there isn't. Which, unfortunately, many people seem to be doing.

    So remember, before you start trying to tell us all what this is "really" like, that we may not be aware of all the facts in this particular case, and conduct your speculation accordingly.

  190. legionseagle says:

    @Xtifr I know US and UK libel laws are completely different – I mentioned that in one of my earlier comments. I only cited the McAlpine case to knock down the straw point about the hypothetical attorney who "knows" that the hypothetical claimant's case must fail – there's always sufficient chance of a tribunal coming to a different decision to fuel a claimant's optimism, even in an apparently clear cut case (and I've not speculated at all about this case if case it is)

  191. James Pollock says:

    "You seem to be assuming…"
    Why don't you read all that I wrote before deciding what I'm assuming? I've already addressed your points, and just don't feel like repeating.

  192. James Pollock says:

    "I only cited the McAlpine case to knock down the straw point about the hypothetical attorney who "knows" that the hypothetical claimant's case must fail – there's always sufficient chance of a tribunal coming to a different decision to fuel a claimant's optimism, even in an apparently clear cut case"

    Ah. So your advice to Orly Taitz is "keep trying, you have a chance of winning"?

  193. John Beaty says:

    @James Pollock, thanks for making that clearer.

  194. Kat says:

    Given a defamation claim where the "defamatory" words are verifiably true, there's no chance of winning. If there's no chance of winning, a lawyer on contingency doesn't get paid. Lawyers don't like not getting paid. So, anybody competent is going to decline to take the case on contingency. So, contingency isn't really available in this case [...]

    I really don't understand why this is a bad thing.

    So, if I believe (and I think Ken believes) that Mr. Harasser couldn't win a defamation lawsuit anyway, why not let him try? It would be an opportunity to drag all of his sins into the light of day!

    Let's say that Mr. Harasser is not actually a harasser but is someone who was falsely accused. He reports this false accusation and the Ms. Accuser gets fired from her job. Ms. Accuser decides to sue for defamation of character. Assuming Mr. Harasser is able to obtain pro-bono representation, is her suing him now a good outcome?

  195. James Pollock says:

    "I really don't understand why this is a bad thing."
    Because it's not. One of the things lawyers are supposed to do is say "you've got not case" to people who've got no case.

    If you look at the rules of civil procedure (there's a federal one and each jurisdiction has its own, often but not necessarily based on the federal) you'll find that lawyers are supposed to investigate the merits of the claim, and by signing the complaint, assert that the claims are real and not frivolous. Unfortunately, when sanctions are requested, it turns out that frivolous means to judges something other than what it means to the rest of us, so the failure has to be fairly egregious before any sanctions are applied. I'll leave it to the lawyers to explain why this is.

    "Let's say that Mr. Harasser is not actually a harasser but is someone who was falsely accused. He reports this false accusation and the Ms. Accuser gets fired from her job."
    OK so far.

    " Ms. Accuser decides to sue for defamation of character."
    Was there defamation? Did she mistakenly identify the unfortunately-named Mr. Harasser, or did she do it maliciously? When he defends this false accusation, how does he do it, and it what fora? Does Ms. Accuser have an employment contract that specifies for what purposes her employment may be terminated? All of these are relevant. Without knowing facts, it's possible that:
    A) she doesn't have a case
    B) she doesn't have a case of defamation, but does have a case of tortious interference with contract
    C) she has a defamation case.

    " Assuming Mr. Harasser is able to obtain pro-bono representation, is her suing him now a good outcome?"
    Can't say, although his representation doesn't go into the calculations.

    The general case for contingent fees is:
    There are people who have meritorious claims, but do not have the financial means to pursue them. Contingent fees allow these people to obtain the services, both before and during trial, of a competent attorney, who can assist them in getting their claims adjudicated.

    The general case for pro bono representation is:
    There are people who are poor enough so that they cannot afford legal representation. Where one side of a dispute has legal representation and the other does not, we run the risk that the case is not decided on the actual merits of the case, but technicalities that could have been addressed had both sides been represented. Pro bono representation increases the chances that a case will be decided on its merits rather than on knowledge of the local rules of court or other procedural issues.

  196. Grifter says:

    Not to be dumber than usual, but has the Popehat Signal been used pre-emptively in this manner in the past?

    Obviously, Ken may have access to information that a frivolous defamation suit is in the works, but phrased himself carefully since it's not "official", and therefore was being proactive in response to an actual threat…but thanks to that care, the rest of us don't know that.

    It seems here that the confusion of some folks (to a certain extent, myself included) is that the Popehat Signal has (to my dumb limited experience) been used when a case is brought, and it's clearly frivolous. One might assume that if a case was brought over this, it would be inherently frivolous, but since we don't know what the non-existent suit is, it seems some are reluctant to make that assumption.

    In this situation, since no case has been brought, the Relative Frivolity Index is undefined, hence, by being used under different circumstances than the usual ones, the confusion, and the claims that it seems one-sided?

  197. Kat says:

    Clearly I've been reading the thread all wrong, because I could swear that the general point has been "Ken used the Popehat signal pre-emptively and that's bad in this case, because it's chilling. The other side doesn't have access to free representation and may not bring the case." But now it's not a bad thing if the other side doesn't have contingency fees, because it's a lawyer's job to say "you've got no case" when this is true.

    No offense, but ???????

  198. Basil Forthrightly says:

    @james

    Kindly substitute "this statement seems to be assuming" for "you seem to be assuming".

    While your mass of text may jell to some wonderful intellectual construct in your mind, a self-reinforcing masterpiece of legal reasoning, it doesn't do so for me, no doubt due to my lack of legal education, my impoverished upbringing, my lack of personal grooming, and my addictions to snorting taint and molesting squirrels. I'm sorry that I'm so imbecilic and myopic that I'm only able to interpret the text I quoted without the context you seem to be asserting contravenes the meaning I find in said text.

  199. James Pollock says:

    "Clearly I've been reading the thread all wrong"
    A possibility. That's a danger when you take a whole bunch of different people's opinions and expect them to form a single, coherent, unified entity, and then attempt to distill that into two sentences.

    "But now it's not a bad thing if the other side doesn't have contingency fees, because it's a lawyer's job to say "you've got no case" when this is true."
    This is not a new development, but rather something that has always been true.

  200. James Pollock says:

    "Kindly substitute "this statement seems to be assuming" for "you seem to be assuming".

    OK. In return, kindly substitute "I already addressed your concerns" for "I already addressed your concerns" and "I don't feel like repeating myself" for "I don't feel like repeating myself".

  201. Kat says:

    Color me still confused, because I had the impression that you were commenting to object to something, but I have no idea what the something is.

  202. James Pollock says:

    "In this situation, since no case has been brought, the Relative Frivolity Index is undefined, hence, by being used under different circumstances than the usual ones, the confusion, and the claims that it seems one-sided?"

    I believe some of the confusion tracks back to vagueness on Ken's part. I believe that A) he intended to convey full support to Ms. Matthesen and Ms. Ellis in this SPECIFIC incident, and B) to encourage others who might have been intimidated out of reporting events for fear of facing crippling legal expenses if they had to defend any kind of meritless defamation claim that they should, in fact, report their incidents because, should the need arise, assistance would be very likely. The first, of course, is explicit, while the second is inferred (I believe reasonably).
    Obviously, once you're talking about hypothetical assistance to defend hypothetical suits filed in response to hypothetical reports of events which may not even have occurred yet, vagueness is unavoidable.

  203. James Pollock says:

    "I had the impression that you were commenting to object to something, but I have no idea what the something is."
    Must not be important, then.

  204. Kat says:

    It's hard for me to take someone's complaints of not being understood seriously when, in the event of being asked for clarification, that person instead says things like "my opinion is not important anyway."

    It sort of gives me a heavy impression of sulking.

  205. Tom says:

    After over 50 comments (~25% of the thread) and something like 6,500 words, James decides it's not important. Thanks.

  206. James Pollock says:

    "It sort of gives me a heavy impression of sulking."
    We've previously established that you have difficulty understanding me.

    I spent considerable time repeating myself last time around, and it made no difference. I decline to repeat myself this time around, and it makes no difference.

    Perhaps the problem is NOT at the presentation end.

  207. Unimaginative says:

    Perhaps the problem is NOT at the presentation end.

    I'm pretty sure that's not the case at all.

  208. Kat says:

    So you don't want to talk. Okay, that's fine.

  209. Basil Forthrightly says:

    @James

    I apologize; it seems that my quest to understand your statements has irritated you. I'm sorry.

    As no further enlightenment for me seems unlikely, no doubt due to my aforementioned deficiencies, I am retiring the field. You may if you wish assert that you have vanquished me. You're well on your way to winning the thread!

    Well done, sir, bravo!

  210. James Pollock says:

    "I'm pretty sure that's not the case at all."
    I'll file this opinion with your grammar "corrections".

  211. James Pollock says:

    "I apologize; it seems that my quest to understand your statements has irritated you. I'm sorry."
    Might have been your condescending tone combined with unwillingness to read things that were already there. Nevertheless, I accept. Have a good day.

  212. Basil Forthrightly says:

    "I'll file this opinion with your grammar "corrections"."

    Damn. I truly meant to abandon this thread, then you go say that. I have a degree in linguistics you see…

    Those were semantic corrections; he was asserting that your use of punctuation changed the meaning (or expressed a meaning contrary to fact, or was confusing in your argument, or something – I didn't bother to follow the kerfuffle closely, sorry un).

    Calling it a grammar dispute is as close as calling it a spelling dispute; close in that they're all in the genus of fights about communication conventions in the written language, but they're distinct species of disputes (and areas of analysis within both linguistics and writing generally).

    As a general rule of thumb, if you're referring to a dictionary and not invoking the usually cryptic notations about parts of speech for a word, you're not having a fight about grammar.

    Bye!

  213. Tom says:

    Basil,

    I think you probably misunderstood James, through no fault of his.

  214. James Pollock says:

    "I have a degree in linguistics you see…"
    Cool. Care to guess as to what mine are in?

    " I didn't bother "
    Yes. And you complain when called on it, too, and then try to cover it with failed snark. Have a good day. Or whatever kind of day you feel like having.

  215. Tom says:

    Not linguistics?

  216. James Pollock says:

    "Not linguistics?"
    Oh, good Lord, no.

  217. Tom says:

    Not English?

  218. James Pollock says:

    Now, Tom, let Basil have a guess.

  219. Tom says:

    He can guess, I'm anti-guessing. Not journalism?

  220. Kat says:

    What is even the point of this thread anymore

    /laughs helplessly

  221. Tom says:

    Please forgive my grammar spelling semantic error above; the comma should be a semi-colon.

  222. James Pollock says:

    "What is even the point of this thread anymore"
    Filling the time of people who've nothing better to do.

  223. Basil Forthrightly says:

    @James
    Sadly, my Gallifrean hyper-dimensional sonic caliper is broken today; otherwise, we could simply whip 'em out, measure 'em, and establish once and for all whose is bigger. I guess some questions were not meant to be answered.

    @Tom
    I find the most succinct comment on the "alleged" kerfuffle to be:

    "Putting it in quotation marks indicates you think that the alleged victims weren't victims, but are "alleged" hint hint wink wink victims."

    No, NOT putting it it quotations means that. Which is why I didn't do that.

    To me they're disputing on the meaning of "alleged", and meaning is semantics not grammar, at least when one is being pedantic or precise. Feel free to ascribe either adjective to me.

    Perhaps you understand the quote and the dispute differently. If so, I suspect this is an unresolvable difference.

  224. Tom says:

    Basil,

    No, I understood it exactly like you did. I was trying to sarcastically agree with you.

    Although, to be fair, that kerfuffle was the only part of this thread in which I could figure out what point James was trying to make and I think his critics did misunderstand him. He was scare-quoting the "alleged" to indicate that he had his doubts about whether the qualification was necessary.

  225. Kat says:

    I've often thought that we should just decide that putting a tilde (~) in front of something means the speaker is being sarcastic.

    The tilde would actually get used then.

  226. James Pollock says:

    "Sadly, my Gallifrean hyper-dimensional sonic caliper is broken today; otherwise, we could simply whip 'em out, measure 'em, and establish once and for all whose is bigger. I guess some questions were not meant to be answered."

    Your snark is not improving. Keep trying, though… EVENTUALLY you'll get the hang of it.

  227. barry says:

    It is hard to follow. I still haven't figured out who 'worked at the candy store'.

  228. James Pollock says:

    "I still haven't figured out who 'worked at the candy store'."

    According to Johnny Cash, it was the boy who lived next door to the Teenage Queen. That's hearsay, of course.

  229. grouch says:


    Obviously, once you're talking about hypothetical assistance to defend hypothetical suits filed in response to hypothetical reports of events which may not even have occurred yet, vagueness is unavoidable.

    – James Pollock

    You, sir, go too far!

    Could you clarify that, please?

    How about if you cross the International Date Line? Would that then be a sin?
    (Sorry, channelling Carlin for a moment, there).

    I think your inferred point B earlier is the real sword of Damocles that Ken has hung over Mr. Harrasser — his (former) power over "alleged" victims now must come with the fear that they are no longer defenseless.

    (@all & sundry: please redirect any challenges about quotation marks and "alleged" to James Pollock. (Yes, I have a slight mean streak. Character defect).).

  230. azteclady says:

    I confess my love for Basil Forthrightly.

    And Tom.

    And Kat.

  231. I'd like to stick with my original post here: I was surprised that Ken used the Popehat signal pre-emptively. I do not dispute his right to do so. I do not consider it "intimidation", but I do consider it somewhat chilling and I think that's exactly what Ken intended. If the accused is guilty, or a bad apple in general as has been suggested here, fine and good. My only concern is that the accused might be innocent, and scared off of a legitimate defamation suit.

  232. legionseagle says:

    And I stick with my original point also. Anyone who is "scared off" a case by the mere possibility that their opponent may have competent legal representation is not fighting a legitimate suit.

  233. Basil Forthrightly says:

    @Jonathan

    Scared off by what?

    The threat of effective opposition to a lawsuit? I'd think we'd all want all parties to be effectively represented in a legitimate suit. Our justice system is adversarial and ideally no one should get a free pass.

    The Streisand effect? Our legal system is a public one and I'd argue more public interest in it is good; however, the issue was bouncing around the blogosphere long before Ken posted. Scalzi's blog alone has just a bit less traffic than Popehat, but its been covered on lots of other blogs, including Jezebel.

  234. David Aubke says:

    I agree with @Jonathan Gladstone.

    I just can't get past the apparent contradiction that Ken is using the threat of legal consequences to attempt to scare someone off from pursuing relief for a potential defamation suit. And that this decision is not based on principle but rather.. well, something else – the apparent merits of the case or maybe a pre-existing relationship with the potential defendants.

    The notion that this is simply a counter-balance to sleazy lawyers and contingency fees doesn't cover it for me. Would he have offered the same message of support for Jennifer Allen?

    esteem –;

  235. Votre says:

    @David Aubke

    Thanks for your above post. You've expressed and neatly summarized exactly what I was trying to say far better than I did. (But that's probably because you're not part of "the slimy underbelly of the entrenched sexists in this thread" that one earlier comment implied I was a part of.)
    ;-))

  236. Ken White says:

    I just can't get past the apparent contradiction that Ken is using the threat of legal consequences to attempt to scare someone off from pursuing relief for a potential defamation suit.

    I note, with a combination of interest, hilarity, and contempt, that you think that a legal defense is a "threat of legal consequences."

    And that this decision is not based on principle but rather.. well, something else – the apparent merits of the case or maybe a pre-existing relationship with the potential defendants.

    Since you apparently have personal knowledge about my communications with the two people I offered to help, and what I learned, and my analysis of what I learned, and the law applying to what I learned, can you share with us the factual and legal basis of your conclusion that it is not principled?

    Also, I'm a little concerned: are you intercepting my email? Are you tapping my phone? How did you get to review those communications?

    Because, I mean, obviously you're a Very Serious Person. No serious person would just talk out of their ass about this. Right?

  237. James Pollock says:

    Whether or not it's chilling depends on whether you see this statement of support as A) limited specifically to Matthesen and Ellis or B) implying support for anyone else who finds themselves in a similar circumstance. I think B but I could be wrong; only Ken knows for sure if he meant to imply what I infer.

    So, if he is implying that the Signal will be used in any case with similar circumstance, then a chilling result exists: A hypothetical falsely accused person who has a meritorious defamation case now must contend not only with a vigorous defense, but also with the knowledge that while this hypothetically falsely-accused person must pay their own lawyer while the defense does not.
    So there IS a chilling effect, to the extent that such a person as I've just described exists. Hypothetically, they may, and hypothetically, they may not. At this point, it's impossible to say but also impossible to rule out the possibility.

    On the other hand, there may be people who have been harassed in one form or another, who would speak out about it, but are intimidated out of doing so by fear of having to defend a defamation lawsuit. By suggesting that pro bono assistance is often available and that Ken is personally invested in the goal of supporting these people should they face legal threats or actual legal process, Ken encourages people who have actually been harmed to report the incidents and name their abusers. Thus, not promising to use the Signal is ALSO chilling, to the extent that there are people situated as described in this paragraph.

    So, committing to use the Signal is potentially chilling and NOT committing to use the Signal is potentiall chilling. So Ken chose which group of hypothetically-affected-by-his-choice people he prefers to assist. Now, besides the obvious point that it is up to Ken to decide when or if to offer his services (either legal services or the assistance in locating services) for free and to whom, I think he picked the right side. Offering the Popehat Signal's incredible power doesn't completely eliminate the possibility of some asshat pressing a defamation lawsuit they cannot possibly win… but it does substantially reduce the likelihood of that kind of scorched-earth suit.

    To say that the potential benefit of the choice outweighs the potential harms is one thing (and let me be clear, that IS the position I take); to claim that there are no potential harms at all is just incorrect.

  238. David Aubke says:

    Ken, I've been trying in earnest for days to figure out your position on this. I can't. This is as close as I can get. Instead of "legal consequences", I wish I had said "ruinous legal expenses.

    I simply do not understand why you've chosen to make a public statement of support and why you invoked the Popehat Signal at the same time. I've tried every angle I can think of that gives you the benefit of the doubt and it never fully adds up.

    Maybe I'm slow. Maybe I'm not enlightened enough.

    But I haven't made fun of you.

  239. Ken White says:

    I simply do not understand why you've chosen to make a public statement of support and why you invoked the Popehat Signal at the same time. I've tried every angle I can think of that gives you the benefit of the doubt and it never fully adds up.

    If what I've said doesn't explain it, or not to your satisfaction, I can't imagine what could.

    But I haven't made fun of you.

    No, you've just said I'm unprincipled. And, instead of thanking you for your insight, I hurt your fee-fees! That's FASCISM.

  240. Kat says:

    Okay.

    1. The conduct in question was witnessed by multiple people who gave their own reports. This is what Elise Mattheson has to say about that interaction:

    I was there, standing around with a drink talking about Babylon 5, the work of China Mieville, and Marxist theories of labor (like you do) when an editor from a different house joined the conversation briefly and decided to do the thing that I reported. A minute or two after he left, one of the hosts came over to check on me. I was lucky: my host was alert and aware. On hearing what had happened, he gave me the name of a mandated reporter at the company the harasser was representing at the convention. (Source)

    One of the hosts of the party, who was a man ("he gave me the name"), was concerned enough to come over and check on Elise. Upon hearing the report of the behavior from Elise, which was corroborated by the witnesses present, he gave her the name of someone she could report the conduct to.

    This means that the behavior was objectively serious enough that a neutral third party concluded it was such. It thus passes the "reasonable person" standard; which is to say, would a reasonable person find this conduct objectionable? The behavior was also seen by multiple witnesses who readily corroborated Elise's report. In addition, another of the hosts of the party reported on the internet about the objectively true fact that the person who Elise reported was named James Frenkel. (source)

    2. Multiple industry professionals have come forward to indicate that they knew that Frenkel was a problem as early as 2010. At least one person–Jim Hines–indicates that he had heard about this particular editor in conjunction with sexual harassment in 2010 and had been hearing about him for at least 11 years, but made the decision not to name names at that time. This is his statement:

    In 2010, in response to a series of specific incidents involving an editor in the community, I posted a list of resources for Reporting Sexual Harassment in SF/F. A number of people made reports about this individual.

    I thought those reports had made a difference. I was wrong.

    What follows is an account and essay from Elise Matthesen describing the process of reporting an incident that took place this year at Wiscon. While I’m not in a position to name names on my blog, I will say that the individual in question is the same one I was hearing about in 2010.

    I ended up speaking to this person a while after I wrote that original blog post. He seemed genuinely contrite and regretful. I thought … I hoped … that he had learned, and that he would change his behavior.

    I was wrong.

    From what I’ve learned, nothing changed. Because the reports weren’t “formally documented,” this person was able to go on to harass other women. (source)

    This is not someone who cluelessly and innocently crossed a boundary once. This is someone who crossed boundaries for years and, when given leniency and a chance to correct the behavior, when talked to directly and firmly by other industry professionals about the unacceptability of his behavior, instead made the choice to continue to harass.

    Not only that, but he also admitted that his behavior in 2010 was wrong and "seemed genuinely contrite and regretful" when spoken to. This indicates that what happened in 2010 was also not made up or misunderstood, as it was acknowledged by the accused as having happened and having been wrong.

    The final *really important point* here is that it establishes that James Frenkel had a prior reputation of being a sexual harasser. This is important later, so keep it in mind.

    3. The reports in 2010 were not forwarded to Tor's Personnel and Legal departments in violation of the law. Here is a statement by an HR professional about this problem:

    Guess what? There is no such thing as an "informal" report. As someone with (many) decades of HR experience, I have zero trouble believing that Elise experienced the very behavior I saw so many of our staff snicker about, heard their victims complain about — and eventually used to document their terminations. What had me stunned is this line: ” It turned out that the previous reports had been made confidentially and not through HR and Legal. Therefore my report was the first one, because it was the first one that had ever been formally recorded.”

    Whenever I did training, I told every manager that they can be personally liable if they become aware of harassment — even from someone who says they want to keep it confidential. In addition, as the case with Mitsubishi showed (where the company said they never received any complaints of sexual harassment, but the courts awarded $34 million judgment against them), the company is also still liable if they *should* have been aware of a pattern of hostile work environment.

    It’s hard work to pursue an allegation, let alone a claim. I can’t tell you how many times I’ve had people in my office who start by saying, “I don’t want you to do anything about this, but I just thought you ought to know.” And I had to stop them and say, “I’m required by company policy, as well as by state and national law to investigate and take appropriate action.” Some went ahead to tell me what had happened. Others did not. But I can honestly say that in all the decades I was in HR, there was only one false accusation, and that very soon unraveled to reveal an attempt to cover up embezzlement with an accusation of harassment. (source — scroll down to see comment in question)

    The reports should have been part of Frenkel’s record but were not. If the law has been followed regarding retention of records, then the files should still be available in Tor's offices; they just weren't forwarded properly. I would assume that as part of their investigation, Tor tracked down the files. It’s what I would do, if I were working on investigating the case.

    In addition to Jim Hines, Mary Robinette Kowal also came forward saying that she had, in 2010, assisted one of Frenkel’s victims in reporting harassing behavior. She did not name names at that time, either. It is worth mentioning that at the time of the report, Mary Robinette Kowal was the Vice President of the Science Fiction Writers of America (SFWA).

    Back in 2010, while I was still VP of SFWA, I served as a conduit for a woman who had been sexually harassed by an editor to anonymously contact his employer. She didn’t feel safe doing so directly because she was afraid it would affect her career. You see that, right? The power that concern gave the editor over her? The publisher took it very seriously, and due to that the woman felt safe in speaking to a representative directly.

    Apparently, that doesn’t count as a formal complaint because it wasn’t to Human Resources or to the Legal Department. So, here we are in 2013 and Elise Matthesen was harassed by the same man at a convention. When she made a report, she was told it was the first one. (source)

    Here’s the full rundown of the evidence:

    1. The behavior happened at a party where there were multiple witnesses who corroborated Elise’s account.

    2. The behavior, as described to a neutral third party (who happened to be a man, in case that’s important), met the objective standard of harassment enough that the neutral third party thought it was important she know the name of someone she could report it to.

    3. Multiple well-known, credible industry professionals subsequently came forward to say that they had been aware of this editor having a reputation for this sort of inappropriate behavior, in some cases for at least 11 years (source). The ex-VP of the SFWA confirmed that she had helped facilitate a sexual harassment report concerning the editor herself. The first well-known author came forward to say that he spoke with the editor and that the editor seemed remorseful. Yet the editor continued in the same pattern of behavior.

    4. One of the co-hosts of the party came forward to name the person who Elise reported. The ex-VP of the SFWA subsequently confirmed that he was the same person who had been complained about in 2010.

    5. Elaine and Sigrid published this information on the web. Elaine said simply "I was sexually harassed and reported it." Sigrid identified herself and said simply "The person Elaine reported was named James Frenkel."

    In order for someone to have a case for defamation, the complaint has to meet these criteria:

    (i) that the allegation was untrue [I'm aware there are differences between English and US law on the defence of truth; I'm simplifying]; (ii) that the allegation was capable of damaging his reputation in the eyes of reasonable people generally; (iii) that no other defence such as parliamentary privilege had been made out; (iv) that the statement was published by the defendant.

    Let's look at these one by one.

    (i) is likely to fail. Multiple witnesses have come forward and lodged complaints about the behavior in question. Reasonable neutral third parties concluded that the behavior described was adequate to meet the definition of sexual harassment. It was formally reported.

    (ii) is also likely to fail. Frenkel had a past reputation, with past reports against him. Multiple credible witnesses have come forward saying that they have been aware of Frenkel having been a problem, in some cases for at least 11 years. One witness personally helped to report harassing behavior herself, and happens to be the ex-VP of the SFWA. Industry professionals have pulled Frenkel aside and told him that his behavior was unacceptable; and when pulled aside in this way, Frenkel expressed understanding of this unacceptability and contrition for having behaved this way.

    (iii) fails as well. Frenkel does not have any sort of privilege protecting him.

    (iv) is the only element that has even come close to being met, but in order for it to be fully met, an objectively untrue statement would have to be published.

    The only way that Frenkel has grounds for a legitimate defamation suit against Sigrid Ellis or Elise Mattheson is if multiple credible people in the SF/F field decided to frame him both in 2010 and in 2013. I suppose there is a miniscule chance that this has been in the works since 2010, much like there is a miniscule chance that leprechauns actually DO exist and give out gold. Note that I do not believe that leprechauns are a thing and neither do most rational people.

    Remember when Jonathan Monsarrat threatened Ron Newman and 100 Jane Does with legal action for talking about him on the internet? Remember how Ken said, at the time:

    Someone may have uttered false and genuinely defamatory words against Monsarrat; I don't know. I do know that defamation cases — particularly ones where the plaintiff is pursuing extravagant legal theories that threaten everyone's speech — are best resolved with vigorous and capable counsel on both sides. (source)

    Remember how literally nobody stood up and cried about how someone, somewhere might possibly, sometime down the line, actually be defamed and how the Popehat signal should not be invoked now because it might scare that innocent person off of a defamation claim in the future?

    Remember how people who didn’t feel that they had enough information went and Googled for that information and found it and didn’t complain about how they couldn’t be sure because they didn’t know the facts?

    Remember how nobody made the argument that JonMon ought to be allowed to bring the case to court to “set a precedent” and/or “let him make an idiot of himself” because that would have been harmful/stressful to the people threatened?

    Remember how when JonMon dismissed the case with prejudice because he was scared off of it, nobody shed any tears for him? (Isn’t that basically the definition of chilling we’re bringing up here—him being unable to try the suit in court? How is it bad if someone is chilled if they're bringing frivolous suit? How is Ken unprincipled if he participates in a process that scares vexatious litigants off of bringing improper suit?)

    Here is my question for you: If you are this concerned about defamation claims being “chilled” by the “threat” of both sides having a better chance being represented by vigorous and capable counsel, why didn’t you bring it up then? Why are you bringing this up now, when pretty much every rational person fundamentally agrees that Frenkel should not bring suit because it would be frivolous and harassing?

    Could you maybe at least wait until there is even the remotest possibility of its being the case to raise the concern? Because the most important takeaway here is “Elise Mattheson was sexually harassed at a con, wrote a post about how to report sexual harassment, and was okay with her harasser being disclosed to the internet; I support her in this because the facts seem to point in the direction of her being right in this instance” and NOT “some time, somewhere down the line, a man might have a problem with false reports of harassment and we need to talk about that RIGHT NOW, even though it's not a factor in this instance.”

    Seriously, I’m just gonna say it: if that is literally the most important thing that you think should be talked about when a woman faces sexual harassment (with extensive evidence that points to her side being right!) and speaks up about it, then you need a nice, tall, double-shot Shutthefuckupuccino.

    Don’t worry – it’s on me.

  241. Kat says:

    Second link was a fail. /sad

    Here it is:

    (source)

    My comment is currently stuck in the moderation queue, so if you don't see it right now, try coming back later.

  242. Kat says:

    Hmm. I'm actually finding that a lot of my sources are coming up all wrong for some reason. I actually had taken the comment out and pasted it into a word document to check it and the links are actually correct in the document but incorrect here, so I'm not sure what's up there.

    Source for Sigrid Ellis's statement: (source)

    Source for Jim C. Hines's statement: (source)

    Source for Mary Robinette Kowal's statement: (source)

    Source for "11 years" statement: (source)

    Source for Popehat signal re: JonMon: (source)

    Sorry to make you have to moderate more, Ken or whoever does the moderation! I hope this actually fixes it, since I'm looking at my second comment and it seems to have borked as well?

  243. Kat says:

    Hmm. Ken, I'm gonna email you the sources I'm linking, because for some reason they just aren't posting right, even after I took the time to correct them. I hope that's okay. You can feel free to nix the stray comments where I've tried to fix the problem if you so wish.

  244. Kat says:

    From my end, my sources aren't linking correctly; they're turning up as this:

    http://www.popehat.com/2013/07/11/a-statement-of-support-in-the-event-of-legal-threats-or-lawsuits/"

    Which brings up a "can't find this" error. (Spiffy page by the way!)

    I emailed Ken on the off chance that he can/has time to help, but if he doesn't, I'll be trying on posting the sources again in the morning. :)

  245. David Aubke says:

    I didn't say you were unprincipled, only that I can't understand the principle involved in this situation.

    Using insults to reinforce your argument isn't Fascism, it's just being kind of a jerk.

    If what I've said doesn't explain it, or not to your satisfaction, I can't imagine what could.

    'nuff said.

  246. SharonA says:

    My reading is that Ken hasn't yet put up the Popehat signal. It looks to me like he's simply saying – paraphrased – he's willing to do so in this case if it becomes necessary.

    As both a convention organizer (not WisCon) and a friend of Elise's, I thank you, Ken.

  247. Basil Forthrightly says:

    David,
    I'm going to take one and only one stab at this…

    You seem to be looking for some rote principle like "the Popehat signal goes up in defamation cases that involve blogs" or "it goes up when the defendant isn't liable" or "when it's a government censoring".

    Instead, in his first reply to you, Ken articulated what I read as a principle, that the Popehat signal will go up in (some) situations where he thinks speech might otherwise be chilled. The "some" of course is implicit. The "some" does not weaken the principle; Ken is concerned with fostering speech but is but one man, who also has other concerns. As such, I assume he's going to pick cases that he finds worthy; he's clearly said that he's not limiting himself to cases with no possible defamation, so worthiness is probably not contained in the four corners of the case. Again, he's trying to prevent chilled speech. In doing so, IMHO, the speech he's trying to defend is not that of the parties per se, but of everyone.

    Now, he's not articulated a bright line rule as to what will make a case worthy enough in his opinion. That doesn't weaken the principle, it makes the principle's application uncertain. I suspect that Ken will juggle his free time and other commitments, wrestle with his personal values, and perhaps most importantly look at the specifics of each situation, including law and facts and context and media coverage and the parties with their resources and "bang for his buck" for his efforts and conflicts with his other principles, if any. (I mean any conflicts, I suspect Ken has at least one other principle, somewhere – probably in his sock drawer.) Principles are not mechanistic rules that ignore the real world or apply inputs to produce outputs by rote.

    To rephrase, I think Ken has clearly said he will sometimes take up the mantle to attempt to deter the chill of speech, a fine principle IMHO. (And I'm personally happy about his choice to apply it to this case.)

    The world is uncertain; govern yourself accordingly.

  248. Kat says:

    Hopefully this will work this time :)

    Full list of sources I used:

    Elise Mattheson's comment: (Source)

    Sigrid Ellis's statement: (source)

    Jim Hines's statement: (source)

    H.R. professional's comment: (source — scroll down to see comment in question)

    Mary Robinette Kowal on reporting in 2010: (source)

    "11 years" comment: (source)

    Popehat signal on Monsarrat: (source)

    "googled for that information": (source)

  249. David Aubke says:

    @Basil, I appreciate your reasoned response. It brings me much closer than being chastised for continuing to misunderstand.

    I suppose it comes down to "fostering speech". Ken and many others are of the opinion that this post fosters speech. Some of us are not. I don't think either side are fools.

  250. Kat says:

    Gah. This is frustrating.

  251. Tom says:

    It's like trying to run or throw in a dream. Nothing works. Good luck both with html and your substantive efforts, sisyphean and quixotic as they may be.

  252. Kat says:

    Thanks Tom. :) Ken is trying to help me, but it might be best if I just try again in the morning.

  253. SharonA says:

    FWIW, the links worked for me after I removed the training double-quote.

  254. Ken White says:

    Kat, sorry. Mystified what is doing that. I will ask David.

  255. Kat says:

    Ken, it's fine. I used to be a systems engineering major, so I know that some computer phenomena can't be figured out without a lot of work or somebody who has seen the same thing before fixing it.

    Magic maintenance could remedy this, so I'ma try again in the morning. Seriously though, thank you for trying to help me. I hate having to take up your time.

    SharonA, the biggest problem that I'm running into is that a lot of the links are defaulting to linking to this post instead of what I'm actually trying to link to. Why is still a mystery. If we ever figure it out, I bet it will make a good story!

  256. James Pollock says:

    " if that is literally the most important thing that you think should be talked about when a woman faces sexual harassment"
    If we already agree on all of the more important things, we have no need to talk about them, do we? Is it necessary to list every single things that is not disputed before talking about the things that are?

    "(with extensive evidence that points to her side being right!)"
    If we're ONLY talking about one incident, that's one thing. If we're talking about the general case, then maybe not.
    Here's a hint… talking about a hypothetical where the evidence isn't clear cut is not at the same thing as saying that the evidence in this specific case is not clear. Don't confuse these two very different things.
    Once you get off the specific case and into discussing the general, you have a whole hypothetical range of "her side"s, which may include "extensive evidence that points to her side being right", "her side is right, but the evidence is equivocal" and working all the way down to "the only thing on her side is her word, and other evidence points to his side"

    "and speaks up about it, then you need a nice, tall, double-shot Shutthefuckupuccino."
    If you're driven to such paroxysms of rage by the mere thought that someone speaks in a way you don't like, perhaps you need assistance, as well. That's just not a healthy approach to life.

  257. grouch says:

    Kat:
    Have you tried posting them as plain text, 1 per line (or double-spacing)? That may confuse whatever magic daemon is absconding with your links.

  258. azteclady says:

    With or without links (and at this point, collating your various efforts, at least half of them are good), your run down is extremely clear, Kat, and it illuminates what I find most frustrating about some people's reactions, here and elsewhere.

  259. James Pollock says:

    I think the big picture is that a defamation suit (whether with any amount of merit or none at all) is a tool used to keep people from speaking up about what they've experienced. The threat to bring a defamation suit creates a fear of reporting (on top of the historical futility in doing so) that keeps the victims quiet. If we want to ask, request, or demand that people who've experienced it speak up, we need to take away the penalties for doing so to the best of our collective abilities. So we want the meritless and vexatious defamation suits defeated or better yes, not even filed.

    But, the threat of a defamation suit is also the chief tool preventing false accusations. We want the meritorious defamation cases to succeed.

    From a distance, it's hard to tell them apart before they're adjudicated.

  260. James Pollock says:

    "With or without links … your run down is extremely clear, Kat"
    I agree, excellent research and reporting. (and) It's nice to see that what I had assumed is thoroughly backed up by fact. But… was there anyone along the line claiming that Matthesen and Ellis were in the wrong?

  261. Votre says:

    Yes, thank you Kat for attempting to furnish some additional information.

    Especially since, from the tone and wording of many of Ken's comments in this thread, he's apparently much more comfortable being the one asking the questions and hurling sarcastic rejoinders than he is in clarifying his position and actions, or entering into some meaningful dialog for that matter.

    I confess to being a bit disappointed in that I had always considered Ken to be a step above those many in his profession who are incapable of genuine dialog and are only truly at home when standing on their soapbox, or speaking from behind the lectern. But apparently I'm mistaken.

    I suppose it's all where you're coming from. And how you envision a website such as this. My view was always that, if you want to create a genuine community, the only way to do it is to realize that you are entering into a complex social contract with your readership. A contract that includes a clause which says that one's ownership of the bat and ball doesn't mean you, and you alone, get to make all the rules. But apparently that isn't what Popehat is about. It's really more Ken's bully pulpit. Which is fine. The error was on my part to not realize this a bit earlier.

    Going forward, I'll sit back and just let Ken lecture and chastise at will. As someone pointed out earlier: Ken's house, Ken's rules.

    "So it goes," as a wise old man from Indiana once said. :-)

  262. Basil Forthrightly says:

    @Votre

    First, Ken's been very clear in the past that this his "living room"; "his house, his rules" indeed.

    Second, Ken's post and comments suggest to me that he may now or might in the future be acting as an attorney for some of these people. If so, he has an absolute professional ethical duty not to act against the interests of his clients; most attorneys do that in part by keeping quiet about the case until its over, except when they believe that speaking advances the interests of the client. If he's not involved in representation here, the appearance of it (or the ambiguity) advances the interests of folk he's decided to support.

  263. James Pollock says:

    Basil, there is a third option, specifically, the attorney's ethical responsibility to maintain client confidences, that might be in play here.

  264. Votre says:

    @Basil – regarding your above comment about potential client representation: understood. I already figured that out, as I'm sure most other readers here have. And, as I said previously, the mistake was on my part thinking in terms of 'community discussion' and 'open dialog' rather than 'site owner's soapbox' when I was posting my earlier comments. So it goes.

    I promise I won't let it happen again. ;-)

  265. Ken White says:

    My view was always that, if you want to create a genuine community, the only way to do it is to realize that you are entering into a complex social contract with your readership. A contract that includes a clause which says that one's ownership of the bat and ball doesn't mean you, and you alone, get to make all the rules.

    I think that you are going to be extremely and frequently disappointed with us here.

  266. Votre says:

    @Ken – Your decision, not mine. ;-)

    Not that it matters. There's enough good being done here by you and yours that the occasional bits of snarky grandstanding are easily forgiven.

  267. Kat says:

    If you're driven to such paroxysms of rage by the mere thought that someone speaks in a way you don't like, perhaps you need assistance, as well. That's just not a healthy approach to life.

    *Cue giant fucking eyeroll*

    I think you're not noticing that you're doing this – or at least I'm willing to try to give you the benefit of the doubt in this instance – but it's extremely common for a woman expressing feelings a man doesn't like to get told that she is crazy and/or mentally unhealthy for having those feelings or expressing them in a certain way.

    There are certain words that are applied to women specifically in order to manipulate them into compliance: “Slut”, “Bitch”, “Ugly/Fat” and of course, “Crazy”. These words encapsulate what society defines as the worst possible things a woman can be. Slut-shaming is used to coerce women into restricting their own sexuality into a pre-approved vision of feminine modesty and restraint. “Bitch” is used against women who might be seen as being too aggressive or assertive… acting, in other words, like a man might. “Ugly” or “Fat” are used – frequently interchangeably – to remind them that their core worth is based on a specific definition of beauty, and to deviate from it is to devalue not only oneself but to render her accomplishments or concerns as invalid.

    “Crazy” may well be the most insidious one of the four because it encompasses so much. At its base, calling women “crazy” is a way of waving away any behavior that men might find undesirable while simultaneously absolving those same men from responsibility. Why did you break up with her? Well, she was crazy. Said something a woman might find offensive? Stop being so sensitive. (source, bold mine)

    Listen. You aren't a psychologist. You don't even have a single psychology degree; you're a lawyer. Even if you were or had a degree, nobody can do an effective diagnosis on the internet. I know this because I have a psychology degree and as part of that degree program, I was required to take a professional ethics course geared towards clinical psychologists. One of the things they teach you is that you do not get to tell someone they have mental problems unless you are seeing that person in a clinical capacity.

    I can practically hear your objection coming up. "But, if someone genuinely believes that another person needs to get psychiatric help, that person has an ethical obligation to tell them!" And yeah, that's true. There is a very specific way that people handle communicating this information: by saying, "You're worrying me. Please call a counselor. Please call a hotline. Getting help is important. Are you going to call? Is there anything I can do to make you want to call?"

    It's clear that this was not what you had in mind. What you had in mind was to try to get me to shut me up by insinuating that my dissent was motivated by mental problems.

    If you want me to shut up? At least have the spine to say it directly. Don't do scummy manipulative things that take advantage of common socialization so you don't get called on it.

    I said previously that I had years of therapy that allowed me to set good boundaries. This is something we talked about during the course of the therapy: that people who insinuate that I'm insane when I express myself are not worth capitulating to, and how to call them on it so they don't try it again. Realize that I take this behavior extremely seriously *precisely because* this is part of the package of socialization that women are subjected to that makes them vulnerable to rape and *I personally* had to learn to counter to make myself safe.

    Realize that you did this unconsciously, and think about what the implications of that on your "women: just set good boundaries" position is. How many men do you think do this on a daily basis? You didn't even think about it. You just did it. Because as messed up as it is, it's pretty common.

    The only other thing I'm going to point out, is this:

    If we're ONLY talking about one incident, that's one thing.

    We are, in fact, ONLY talking about one incident. Ken made this pretty clear in the original post:

    in the event that Ms. Ellis or Ms. Matthesen do receive legal threats or are subjected to litigation, I have agreed to give them my assistance in securing an effective and vigorous defense. That assistance will include the Popehat Signal.

    When Ken has, in the past, called for assistance in other cases relating to defamation, no one has immediately jumped up and talked about how we need to be aware that this will make things more difficult for people who are falsely accused. The *only* time that this has happened was when Ken said he'd support a woman who all reasonable parties believe was actually sexually harassed. (In case you were wondering, Elise has, in fact, had her credibility and account called into question in this specific incident. http://www.jimchines.com/2013/06/how-to-report-sexual-harassment-by-elise-matthesen/comment-page-1/#comment-180755 is just one such comment.

    Tarrou also said in this upthread:

    Is there any evidence at all which could sway Ken from this position of refusing to consider the facts of the case before taking sides in it?

    This is par for the course for women talking about sexual harassment on the internet. You could be Mother fucking Theresa and have a video posted to Youtube about the incident, and you'd still have your account called into question. Related: Harlan Ellison groping Connie Willis onstage at WorldCon. http://www.mediabistro.com/galleycat/sci-fi-awards-show-marred-by-boorish-groping_b2755

    You asked:

    I speak of the next guy, or the one after that, however far down the line we go until a case of false or mistaken accusation arises. WHEN, not if, it does, will we recognize it?

    I answer: how about we talk about that when there is even remotely one chance in hell that an innocent party's rights are at risk? Until then, would it kill you to talk about an actual woman's actual experience of harassment instead of immediately derailing it to a future hypothetical innocent guy who gets falsely accused?

    By doing this, you don't have to say a word about how you feel about the validity of her complaint. Your ACTIONS state loud and clear that the only thing you care about in this scenario is making sure we're all careful not to support a woman who falsely accuses a man. Your ACTIONS state loud and clear that you want the standard reaction to a complaint of sexual harassment that is reasonably substantiated by evidence to be "but what about men who are falsely harassed? let's talk about them" even though you said:

    I believe (<– note the reference to faith here) that false reports (where no objectionable act actually occurred) to be very rare and mistaken reports (where the act happened, but is incorrectly ascribed to X when actually committed to Y) are very rare

    A woman came forward and talked about her actual reasonably substantiated report of harassment. Your response was to talk about a future hypothetical man being falsely accused of harassment. Can you see how that would be interpreted as you basically saying, "Talking about this woman's experience is not important. I want to talk about things that men might face in the future instead"? Because that's the strong implication that posting in that way carries.

    You don't have to like the implication, but you need to be aware that it's there and that people will react to it, sometimes with anger. Because again, you didn't say that you think this conversation is more important. You ACTED to derail the conversation to your preferred topic. Which is actually 10x worse than just coming out and acknowledging that this was what you were doing. If you had actually said, "I know it's important to talk about women's experiences, but I do want to go ahead and throw this out there" at least it would have carried some modicum of respect or understanding that women's experiences are important and that they often get shouted down and derailed to men's experiences and men's problems.

    Again, if you think the most important thing to do when discussing a woman's actual experiences of sexual harassment is to immediately shift the conversation to how a hypothetical man might someday be falsely accused of harassment (even though you think that's rare)?

    You need a shutthefuckuppucino.

  268. James Pollock says:

    ""the most important takeaway here is …"
    I don't think that's the most important takeaway. The reasoning why that is so is detailed upthread. While it's based on inferences that have not been confirmed, neither have they been disputed.

    http://www.popehat.com/2013/07/11/a-statement-of-support-in-the-event-of-legal-threats-or-lawsuits/#comment-1079520

  269. Clark says:

    @Kat:

    it's extremely common for a woman expressing feelings a man doesn't like to get told that she is crazy and/or mentally unhealthy for having those feelings or expressing them in a certain way.

    It's extremely common for members of both sexes to be told that they're crazy.

    In my experience, the language of "healthy attitudes" and "mental health" is actually used more often by women to shame men into silence than the reverse; men do the same thing, but don't use those particular phrases nearly as often.

    (Similarly, I think that as much as women decry "slut shaming", the majority of it that I've seen online has been deployed by women. I once had a few feminists gang up on me and instead of responding to an argument about gender and education immediately jump to declaring that I was an ugly virgin, and if I ** did ** have a girlfriend, she was likely a blow-up doll.)

    You need a shutthefuckuppucino.

    Speaking of trying to silence others, it sure seems like you just told someone that they needed to be silent in our blog because they're in YOUR presence…and did so in a crass and not-nearly-as-clever-as-you-think manner.

    Please take a time-out until you can debate an idea without dropping an F-bomb on a fellow commenter.

  270. azteclady says:

    Kat, you stamina is amazing. Though I believe the effort is wasted on him, it may help silent readers see things from a new perspective. Thank you.

  271. Kat says:

    Clark, perhaps it would be better to say, unless I can find statistics to back my earlier assertion up, that people using this tactic on other people in an attempt to override boundaries is common and also wrong no matter who's doing it.

    I'll also point out that men being criticized for not having sex and women being criticized for having sex seem to be evidence toward the same phenomenon–that men are expected to have sex and shamed if they don't have it, and that women are expected not to have sex and shamed if they DO do it. Anybody who engages in any tactic like this is doing scumbag behavior.

    Speaking of trying to silence others, it sure seems like you just told someone that they needed to be silent in our blog because they're in YOUR presence…and did so in a crass and not-nearly-as-clever-as-you-think manner.

    Please take a time-out until you can debate an idea without dropping an F-bomb on a fellow commenter.

    This verges onto the territory of the last thread, so I'm not going to debate the relative merits (that horse is dead). Rather I'm going to say: regardless of what anybody thinks about the acceptability of saying this in general society, this isn't general society, this is Popehat. You are absolutely right, it is your blog and you make the rules, and I was wrong and broke the rules of the blog.

    James, I'm sorry for breaking the rules of the blog. You were the one primarily affected.

    I still stand by my position, but I'm definitely not going to do that again here, and I'm also going to avoid the "f-bomb" in the future.

    I'll take that time out, and if there's anything that you think will make this situation better that I can do, I will do it. In the meantime, I think it would be most constructive for me to just stop here; even though I'm going to continue to read the comments, I won't respond.

  272. James Pollock says:

    "it's extremely common for a woman expressing feelings a man doesn't like to get told that she is crazy and/or mentally unhealthy for having those feelings or expressing them in a certain way."
    Perhaps it is. Does that mean it's always wrong?
    I'm going to double down, in a way. That type of rage is not healthy in the long term, whether it's being done by a man or a woman, to man or a woman.
    "Crazy" and "unhealthy" are not the same thing, btw.

    "You aren't a psychologist. You don't even have a single psychology degree; you're a lawyer. Even if you were or had a degree, nobody can do an effective diagnosis on the internet."
    Now I'm "diagnosing"?
    (BTW, -1 for observational skills. I am not now, and never have been, a lawyer. In this very thread, I said "I am not a lawyer" and listed my actual profession.)
    Call mea lawyer again and I'll sue you for defamation.

    "What you had in mind was to try to get me to shut me up"
    At the risk of "diagnosing", you're projecting. I believe that it was you, not me, inviting dissenters to a double shot of STFU-cinos.

    "If you want me to shut up? At least have the spine to say it directly."
    After all our exchanges, you think that if I wanted you to shut up, I wouldn't do so by bluntly telling you to shut up?

    "think about what the implications of that on your "women: just set good boundaries" position is."
    I would love to take your reactions to my position into account when making them. Unfortunately, you react to positions I don't have and refuse to let them go. So, no, I really can't take your reactions to the positions you attribute to me into account, because I can't even predict what they might be.

    "We are, in fact, ONLY talking about one incident."
    No, WE are not. Treating a discussion of one thing as a discussion of something else because it's what YOU want to talk about? Not working.

    "When Ken has, in the past, called for assistance in other cases relating to defamation, no one has immediately jumped up and talked about how we need to be aware that this will make things more difficult for people who are falsely accused."
    Because, in the past, such Signaling as has occurred has been limited to responding to specific threats or specific legal action. That is not the case here. Treating different things differently is not the sign of inconsistency you imagine.

    "The *only* time that this has happened was when Ken said he'd support a woman who all reasonable parties believe was actually sexually harassed."
    Because in THIS case, the Signal was offered (correctly, I believe, as outlined upthread) proactively rather than reactively.

    "you don't have to say a word about how you feel about the validity of her complaint."
    But I DID say a word about how I feel about the validity of her complaint. Several words. For example, there was this RIGHT BEFORE THE PART YOU QUOTED:
    "If, as I assume, he IS guilty, then he deserves what he has coming to him."
    Along the way, there was also:
    "The dial on the response-o-meter has been set too low for too long. It should be turned up so that police DO investigate claims, and prosecutors do press charges, and judges do sentence appropriately. Nobody's arguing that these things are necessary and proper."

    "I think that in the (unlikely to me) event that Mr. Nameless is innocent…"

    (Quoting) "I prefer to presume innocence on Matthesen's part rather than Frenkel's"
    If look just a LITTLE more closely, you'll see that so did I.

    "I would like to see a supportive culture which discourages harassment AND discourages incorrect labeling of non-harassers as harassers."

    "we're working on an assumption that they [Matthesen and Ellis' claims] are true."

    "Given a defamation claim where the "defamatory" words are verifiably true, there's no chance of winning."

    "if I believe (and I think Ken believes) that Mr. Harasser couldn't win a defamation lawsuit anyway…"

    So, given that I was prepared to believe Matthesen & Ellis' claims without even having to check, what exactly IS your complaint?

    "Your ACTIONS state loud and clear that the only thing you care about in this scenario is making sure we're all careful not to support a woman who falsely accuses a man."
    Am I interested in that? Yes. Is that the ONLY thing I care about? Not even close.

    "Your ACTIONS state loud and clear that you want the standard reaction to a complaint of sexual harassment that is reasonably substantiated by evidence to be "but what about men who are falsely harassed?"
    This is purely imaginary on your part. I could go through and quote the 100+ comments where I called for swift and thorough consequences for harassers, but it would be a waste of time, because you don't really care what I actually say, actually do, actually think. You're too busy being outraged by the things you imagine I said, did, or thought.

    "Can you see how that would be interpreted as you basically saying, "Talking about this woman's experience is not important. I want to talk about things that men might face in the future instead"?"
    No. I can't see how anything I wrote could be interpreted that way, unless someone really, really wanted to interpret it that way, and I have no control over that.

    Why aren't you angry at Ken? HE'S the one who said "the purpose of this post is not to discuss that incident, or the nature of the conduct that led to the report."? Instead, you're mad at ME for following his lead.

  273. Clark says:

    @Kat:

    I'll also point out that men being criticized for not having sex and women being criticized for having sex seem to be evidence toward the same phenomenon–that men are expected to have sex and shamed if they don't have it, and that women are expected not to have sex and shamed if they DO do it. Anybody who engages in any tactic like this is doing scumbag behavior.

    Agreed.

    you need a nice, tall, double-shot Shutthefuckupuccino.

    Please take a time-out until you can debate an idea without dropping an F-bomb on a fellow commenter.

    regardless of what anybody thinks about the
    acceptability of saying this in general society, this isn't
    general society, this is Popehat. You are absolutely right, it is
    your blog and you make the rules, and I was wrong and broke the
    rules of the blog.

    I'm not trying to make an argument-from-brute-force. The fact that I
    have the keys to power and can delete your or ban you is a
    terrible reason for you to not use the phrase "you need a nice,
    tall, double-shot Shutthefuckupuccino."

    So, let me explain myself:

    I believe that most of the time humans who disagree will never end up agreeing, because they start from different axioms and can not be budged from them.

    I also think that 1% of humans are rational enough, wise enough, or whatever enough that they can be convinced by weight of logic to abandon an old flawed opinion and take up a new one.

    This is the 1% of humanity that I want to hang around with.

    This is the 1% of humanity that is grossly overrepresented at Popehat (yay!).

    So, now that we've got a more-intelligent-than-average, more-wise-than-average group here, how do we go about using that for something good? I'm not a full-blown
    less-wronger, but I like their style.

    I think we can use our brains best, interact with each other best, come closest to finding the truth, when we argue rationally, and when we make a conscious effort to put down the rapier quip and engage in a bit more plodding logical debate.

    I like it when people state their opinions, state their reasons for believing them, and state their reasons for disbelieving other people's opinions.

    God knows that I'm the last person in the entire universe who should lecture others on intemperate speech, so I'm not getting holier-than-thou when I point this out; in fact I'm laying down more of a I'm-more-of-a-sinner-than-thou, please-learn-from-my-mistakes pulpit-smashing barn-burner of a sermon.

    Where does this leave us?

    I wrote my thoughts up once before somewhere in the blog, but when I search for the keyword "site:popehat.com 'is bullshit'", Google returns too many results for me to find it (thanks, Ken!).

    To restate my views from scratch:

    pointing out flaws in an argument: great!

    pointing out flaws of a commentor: not-so-good.

    using really funny gotcha language, that – seriously or not – tells people to stop talking: not-so-good.

    For example, this:

    @Kat • Jul 17, 2013 @8:00 am

    If you're driven to such paroxysms of rage by the mere thought that someone speaks in a way you don't like, perhaps you need assistance, as well. That's just not a healthy approach to life.

    *Cue giant fucking eyeroll*

    Is really not at all to my taste, and I think it doesn't help us understand each other better or convince anyone of anything, but I wouldn't argue that it's timeout worthy.

    I would, however, ask you what your motives are in adopting this writing style. Is it to feel snarky and good and righteous for having smote a bad person? Or is it to convince someone?

    You're allowed to have whatever motives you want, and I'm allowed to think that the second set of motives is better than the first.

  274. James Pollock says:

    " if there's anything that you think will make this situation better that I can do, I will do it."

    Start with, I encourage you to NOT "just shut up".

    However, I suspect that although we agree on about 99%, the difference between us on the other 1% is largely this: I can empathise with women who face harassment and have historically lacked tools to address it, but ALSO with people who are falsely accused of things they are not (or of doing things they have not done.) BOTH are victims of wrongful actions by others. NEITHER should be tolerated, and actions to prevent, mitigate, or address the very real problems of both are appropriate.

    Let me tell you a story. I went through a rough divorce (you're shocked by this news, I'm sure.) There was no dispute over money, or property. The ONLY contentious issue was child custody. Now, let me make clear that to any neutral third-party observer, it was in "the best interests of the child" to stay with me. I realize you may have trouble believing it, but you'll have to take my word for it. Objectively, my first priorities involved protecting my daughter's interest, and my ex-wife's did not. So, to pick up our story, she left, leaving myself and my daughter behind. THEN, I filed for divorce, and asked for child support, and my ex-wife suddenly remembered how much she would prefer to have custody. I do not imply that these are related, although I certainly inferred it myself.
    So, one day at about 10:00pm I get informed, by phone, that I need to be at the courthouse at 8:00am the next morning. She'd filed an ex-parte motion for emergency custody, claiming (meritlessly) a wide variety of acts that summarize as "unfit parent". I had no opportunity to defend myself; the judge ruled against me, and my daughter was removed from my custody based on my ex-wife's claims and supporting affidavits from her friends and friends of her new romantic partners, most of who I'd never met (yet they were somehow able to comment on my parenting).
    My daughter was taken from me, on the basis of false accusations (supported by "evidence"), and I had no idea when or if I'd be able to regain custody.
    The earliest I could ask for a rehearing was two weeks, at which point, prepared this time, I was able to factually dispute the false claims made against me. The emergency custody order was rescinded, and when the divorce case was heard, I was awarded sole legal and physical custody. However (stop me if this sounds familiar!) nothing was ever done about the perjured affidavits filed in the emergency custody hearings. Nobody was ever held to justice.

    So, yeah, I can empathise with people who are falsely accused, even if they're few and far between or even entirely hypothetical. Because nobody should suffer. The fact that one set of innocent people has suffered grievous wrongs does not make it acceptable to create another set of innocent people suffering grievous wrongs. Protecting one set of innocent people IS NOT the same thing as protecting the guilty, who, of course, SHOULD suffer for their sins.

    So, what is there that you can do to improve things? I will suggest (I choose this verb carefully) that you might start by looking for places where people agree with you and build on that, instead of looking for places where they have a hidden agenda that's contrary to yours (and attributing same to them on the slightest provocation.)

    Also, SERIOUSLY, find someone whose opinion you trust, who knows you, and can take a neutral look, and discuss your state of anger. From where I sit, way, way over here, it looks like it may be a problem that needs addressed. I could be wrong (it's happened before, and I'm sure it'll happen again) but I don't think I'm imagining it. Note that I don't say you shouldn't be angry, or that you don't have a right to be angry… merely that you should be directing it differently.

    BTW, you are correct that I don't have a degree in psychology… but both of my parents do, and my dad was on the doctoral track for a while and was teaching the subject during my early childhood. So, the textbooks were lying around. I went through at least half-a-dozen majors before I finally settled on one long enough to complete the degree requirements; I never even considered psychology.
    (I'm well aware that I am blunt, occasionally miss important details in presenting my thoughts, and fully prepared to stick to them even when they have unpopular effects

  275. James Pollock says:

    Oops. Unfinished paragraph. I just kind of trailed off at the end there.

    "…even when they have unpopular effects"
    This HAS caused me trouble in the past, and I'm sure it will in the future, but it's what I am, and what I've always been, so I guess I won't be running for elective office. Que sera, sera.

  276. Grifter says:

    @James Pollock:

    2 things:

    1 I don't think you actually said "I am not a lawyer", because I ctrl+f'd that. Not to nitpick, but I was curious what your profession was (just curious curious, not "to be snarky" curious).

    2 Didn't you pass the bar? I thought I read that in a comment at some point. Wouldn't that make you one even if you don't practice? (Also could just be dumbly misremembering)

  277. James Pollock says:

    "1 I don't think you actually said "I am not a lawyer", because I ctrl+f'd that. Not to nitpick, but I was curious what your profession was (just curious curious, not "to be snarky" curious). "

    Grifter, I'll give you half.
    http://www.popehat.com/2013/07/11/a-statement-of-support-in-the-event-of-legal-threats-or-lawsuits/comment-page-6/#comment-1078252
    Finding the other half is an exercise left for the reader with WAY too much time on their hands.

    "2 Didn't you pass the bar? I thought I read that in a comment at some point. Wouldn't that make you one even if you don't practice? (Also could just be dumbly misremembering)"

    Yes, I did pass the bar exam, and no, that doesn't make me a lawyer.
    When I applied to law school, I asked for a scholarship; I was offered a scholarship and committed to taking the bar exam as a result. (Law schools report a big pile of statistics, and the number of graduates who take and pass the bar is one of the things law schools are graded on.) I did not, however, commit to actually entering the bar, and, as I graduated into the teeth in the biggest recession the law profession has ever seen, I saw no likelhood of employment in that field at that time. Bar membership incurs costs even if one does NOT actually practice. There's CLE, and liability insurance, that must be carried. I could have completed my application, and then applied for an inactive status… instead, I just never completed the paperwork for the C&F committee, and went back to the type of work I did before deciding that law school sounded like a fun challenge.

  278. grouch says:

    Thanks for the links, Kat. The too-smart-for-its-own-good software made the now-unmangled text URIs clickable.

    My (quick, no research) impression is that Kat and James Pollock are talking past each other.

    James' habit of plain quotes with no blank line to separate the quote from his response makes it a bit difficult for me to untangle and, perhaps, has caused Kat to think some statements by others are attributable to James.

    Then again, I could be suffering from projected fat ugly crazy slut bitch syndrome.

    I thank you both for interesting, informative reading.

  279. James Pollock says:

    "James' habit of plain quotes with no blank line to separate the quote from his response makes it a bit difficult for me to untangle and, perhaps, has caused Kat to think some statements by others are attributable to James."
    I don't think the problem is typographical.

    "Then again, I could be suffering from projected fat ugly crazy slut bitch syndrome."
    That's not helpful.

  280. grouch says:


    That's not helpful.

    Bald assertion without supporting evidence. ;)

    Of course it's helpful, it:
    * Admits to limitations to my understanding of the dissension referenced;
    *Proposes hypothetical causes for such limitations, which causes could be concealed from readers by the medium through which the unresearched analysis was reported.
    *Reiterates pejoratives described and discussed and thereby draws further attention to them. (While not objectively helpful, I consider it so because I've witnessed such ad hominem terms used to short circuit debates (even between and amongst only males) and, hypothetically, someone, somewhere may not realize the implications Kat described. In addition, those terms seem to appear quite often in Internet discussions about sexual harassment. While each might be used for humor or to express the honest, subjective opinion of the observer, I find Kat's arguments persuasive and that these are just as often used to smear and dismiss or divert and derail).

  281. Basil Forthrightly says:

    @james

    "I don't think the problem is typographical"

    Why not? Grouch is reporting to us his personal observations; do you have evidence to the contrary that you'd care to share?

    Personally, I read that as an unsubtle ad hominem. Is that what you intended? If not, what did you mean?

  282. James Pollock says:

    "do you have evidence to the contrary"
    Yes.

    "that you'd care to share?"
    No.

    "I read that as an unsubtle ad hominem. Is that what you intended?"
    No.

  283. Unimaginative says:

    You don't have to like the implication, but you need to be aware that it's there and that people will react to it, sometimes with anger. Because again, you didn't say that you think this conversation is more important. You ACTED to derail the conversation to your preferred topic. Which is actually 10x worse than just coming out and acknowledging that this was what you were doing. If you had actually said, "I know it's important to talk about women's experiences, but I do want to go ahead and throw this out there" at least it would have carried some modicum of respect or understanding that women's experiences are important and that they often get shouted down and derailed to men's experiences and men's problems.

    1. A woman writes a very clear explanation of why some remarks in this thread are part of a societal pattern of silencing women, and why she feels a personal responsibility to call out such behaviour.

    2. She is immediately chided for her tone and potty mouth.

    3. The person she was directing her comments at responds with a story about his ex-wife's irrational, selfish behaviour.

    Kat, your comment was a thing of beauty. The responses to it were disappointing, but unsurprising.

  284. James Pollock says:

    "2. She is immediately chided for her tone and potty mouth."
    You missed the point of that chiding, I think. Not that you care what I think.
    But sure, whine about being "silenced" as you defend a call to silence someone. No irony here, nosiree.

  285. SharonA says:

    Thanks for the detailed posts, Kat.

  286. legionseagle says:

    @Unimaginative. Well said. Also, I think it's worth pointing out that the story about the ex wife is capable of two very different interpretations depending on where one stands in relation to it (and I can quite appreciate that for those caught up in it it would be immensely distressing). From one perspective, we have an example of the law working as it's supposed to: when acting in relation to an emergency application, particularly one involving children, the Court has to assume that there's a case to answer on the evidence and the supporting affidavits, because the failure mode of assuming the opposite (ie that the ex wife and her friends must be committing perjury) makes the system unworkable. However, it builds in a corrective mechanism, a return date in the near future, at which both parties can be heard. At the return date the Court finds the initial order shouldn't be upheld and restores the status quo. Anxiety and distress all round, of course, but it does allow for things to be corrected. What I get from the story is the message that simply winning the case wasn't good enough, though; what the person in question feels aggrieved about is that the ex-wife wasn't punished for having brought it in the first place. And that's where I start having misgivings.

    Yes; there's a valid point that perhaps the sanctions against perjury are not sufficiently effective in many cases, or that courts are too reluctant to examine allegations of perjury as a general issue, but equally the aggrieved party is likely to see perjury where a neutral party might see – at worst – a pig-headed and irrational but genuine belief in the rightness of her cause on the losing party's side.

  287. grouch says:


    Personally, I read that as an unsubtle ad hominem.
    – Basil Forthrightly

    I don't see it. In context, there is an implication of a suspicion of misunderstanding, but I see no attack upon a person in the statement referenced by your comment.

    Meanwhile, I went back through the whole thread to re-read each of James Pollock's comments to see if or where he earned the following:


    Your ACTIONS state loud and clear that the only thing you care about in this scenario is making sure we're all careful not to support a woman who falsely accuses a man.

    Can't find it. Apparently, this comment agitated Kat. I see no flaw in the logic within that comment. Even reading it without the context of the rest of the commentary, I can't see it as indicating that false accusations are the "only thing [James] care[s] about in this scenario." That assertion therefore appears misdirected, in my opinion.

    I dare to stick my nose into this for purely selfish reasons. As previously stated, I find the commentary by James Pollock and Kat to be both interesting and informative. It would be so even if I were willing to discount their respective accounts of tragic (to me) personal experiences, each related to the topic at hand. Selfishly, I want more such commentary to read in the near future, not less and fear there's a chill in the air right now.

    (BTW, "Lawyers don't like not getting paid." The cackle that induced woke the dog. When the dog is "alledged" to be over 180 lbs, nervous and overly affectionate, that's actionable. You'll hear from my lawyer as soon as I find an unhypothetical one willing to go pro bono for hypothetical contingency fees).

  288. James Pollock says:

    "From one perspective, we have an example of the law working as it's supposed to: when acting in relation to an emergency application, particularly one involving children, the Court has to assume that there's a case to answer on the evidence and the supporting affidavits, because the failure mode of assuming the opposite"
    It's usually the practice in court to solicit and obtain evidence from BOTH sides before rendering judgment, is it not? That is not what happened. Many, many claims involving third-parties were made; the court did not verify the claims with any of them. (For example, she claimed that I was in jeopardy of losing my job… a claim easily countered with an affidavit from my employer stating that they had no idea what she was talking about… had I been offered an opportunity to obtain it, which opportunity I was not given before my daughter was removed from her home.)

    "However, it builds in a corrective mechanism, a return date in the near future, at which both parties can be heard."
    This is preferable to you over getting it right the first time? Sad.

    "the aggrieved party is likely to see perjury where a neutral party might see – at worst – a pig-headed and irrational but genuine belief in the rightness of her cause on the losing party's side."
    Neutral parties (but not the court) see perjury. The details are long and complicated, but include: an affidavit from someone I'd never met describing (incorrectly) my parenting skills.

    I'll add, also, that she was the poster child for "vexatious litigant". Child custody is one of the only areas in American law where stare decisis does not apply. As a result, the fight over custody did not end when the divorce was finalized; there were repeated motions for change of custody for years afterwards. Now, I believed that a fair tribunal would find that my having custody was in the best interest of the child. But, after having that experience the first time, where I was given no opportunity to obtain evidence in my favor, I could never be SURE that a fair tribunal was what I would get. (It is, after all, a well-known fact that mothers win contested custody cases at somewhat more than a 50% rate).

    BTW, congratulations on raising the "but think of the children" excuse. Because it's OBVIOUS that a court should take whatever claims a non-custodial spouse makes in an ex-parte motion as true, because that could NEVER result in a child being taken from a safe, stable home and placed in an unsafe, unstable one.
    I confess I am intrigued by your notion that a court doesn't have to be fair, as long as there's a return date in the future where the court can try again to come to the right and proper result. Does that opinion apply to criminal trials, as well? Do you favor granting the CPS the right to present whatever unrebutted evidence it chooses without offering any opportunity to mount a defense, if children are involved?

  289. Kat says:

    @Clark: What you're referring to is often called the tone argument. I have issues with how the tone argument is both deployed and criticized, but rather than try to write a whole debate on it, I have a good source that seems to sum up both sides pretty okay. Here's the money quote for me:

    Admittedly, I struggle with this, because hi, rhetorician, which is as much about how you say something as what you say. But as I’ve said a time or twelve, I also very much believe in purpose and context and audience. There are certainly combinations of these where anger and even vitriol is not only appropriate, but necessary. As I said above, it’s seldom particularly useful to be vitriolic toward your audience, although there are layers, there. I have been known to send a fairly pointed response or two to a blogger or company rep. However, usually when I do that, I know I have little hope of persuading the person I am actually addressing. I might hope to impress on them that their words or actions have genuinely upset me, but usually, by the time I’ve gotten to overt vitriol, I’ve given up on them, and am instead hoping that a secondary audience (other readers, usually) who are at least open to my ideas will be galvanized. So when someone says that they’d have listened if I’d just been nicer, I can just shrug and think, “no, you wouldn’t have,” and move on. (http://lucereta.wordpress.com/2011/06/30/tone-argument-as-logical-fallacy/ – bold mine)

    Regarding my specific motivations in this instance: in my opinion, it's fairly easy for a reasonable person to see someone pulling a tactic like gaslighting and just sort of gloss over it, because it happens so much and is so normative in our culture. So yes, I believe saying *cue giant f-ing eyeroll* is important, because it draws attention to the behavior being objectionable and not at all cool. Even if it irritates the person who receives the eyeroll.

    If somebody says to me, "You're crazy for having those feelings/expressing them this way" as shorthand for "I disagree with you," and we both agree that doing this is wrong and bad behavior, in my opinion it does not follow that I must turn around and be nice to this person or it means I have Bad Motives. My motives are to shut that abusive behavior down as quickly as possible. I don't particularly care if I'm hurting someone's feelings or convincing them I'm right at that point.

    (This was also the motivation behind my discussing "you are not a psychologist and you were not trying to engage with me – here's how actually engaging with me looks." Not trying to wave my expertise around, but to state why what he said pinged my "gaslighting" radar, particularly in the context where he didn't respond to the substantive point of my statement at all but dismissed it generally as being the product of unreasonable emotion and therefore not worth addressing. If he thought it was worth responding to, he still acted as if it wasn't and that what he had said addressed my concerns in an adequate way. He also didn't offer any other explanation for why he generally dismissed what I said aside from that I was behaving with unhealthy anger, which generally gives rise to the implication that he doesn't have any other reason for setting the points aside; it seemed that to him the unhealthy anger was the sum total of my point.)

    I will finally note that I disagree with the general stance that saying "I want you to stop talking about this" is inherently wrong; but my position verges on the territory of the last thread, which was shut down and which Ken has asked us not to revisit. I'll just say, as easy shorthand, that when the Patriot Guard Riders showed up and began counter-protesting against the Westboro Baptist Church, I was one of the ones cheering. In case you aren't familiar, the PGR basically come to the WBC's strikes with their motorcycles, form a barricade, and rev their engines so that the WBC members are completely drowned out. http://www.youtube.com/watch?v=82ZbmcjKh4I

    My point in bringing up this particular group is not to imply that anything here has risen to the level of the Westboro Baptist Church; they're just an easy example because basically everybody who knows what rational discourse looks like agrees that they don't engage in it. Using them allows me to get to my point without having to have a whole other discussion that verges on banned territory.

    So here is my point: while I'm fine with discussing the acceptability of telling specific people in specific contexts that their speech is unwelcome, I'm personally not fine with saying "you can never tell anyone to shut up period." Because, well, WBC. If you disagree with even that example, then I suspect that this is an irreconcilable difference and that you and I are going to continue to disagree no matter what, and we can probably avoid a whole lot of arguing by acknowledging that.

    @James:

    Also, SERIOUSLY, find someone whose opinion you trust, who knows you, and can take a neutral look, and discuss your state of anger. From where I sit, way, way over here, it looks like it may be a problem that needs addressed.

    You should know that I've actually been having someone read over my long comments before I post them–that's part of why it's taking me so long to respond. Sometimes folks that I want to hear from don't get back to me for a day or so.

    With that in mind, what you are likely seeing here is a fundamental attribution error/correspondence bias. http://lesswrong.com/lw/hz/correspondence_bias/

    The context that you are missing is that almost every thread about women's issues I have participated in that has been unmoderated ultimately gets derailed by someone who feels it's important to acknowledge that things happen to men, too. Here is one source that talks about that, and in case you don't want to read the whole thing, some quotes.

    The thing is, a feminist space — unless the topic is specifically men’s issues — is not the place to have that discussion and neither are spaces (feminist or otherwise) in which the topic is specifically focused on women’s issues.

    What it boils down to is this: Men, not women, need to be the ones creating the spaces to discuss men’s issues. There are a lot of feminist allies who do this, in fact, and there also a lot of non-feminist (or anti-feminist, if you really want to go there) spaces that are welcoming to this kind of discussion. Thus, the appropriate response to a thread about women is not to post a comment on it about men, but rather to find (or make) a discussion about men.

    In this case, I interpret Ken's posting about supporting two women who spoke out about sexual harassment as creating a space in which support for the two women in question is the main point. In other words, a "[space] (feminist or otherwise) in which the topic is specifically focused on women’s issues."

    She goes on:

    But let’s look at it from my perspective. I have been an active participant in the feminist blogsphere since 2005, but have been a reader since the early 2000s. I have seen multiple threads on women’s issues — especially ones that are trying to talk about the impact of rape and other sexual violence against women — devolve into nothing more than justifying to MRA’s, trolls, and other (generally male) posters why the conversation should be allowed to remain about women’s experiences. It was to the point that on my (heavily moderated) blog, I still had to write a disclaimer on the top of my post on women and equality that the post wasn’t about men because practically every other comment I was getting was saying how unfair it was that I didn’t talk about men. The phenomenon is so common that I co-authored a jurisimprudence law called The “What About the Mens?” Phallusy * because I felt like you couldn’t even mention the word “rape” without attracting people demanding that you talk about men getting raped.

    So I completely understand why JacylnF and other feminists have no patience for even the well intentioned [What About The Men (WATM)] comments because, frankly, I don’t have patience for them either. One thing I always try to impress upon the curious non-feminists who find my blog is that it isn’t about just one comment, but rather about a long and continuing history of WATM comments preventing meaningful discussion on women’s issues.

    Source for that post: http://finallyfeminism101.wordpress.com/2007/10/18/phmt-argument/

    BTW, you are correct that I don't have a degree in psychology… but both of my parents do, and my dad was on the doctoral track for a while and was teaching the subject during my early childhood. So, the textbooks were lying around. I went through at least half-a-dozen majors before I finally settled on one long enough to complete the degree requirements; I never even considered psychology.

    My point was not to say "you know nothing about psychology" or "my expertise is better than yours"; my point is that I've been through classes where we talked about the gravity that conversations about mental health should be approached with, and that what you had offered was not it.

    Now, to the important part of your comment.

    Let me tell you a story. I went through a rough divorce (you're shocked by this news, I'm sure.) There was no dispute over money, or property. The ONLY contentious issue was child custody. Now, let me make clear that to any neutral third-party observer, it was in "the best interests of the child" to stay with me. I realize you may have trouble believing it, but you'll have to take my word for it.

    (Stopping to note that I have no trouble believing this; women are not, contrary to popular belief, automatically the ones who should get custody.)

    Objectively, my first priorities involved protecting my daughter's interest, and my ex-wife's did not. So, to pick up our story, she left, leaving myself and my daughter behind. THEN, I filed for divorce, and asked for child support, and my ex-wife suddenly remembered how much she would prefer to have custody. I do not imply that these are related, although I certainly inferred it myself.

    So, one day at about 10:00pm I get informed, by phone, that I need to be at the courthouse at 8:00am the next morning. She'd filed an ex-parte motion for emergency custody, claiming (meritlessly) a wide variety of acts that summarize as "unfit parent". I had no opportunity to defend myself; the judge ruled against me, and my daughter was removed from my custody based on my ex-wife's claims and supporting affidavits from her friends and friends of her new romantic partners, most of who I'd never met (yet they were somehow able to comment on my parenting).

    My daughter was taken from me, on the basis of false accusations (supported by "evidence"), and I had no idea when or if I'd be able to regain custody.

    The earliest I could ask for a rehearing was two weeks, at which point, prepared this time, I was able to factually dispute the false claims made against me.

    I can only imagine how harrowing those two weeks were for you. And I'm sure that, given that she was willing to lie to the court, she was probably willing to smear you to your daughter as well. I'm equally sure that you were aware of that possibility and thinking about this the whole two weeks; meanwhile you had to avoid any action that looked hostile because it could seriously damage your later case for custody.

    Sitting at home on your hands while your wife celebrates the fact that she was able to turn the court against you so she wouldn't have to pay any money, all the while merrily neglecting (at best) or abusing (at worst) your child: horrific and soul-crushing. I do get that.

    The emergency custody order was rescinded, and when the divorce case was heard, I was awarded sole legal and physical custody. However (stop me if this sounds familiar!) nothing was ever done about the perjured affidavits filed in the emergency custody hearings. Nobody was ever held to justice.

    And this was wrong.

    This is where I'm coming from. Nearly every discussion about things that affect women is, in my experience, immediately derailed to talk about things that affect men; and the derailment makes it impossible or next to impossible to talk about women's issues.

    So, imagine for a moment that you're reading a blog that's actually seriously talking about false allegations in child custody battles and how courts tend to rule against men and give men less child support. Unfortunately, when you go to the comment thread, a woman who had some seriously bad experiences has left a lot of comments talking about her own experiences with a deadbeat dad. This has caused the thread to turn from the original topic into a debate about deadbeat dads.

    The entire point of that person's post seems to be "deadbeat dads exist and suck, and as the child custody system gets challenged more and more it's harder for women who should get custody to actually obtain custody" which nobody is arguing against, but at best it's not relevant to the conversation at all and it has caused the entire thread to become about this woman and this woman's experiences instead of allowing the conversation to be about the original topic, which is important and exciting to you (yes! finally! someone who GETS it!).

    Imagine that there are some women who have had no objective experience on this subject who regularly come into these discussions and use this argument as a thin justification for upholding the status quo, i.e. women get custody by default unless the father is willing to both fight like hell and be a saint at the same time. In essence, saying that because women who deserve custody and men who just want out of child support exist, men should be glad that they're allowed to fight at all and shut up and pay their alimony and child support when it comes due.

    Now imagine that one of these two types of commenters show up no matter where you have this conversation, unless someone is a) standing ready to delete comments that go into that territory and ban the people who start them or b) willing to say, "You know what, we're not talking about that right now" until the conversation can be re-established.

    My opinion is that women who want to talk about deadbeat dads in the comments section of a blog post talking about a specific man's experience of being falsely accused and having his child taken away should go and make their own posts detailing their experiences and how they relate to the topic. In that situation, it does not matter whether a woman has had a objectively horrific experience that she NEEDS to talk about. It does not matter whether she was totally unaware of this trend and just felt like talking about what came to mind when she saw the topic.

    She should not be allowed to dictate the entire course of the conversation, particularly in light of the fact that there are actual men in the thread who have gone through false allegations who would like to talk about their experiences instead of catering to her needs. Her single objectively bad experience does not mean that she is justified in continuing a persistent pattern of women demanding to have the conversation center on them, their experiences, and their pain; and this is even more true when the women in this case have the privilege and power on their side (which they generally do, when it comes to custody battles).

    So I will only wrap this section of my comment up by saying that I have never seen a case of a woman talking about sexual harassment where she was allowed to just talk about it and not justify that she was not to blame, explain why she did not act in a certain way that commenters insisted she should have acted, and explain why the space was not welcome to talk about how men have to deal with false allegations of sexual harassment. Elise's account has at least come the closest I've ever seen, and it was because she had credible witnesses on her side and refused to give her own personal account, only noting that "he did the behavior; reasonable third parties agreed the behavior was egregious." There were still people who questioned her, but there were fewer, thankfully.

    Neutral parties (but not the court) see perjury.

    James entered a space where women have the privilege, and he had the experience of the privilege working against him. It's tempting to say, "But it must not have been perjury, because the system doesn't have that kind of problem in general" but that doesn't apply here. The system is biased towards women when it comes to child custody, so to me it's not shocking to hear of an emergency ex parte petition that is granted without the court considering evidence on the father's side.

    Also, if James's lawyer was worth anything, he probably strongly advised that James just drop any perjury suit against his now ex-wife because there was a risk that he would be seen as the vexatious one and lose the next custody challenge.

    I firmly believe that who has the privilege in this situation should be considered when talking about issues such as this.

    It's my inclination to consider the tempting possibility that this could be just a tragic misunderstanding between the two parties, but what James is saying points against that. It's also a very understandable inclination to want to see evidence that what James is saying is true, but frankly he had the deck stacked against him so I don't really need to see it to be able to believe that the scenario is plausible. I'm sure he gets enough disbelief as it is, because men who seek custody generally do; and I don't want to add to that.

    Considering who has the privilege in a given scenario is, to me, a fundamentally important thing to do; because if you're a woman and you hold the privilege for child custody, your gut instinct is going to be to justify how your point of view on custody is fine the way it is because that's just kind of how privilege works. For the person who has it, it's invisible. So it's important to make a point of saying, "I hold the privilege. I need to listen to the person who doesn't hold the privilege talking and take some time to consider what they're saying before coming to a decision." If you're a man coming into a thread about sexual harassment, just please do us all a favor and say to yourself, "I hold the privilege. I need to listen to the person who doesn't hold the privilege talking and take some time to consider what they're saying before coming to a decision."

    I'm exhausted, so I may or may not come back to continue talking in the thread. I'll read comments but I may be done. (Just a fair warning.)

  290. Clark says:

    @Kat

    @Clark: What you're referring to is often called the tone argument.

    Shrug. OK. Sounds to me like an academic wankery, giving it a name and taxonomy, but maybe that's useful.

    There are certainly combinations of these where anger and even vitriol is not only appropriate, but necessary.

    Necessary to who? To the speaker, to make him or her feel witty and clever? Or to the audience, to persuade them? In my experience, it's almost always the former.

    I have been known to send a fairly
    pointed response or two to a blogger or company rep. However, usually
    when I do that, I know I have little hope of persuading the person

    So using phrases like "drink a shutthefuckupachino" are not intended to be effective, but…what? Make you feel better?

    I might hope to impress on them that their words or actions have genuinely upset me

    I think that this is the core of the disconnect. I do not care if my words upset you, and I find it puzzling that you would either want me to know, or would expect me to care.

    a secondary audience… will be galvanized.

    This sounds like an untested hypothesis, at best, or self-justifying nonsense at worst.

    So when someone says that they’d have listened if I’d just been nicer, I can just shrug and think, “no, you wouldn’t have,”

    I listen to good arguments and facts. By the time someone is telling me or another reader to "drink a shutthefuckupachino", I don't really expect that the person saying that has either
    good arguments or facts.

    Regarding my specific motivations in this instance: in my opinion, it's fairly easy for a reasonable person to see someone pulling a tactic like gaslighting

    "Gaslighting" is one of something that I've seen about a hundred times more often in feminist ranting than I've seen in actual practice. Most of the time when it gets deployed, I think it's a code word / feel-good-phrase for "feminists asserts X; other person disagrees and laughs at X; feminist feels disrespected and calls other person on it; other person says 'yes, I disrespect arguments that are incoherent'; feminist says "I know that I am a special snowflake, and because you do not disagree and have an alternate view of these events, you are gaslighting me".

    In my experience it's a plea for special consideration and an attempt to delegitize the other side's ACTUAL arguments and an attempt to head off into a meta-topic.

    and just sort of gloss over it, because it happens so much and is so normative in our culture.

    The word you want here is "normal" meaning 'common'; "normative" (which means an 'ought' statement).

    So yes, I believe saying *cue giant f-ing eyeroll* is important

    I understand.

    And I think calling people out who use snarky emotional language like that instead of making rational arguments is important, because it helps to focus people on IDEAS instead of the mean-girl social status posturing that
    phrases *cue giant f-ing eyeroll*

    because it draws attention to the behavior being objectionable and not at all cool. Even if it irritates the person who receives the eyeroll.

    I think it mostly marks the speaker as emotional and snarky. Good arguments are good arguments, and they take intelligence and self discipline. Snark takes…what? Social awareness? Emotion?

    I'm deeply unimpressed with snark, and suspect that it's used a lot because it's easier than thinking.

    If somebody says to me, "You're crazy for having those feelings/expressing them this way" as shorthand for "I disagree with you," and we both agree that doing this is wrong and bad behavior, in my opinion it does not follow that I must turn around and be nice to this person or it means I have Bad Motives.

    No, you need not. You can just fling poo at them. However, when asked to judge between the person making good arguments, even in the face of adversity, and the person flinging poo, I'll always spend time listening to the person making good arguments and I'll (almost) always disregard the snarkster.

    My motives are to shut that abusive behavior down as quickly as possible.

    "Shut it down" ? You don't shut it down. You just join the pig in the mud. Which makes it hard for outside observers to tell who started the mud fight. And, in the case where you used "shutthefuckupachino", I thought it was you who started mudslinging.

    I don't particularly care if I'm hurting someone's feelings or convincing them I'm right at that point.

    I can respect that. So what are you achieving? Making yourself feel good and/or powerful? Anything else?

    The process of acculturation and/or child-raising is one where we try to teach the young that effectiveness is more important (at least in our society) than emotional acting out.

    I will finally note that I disagree with the general stance that saying "I want you to stop talking about this" is inherently wrong

    I think the stance is right. If you don't want to hear someone talk about something, plug your ears or leave. When you tell someone here at popehat to shut up, you are trying to chill discussion and the exchange of ideas, and I have very little respect for that.

    when the Patriot Guard Riders showed up and began counter-protesting against the Westboro Baptist Church, I was one of the ones cheering

    Great. I'm all in favor of meeting speech with more speech. Which is why I dislike "shutthefuckupachino".

    In case you aren't familiar, the PGR basically come to the WBC's strikes with their motorcycles, form a barricade, and rev their engines so that the WBC members are completely drowned out.

    Ah. Seems like I spoke too soon.

    So you're not in favor of speech; you're in favor of censorship, brute force, and the rule of the mob.

    When I started this response I had a mediocre amount of respect for you.

    Now that you have clarified your stance, I have almost none.

    So here is my point: while I'm fine with discussing the acceptability
    of telling specific people in specific contexts that their speech is
    unwelcome

    Unwelcome? Here? Perhaps you should let Ken decide what's acceptable and not in his living room. I don't think he's asked for your help.

    I'm personally not fine with saying "you can never tell anyone to shut up period."

    And, yet, the phrase "shutthefuckupachino" was introduced by you. Curious.

    I suspect that this is an irreconcilable difference and that you and I are going to continue to disagree no matter what, and we can probably avoid a whole lot of arguing by acknowledging that.

    I believe in free speech. You have the grubby little soul of a censor who wants other people to shut up, not just in your living room, but in every living room.

    So noted.

  291. James Pollock says:

    "So, imagine for a moment that you're reading a blog that's actually seriously talking about false allegations in child custody battles and how courts tend to rule against men and give men less child support. Unfortunately, when you go to the comment thread, a woman who had some seriously bad experiences has left a lot of comments talking about her own experiences with a deadbeat dad. This has caused the thread to turn from the original topic into a debate about deadbeat dads."
    Is your theory that this is supposed to make me angry in some way? Why would it? People talk about what they want to talk about.

    "She should not be allowed to dictate the entire course of the conversation"
    Can you not see that this is exactly what you're trying to do?

    "I have never seen a case of a woman talking about sexual harassment where she was allowed to just talk about it and not justify that she was not to blame, explain why she did not act in a certain way that commenters insisted she should have acted, and explain why the space was not welcome to talk about how men have to deal with false allegations of sexual harassment."
    And? Any contentious topic brings out a variety of responses, some rational, some not; some supportive, some not; some on-topic, some not. People talk about what they want to talk about. It's the nature of conversation. When everybody is in fundamental agreement, the conversation stops because everybody is in agreement. Now, the disagreement that drives conversation doesn't have to be an angry one, for example, two people who admire Stanley Kubrick's film-making may disagree about their favorite ones, with some advancing Spartacus as the best, others suggesting 2001, others suggesting Full Metal Jacket, and one guy in the corner holding out for Eyes Wide Shut. They all agree that Kubrick was a great director who made great movies with great casts and great technical skill… but settling that in a room full of Kubrick's fans take about 5 minutes. If you want anything to talk about, you need a different topic that what everyone agrees about.

    "Also, if James's lawyer was worth anything, he probably strongly advised that James just drop any perjury suit against his now ex-wife because there was a risk that he would be seen as the vexatious one and lose the next custody challenge."
    A few misperceptions here:
    1) I was pro se, which is Latin for "unable to afford a lawyer".
    2) You don't sue for perjury, it's a criminal charge, so the state has to bring it. I certainly might have had a case for libel, but A) still unable to afford a lawyer, and B) the defendant was almost certainly judgment-proof, and C) proving economic harm (one of the elements of libel) would have been very difficult.

    I'll also note two other humorous anecdotes from my experience on this topic. The first, of course, was the judge retroactively putting the court into recess so he wouldn't have to hold her in contempt after she invited him to "bite me" when the ruling didn't go her way, and secondly, the clerk pushed the panic button so a couple of Sheriff's deputies showed up about 2 minutes later, crowding around my table; they had to be redirected.

    You insist on seeing this as a gender issue, but I don't. I'm opposed to the creation of new innocent victims to redress the sufferings of past victims: For a non-gender example, During WWII, Russia was invaded and sustained horrific losses… but that doesn't justify the repression of Eastern Europe for two generations.
    People who have anger but cannot reach those who they are angry with unfortunately tend to turn that anger towards those they CAN reach. Counseling restraint to the angry is no path to popularity, particularly not to the righteously angry, but it must be done to avoid injustice. When the mob of peasants is gathering pitchforks and torches to confront Dr. Frankenstein, suggesting that they make sure to surround the right castle is not at all the same thing as defending the monster. Most of the mob members recognize that once they've had a chance to cool down.

    Finally, maybe, just maybe, the fact that the same complaints surface in every discussion of women's issues (I'll take your word for it) indicates not some giant conspiracy to silence people from talking about "women's issues", but is rather simply a rejection of the attempt to segregate "women's issues" from "men's issues" when both are "people issues" that are deeply intertwined.

    As was noted last time, BOTH men AND women suffer when women are deeply annoyed by the behavior of a few at geek-culture events and conventions. Both are affected by false accusations of wrongdoing, and the challenges of recovering from false allegations.

    Plus, of course, there is the fact that although most complaints flow one direction, they can flow the other… men can be harassed, and can make false accusations.

    So, if you want to note that complaints of harassment have been ignored, questioned, ridiculed, or just generally not taken seriously, I agree. If you advocate for a world in which complaints are taken seriously, investigated carefully, and the guilty punished in accordance with the wrongdoing they have committed, so do I (although the mechanism(s) to arrive there we advocate for may differ.)
    But, if you want a world where only one viewpoint is available for discussion, I disagree most strongly about THAT. Just as you (rightfully!) claim your right to NOT be silent about the injustice, past and present, real and hypothetical, that you perceive, so do I. I say to you, do NOT be bullied, but also, do not bully.

  292. James Pollock says:

    Kat: "I'm personally not fine with saying "you can never tell anyone to shut up period."
    Clark: "And, yet, the phrase "shutthefuckupachino" was introduced by you. Curious."

    I think you missed the double negative, Clark. Being not fine with saying you can never say (x) works out to being fine with sometimes saying you can say (x), which accords just fine with saying (x).

    The actual irony is you suggesting a timeout for saying (x), which is an uneasy blend with free speech.

    That said, I strongly suggest that if Ken waded into this in the interest o protecting his living room furnishings from all the mud, he'd tell us both that we're partly right, partly wrong, and stupid to continue, and he'd be right on all counts. For some reason, he'd rather write about Wagner. Go figure.

  293. Unimaginative says:

    Ken: Isn't it interesting how, whenever somebody posts something about sexual harassment anywhere on the internet, the comments explode in disproportionate and unrelated anger?

    Commenters: Yes, it certainly is! Let us demonstrate your point!

    (almost a thousand comments later) Ken: Okay, point proven. Thread closed.

    (a few days later) Ken: Just so everybody knows, I support this (female) person who was verifiably harassed at a convention.

    Several commenters: But WHYYYY? It's not FAAAIIIIIR!!!

    MRA-ish commenters: Let us list several reasons why it's ever so much more important to talk about how some hypothetical men could, potentially, be subject to statistically improbable false accusations if women are permitted to talk openly about a currently extremely common thing they are subject to every day of their lives.

    Feminist-ish commenters: your reasons are silly, and trivialize real, serious problems that women, and some men, suffer with.

    MRA-ish commenters: pipe down, ladies, men are talking about manly things in a manly thread.

    Kat: I shall now clearly and eloquently explain why I object to being silenced in this manner, and express my frustration that it's happening HERE TOO, just like it is everywhere else in the internet.

    Clark: Tut-tut, missy, you're being rude and used a bad word.

    James: I would like to reiterate that it's more important to talk about MY issue featuring a bad woman than to talk about bad things women experience, even though that's the subject of this thread.

    Kat: I apologize for being snarky. However, here is why I expressed myself that way, and let me try again to express why these VERY COMMON METHODS of silencing women are VERY COMMON and very frustrating to me.

    Clark: Well, shrug. Even though there is snark all over the place in this blog, it's just too much to expect me to tolerate it from you. And WBC should be allowed to spew horrible shit all over grieving people, but you certainly shouldn't be allowed to express frustration about the treatment of women in a blog post about the treatment of women. I've lost all respect for you.

    Me: Sigh.

  294. Ken White says:

    Frankly I am concerned that women will be subjected to false allegations of using rude language by men who have been encouraged by the culture to be just oversensitive. What kind of due process can women expect in the face of false allegations of rudeness, given the wopenis culture of bro-shirt tight-knighting by other women who will rush in to gain favor with the men. And really the complaints of rudeness are ridiculous and anti-scientific, and try to criminalize women's natural inclination to be rude. Ultimately I think it is the men's fault for not taking that responsibility to communicate sufficiently each time they find something rude. Women aren't mind-readers. Some are just socially awkward. Why do you discriminate against them?

  295. James Pollock says:

    "to talk about bad things women experience, even though that's the subject of this thread."

    "the purpose of this post is not to discuss that incident, or the nature of the conduct that led to the report."

  296. Ken White says:

    Yes, James, I sure appreciate how fastidious you've been about that.

  297. James Pollock says:

    "Yes, James, I sure appreciate how fastidious you've been about that."

    Not counting the dozen times I wasn't?

  298. Clark says:

    @Unimaginative:

    Kat: I shall now clearly and eloquently explain why I object to being silenced in this manner, and express my frustration that it's happening HERE TOO, just like it is everywhere else in the internet.

    a) Kat hasn't been silenced here.

    b) When something (e.g. Kat's opinions not being respected) happens everywhere, one should look at the common element.

    Clark: Tut-tut, missy, you're being rude and used a bad word.

    I realize you're painting with a broad impressionistic brush and I respect that, but I didn't remotely say "Missy", or anything like it. I told Kat that telling another commenter to "drink a shutthefuckupachino" was not the marketplace of ideas.

    I stand by that.

    Kat: I apologize for being snarky.

    She apologized? I missed that. What I saw was doubling down: "I act out and fling poo because other people have opinions I don't like."

    However, here is why I expressed myself that way, and let me try again to express why these VERY COMMON METHODS of silencing women are VERY COMMON and very frustrating to me.

    You're making exactly one of the points I alluded to earlier: some feminists have very little tolerance for anyone disagreeing with them or calling them on their tactics, and refer to disagreement and open debate as "silencing".

    Clark: Well, shrug. Even though there is snark all over the place in this blog, it's just too much to expect me to tolerate it from you.

    I failed to tolerate it? How? Did I ban Kat? Did I ask Ken to ban Kat?

    Or did I just tell Kat that her desire to censor people and use snark instead of argument instead of in addition to argument caused me to lose respect for her?

    (hint: the latter)

    And WBC should be allowed to spew horrible shit all over grieving people, but you certainly shouldn't be allowed to express frustration about the treatment of women in a blog post about the treatment of women.

    You're conflating two extremely different points.

    a) Yes, I said that WBC should be allowed to say horrible things, and anyone who tries to censor them is a censor.

    b) when did I say that Kat shouldn't be allowed to express frustration? The one thing that I took her to task for was failing to engage another commenter's argument and instead telling him to shut up. Kat can "express frustration" all she wants. She can even do it rudely and emotionally and juvenilely. It's just that if she behaves like a poorly socialized 8 year old, I will give her all the respect I normally give poorly socialized 8 year old.

    Feminists like to say that "feminism is the radical notion that women are people".

    Well, I'm treating Kat just like I treat every other adult:

    * I dislike censors
    * I dislike emotionalism in place of rationality

    I've lost all respect for you.

    Yep. I fully stand by that part.

    Me: Sigh.

    I sigh right back at you. I'm not sure why you're sighing at me, but I'm sighing at you for your one-sided summary of events, specifically your elision of the two key parts: Kat is a wanna-be censor, and Kat doesn't debate rationally.

  299. Clark says:

    @James Pollock

    Kat: "I'm personally not fine with saying "you can never tell anyone to shut up period."
    Clark: "And, yet, the phrase "shutthefuckupachino" was introduced by you. Curious."

    I think you missed the double negative, Clark.

    You're right; I did. I shouldn't have been surprised by Kat's telling people to shut up; if I'd read that sentence correctly I'd have seen that her trying to censoring people is explicitly part of her ideology.

    The actual irony is you suggesting a timeout for saying (x), which is an uneasy blend with free speech.

    Poor phrasing on my part; let the record show that I have never suggested that any commenter at Popehat be placed on either temporary or permanent ban. I was trying to use the phrase as a humorous place holder for "hey, you could chill out", but, yes, as is it reads weirdly. I'll try to remember not to use it.

  300. Mark - Lord of the Albino Squirrels says:

    When it comes to encouraging speech, I would think you might want to avoid conjugates of "chill" too.

  301. Careless says:

    Now, it seems that Frenkel may be going around blustering about suing Matthesen

    I'm probably not the only one who wouldn't have found Ken's OP so weird if this bit of information had been in it. He wrote that they hadn't received specific threats that he knew of, but not that he had heard of nonspecific (or any other type of) threats, so the whole post just seems out there.

  302. AlphaCentauri says:

    I missed checking in on this thread for a while. I'll just say that I learned more from Kat's posts than from most of the others in this thread, so ignoring all the opinions in them and paying attention only to "shutthefuckupaccino" is dismissive and insulting. Do you understand that a lot of women see what she wrote as enunciating feelings that have been bothering them but that they couldn't put into words? Do you notice who is supporting her and who is telling her she shouldn't use the f-word, despite the frequency with which the f-word is thrown around in Popehat comments?

    She said the words "shut up." She's not in charge here, so you don't have to do what she said. But she said what she honestly felt, and she put a lot of time into explaining why she felt that way. And you told her her feeling were too unworthy to be expressed. So who is telling who to shut up?