A Reminder: Douchebaggery Is Not A Zero-Sum Game

Law, Life

The best way not to feel nauseated when you analyze a free speech issue is to assume everyone involved is going to be an asshole. That way you may be pleasantly surprised.

Case in point: fashion dipshits versus actress dipshit.

On the fashion side: a clothing outlet called Kitson. Kitson's Twitter Bio reveals what they think of themselves: "Kitson, with a flagship store on hip Robertson Boulevard, is the favorite stop for many celebrities and the who's who in Hollywood." Now, I always have been and always will be in the bottom 10% in terms of fashion and hipness. But even I, in my dim and unfashionable Dockered state, can tell that Kitson is trying much too hard.

Kitson sells clothes, sort of. It sells clothes which, if your child wore them, you would be torn between feelings of shame and feelings of relief that you probably won't have to pay for college and will be able to afford that vacation home now. For instance:

Imagine that guy wandering into South Central with that hat.  Go ahead!  I'll wait here. . . .  I know, right?  Awesome.

Imagine that guy wandering into South Central with that hat. Go ahead! I'll wait here. . . . I know, right? Awesome.

Anyway, now Kitson is proudly selling clothes that hilariously reference drug use, for values of "hilarious" that equal "belabored, pretentious, and eye-rollingly needy":

Get it?  Get it?  Vicodin!  The drug!  I'm a rebel!  O Christ why don't my parents love me?

Get it? Get it? Vicodin! The drug! I'm a rebel! O Christ why don't my parents love me?

Kitson's clothes and their promotion thereof are part of a venerable fashion tradition of acting like an asshole to get attention. It's part of a contiuum of smug douchery that has featured things like Calvin Klein's "oh hai look child porn please notice me". Kitson defends it using typical pretentious and incoherent fake-artist drivel.

Some people are upset. Among them is Kristen Johnston, a fairly well-known actress. Johnston is upset enough to joke about committing physical violence against people who wear the shirts:

Get it?  Because imagining violence against people wearing shits with messages you don't like is funny.

Get it? Because imagining violence against people wearing shits with messages you don't like is funny.

This led Kitson, in a flurry of self-seriousness, to threaten to report Johnson to police:

@kjothesmartass Ms. Johnston do not threaten our customers. Please remove this threat or we will forward this to the authorities. Buy tee shirts, not drugs.

This, of course, is ridiculous. Ms. Johnston's joke may show she's unlikeable, but it's not a true threat, and therefore protected by the First Amendment. Nevertheless, Johnston deleted her tweet, and is now attempting to position herself as a free speech hero.

I hate everyone in this story. I hate Kitson. I hate banality-weaponizing designer Brian Lichtenberg. I hate Kristen Johnston, who thinks that joking about violence against t-shirt messages she doesn't like makes her a hero and free speech advocate. (Do I also hate her for being part of a knee-jerk War on Drugs culture that makes America the biggest jailer in the world? Meh. Not really. Kitson isn't anti-drug-war, Kitson is pro-look-at-me-or-I'll-die.)

However, they all get First Amendment protections. All of them. That's easier to determine when you don't come into the situation expecting to like anybody.

Last 5 posts by Ken White

56 Comments

55 Comments

  1. > banality-weaponizing

    Mr. White,

    I'm sure that this was intended as humor, but this is in hugely poor taste. Not only do we live in the post-9/11 word where everything has changed, but also The Patriot Act, and most recently Syria.

    We'd like to talk to you about this post. Please call us to schedule an appointment.

    You don't need to dial any particular number; just pick up your phone and speak into the dial tone.

  2. andyinsdca  •  Aug 28, 2013 @9:08 am

    I've come to the conclusion that there's no such thing as controversy, there's only marketing/advertising. For example, these 2 irrelevant twits are in some twitter fight over stupidity. I'd never heard of the company or the person in question, but here you are giving them free publicity. This twitter fight will probably also make one of those stupid entertainment shows (TMZ?) granting them both more free advertising. You'd be better off deleting this post and praying to whatever deity you believe in for forgiveness for participating in their douchebaggery and free advertising.

  3. Dan  •  Aug 28, 2013 @9:14 am

    Among them is Kristen Johnston, a fairly well-known actress.

    Correction: Among them is Kristen Johnston, a C-lister-at-best who played a supporting role on a single NBC sitcom 15 years ago. You'll need to click on this IMDB link to remember who the hell she is. a fairly well-known actress.

    Or at least I had to click on the link, and that was even after looking at that Twitter profile picture.

  4. Anton Sirius  •  Aug 28, 2013 @9:18 am

    Umm, Johnston's tweet wasn't coming from a "rah-rah drug war yeah!" place, but an "I'm a recovering addict" place. She's been very outspoken in her criticism of the War on Drugs and the way addiction and addicts are treated in this country.

    Basic research fail.

  5. Angstela  •  Aug 28, 2013 @9:20 am

    Man I just loathe the phrase "zero sum game". It's right up there with "litmus test" in the all-time annals of banality. But don't worry — doesn't make me want to push anyone into traffic, I suppose.

  6. Jaybird  •  Aug 28, 2013 @9:20 am

    I was disappointed when I heard about these shirts because I was kinda expecting them to have a shot at being kinda cool.

    "Weed", perhaps. "Grass" in a retro font. "Marijuana" (for pedants). As it turns out, the shirts were all for pills. Xanax. Adderall. Vicodin.

    Kids these days don't even do drugs right.

  7. Zack  •  Aug 28, 2013 @9:29 am

    Well, there's no mandatory minimum for prescription drug abuse, so they might be doing it better than you think. XD.

  8. Ken White  •  Aug 28, 2013 @9:30 am

    Umm, Johnston's tweet wasn't coming from a "rah-rah drug war yeah!" place, but an "I'm a recovering addict" place. She's been very outspoken in her criticism of the War on Drugs and the way addiction and addicts are treated in this country.

    Basic research fail.

    That kind of nuance gets lost when your approach to a drug reference is to joke about pushing people into traffic. Johnston has chosen to frame her response to Kitson in a way that is largely indistinguishable from "Think of the Children!" anti-drug rhetoric. That fact that she knows better makes her behavior that much more self-indulgent.

  9. David  •  Aug 28, 2013 @9:56 am

    Of course I agree it wasn't a true threat, I also don't think it was particularly offensive (i.e. legalities and free speech aside). I was expecting something really bad from the opening of the post!

    Actors, comedians, sports starts tweet more offensive stuff all the time without much if any public comment.

    Quaere, does the fact the tweet originates from a handle incorporating "smartass" make it more clearly a joke (or at least an attempt at a joke) and not a true threat?

  10. princessartemis  •  Aug 28, 2013 @9:58 am

    You made me click on Brian Lichtenberg's Twitter to figure out who he was in this. Now I need to take a shower and scrub my eyeballs with steel wool to get the gross off. "Cúntie" shirts? Blecchh.

  11. Duvane  •  Aug 28, 2013 @10:02 am

    I came to this blog because I'm a [fan of]/[agree with] Dipshit X. Because you attack both sides of this, you're clearly an apologist for Dipshit Y, defending them by damning with faint praise, promoting them by writing an article about them, disingenuously hiding behind neutrality.

    I want my money back.

  12. Anton Sirius  •  Aug 28, 2013 @10:16 am

    "Johnston has chosen to frame her response to Kitson in a way that is largely indistinguishable from "Think of the Children!" anti-drug rhetoric."

    Well, I think her tweet was indistinguishable from random twitter nonsense in response to something someone doesn't like… I don't believe jokes about pushing people into traffic is a drug war crusader shibboleth.

    That said, if your only point of reference was the twitter exchange you jumped in on, I can see where the confusion came from.

  13. jackn  •  Aug 28, 2013 @10:22 am

    In a world, where printing on pre-made clothes is considered fashion……

  14. Pat  •  Aug 28, 2013 @10:25 am

    "Nevertheless, Johnston deleted her tweet, and is now attempting to position herself as a free speech hero."

    A true free speech hero wouldn't have deleted the tweet in the first place.

  15. Gabriel  •  Aug 28, 2013 @10:32 am

    TL;DR Sturgeon's Law is true of people [in the media | on the internet].

  16. Michael Donnelly  •  Aug 28, 2013 @10:35 am

    Wait, what was the middle thing again? I can't seem to get past the leather pants in the Vicodin jersey picture.

    Anyway, at least it's just a low-grade threat to bring in "the authorities" and not the usual action, reaction, double-down, and spirali—wow, look at those leather pants.

    Oh, fuck it.

  17. Luke G  •  Aug 28, 2013 @10:40 am

    @ Burntbum and Bowdick

    What, were Spc Agents Messrs Croup and Vandemar busy?

  18. bralex  •  Aug 28, 2013 @10:47 am

    Agents Stone and Town were busy too…

  19. Warren Vita  •  Aug 28, 2013 @10:58 am

    …people wearing shits with messages you don't like…

    This typo is hilarious…although given the line of clothing being discussed, it's not really too far off.

  20. NickM  •  Aug 28, 2013 @11:08 am

    Is it violence against people for the message on their t-shirt, or violence against people who have shown themselves to be too douchey to be allowed to breed?

  21. Maria  •  Aug 28, 2013 @11:24 am

    I came to this blog because I'm a [fan of]/[agree with] Dipshit X. Because you attack both sides of this, you're clearly an apologist for Dipshit Y, defending them by damning with faint praise, promoting them by writing an article about them, disingenuously hiding behind neutrality.

    I want my money back.

    Typical X supporter.

  22. The Man in the Mask  •  Aug 28, 2013 @11:38 am

    Good lord, princessartemis, you're right.

    I must now find the scotch. Lots of it. Only with the cleansing power of alcohol will I be able to destroy the neurons in my brain that (even as I write this) retain those images.

  23. James Pollock  •  Aug 28, 2013 @11:40 am

    "A true free speech hero wouldn't have deleted the tweet in the first place."
    I don't know if that's absolutely true; one can come to regret what one has said but still claim a right to say it. A good deal of light and heat can be generated not by what was said, but by how it was said, and Lord knows people don't always carefully plan out how they say things in our modern, Internet-connected world.

    A good number of attempts at jokes that are poorly timed, poorly framed, or just poor can and should be retracted; this has no bearing on whether or not people should be free to make attempts at jokes.

    "I disagree with your message, so I hope you find dire misfortune, and might even help you find it" is a message that surfaces rather regularly. Meh. Who cares? (Unless, of course, it's someone wishing misfortune to ME, in which case I want it made into a federal case.)

  24. Richard  •  Aug 28, 2013 @11:53 am
    I came to this blog because I'm a [fan of]/[agree with] Dipshit X. Because you attack both sides of this, you're clearly an apologist for Dipshit Y, defending them by damning with faint praise, promoting them by writing an article about them, disingenuously hiding behind neutrality.
    I want my money back.

    Typical X supporter.

    Really? I thought it was a Y supporter, trolling.

  25. AlanMorgan  •  Aug 28, 2013 @12:05 pm

    @Gabriel – when it comes to the internet, Sturgeon was an optimist.

  26. C. S. P. Schofield  •  Aug 28, 2013 @12:12 pm

    I hereby propose The Popehat Law of Massproduced Wit;

    If you think you have found an insightful and witty comment printed on a mass produced t-shirt, you are almost certainly wrong.

    Funny? Possibly. Interesting? Also possible. Insightful AND witty? Unlikely.

  27. Renee Marie Jones  •  Aug 28, 2013 @12:17 pm

    The "free market" is always right, is it not?

  28. Chad Miller  •  Aug 28, 2013 @12:29 pm

    @princessartemis: The gratuitous accent marks on everything he does bother me most of all, for some reason. HOMIÉS? CANINÉ? FÉLINE? That last one is apparently almost right in French, but come on.

  29. Gabriel  •  Aug 28, 2013 @12:36 pm

    @Renee Marie Jones: "The "free market" is always right, is it not?"

    Well, the Left abandoned it, so I guess that made it Right by default… but then the Right became mercantilist, so that really doesn't leave the free market anywhere on the map except as a boogeyman to frighten young socialists with.

    What point are you trying to make, and why does it involve scare quotes?

  30. Shane  •  Aug 28, 2013 @12:36 pm

    … wearing shits with messages …

    @Ken, did Freud slip out of you?

  31. Shane  •  Aug 28, 2013 @12:38 pm

    @Renee Marie Jones

    The "free market" is always right, is it not?

    Command quota is a worse alternative, is it not?

  32. Agent Lynch  •  Aug 28, 2013 @12:40 pm

    Mr. White, please disregard the message from Agents Burntbum and Bowdick.

    They have come to realize that they do not have jurisdiction, and that my organization does. We will be flying by in approximately 30 minutes. Just step outside for a moment, please, and look up. Our equipment will take care of the rest.

    I assure you, you will thank us as we thank you for your patriotic duty to the homeland.

  33. Shane  •  Aug 28, 2013 @1:02 pm
  34. Sheriff Fatman  •  Aug 28, 2013 @1:21 pm

    @Luke G: turns out their erstwhile employer, previously missing believed gone very far away indeed, has resurfaced as the owner of a certain blue box, and they've gone to see him about payment for their last job (preferably in puppies, in the case of Agent Vandemar).

  35. CJK Fossman  •  Aug 28, 2013 @1:59 pm

    @anton sirius

    Umm, Johnston's tweet wasn't coming from a "rah-rah drug war yeah!" place, but an "I'm a recovering addict" place. She's been very outspoken in her criticism of the War on Drugs and the way addiction and addicts are treated in this country.

    I didn't do enough Googling to find her outspoken criticism of the WoD.

    I found out about her SLAMnyc project: "recovery based" high schools.

    I also found plenty of self promotion. But, hey, she's a celebrity. It's what they do.

    Also found this hysteria statistic: she claims 1 out of 5 US teenagers is a drug addict, except where she claims it's 1 in 3.

    So I give her a 1.5 out of a possible 10 on the Celebrity Hysterical Dipshit Meter.(tm)(patent pending)

    The 10 ranking, of course, goes to Jenny Garth + vaccinations.

  36. desconhecido  •  Aug 28, 2013 @2:19 pm

    The trademark owners should sue Kitson's ass.

    Surely using a trademark in order to sell t-shirts is not protected fair use, is it? Except maybe in Wisconsin.

    They could throw a little work to Charles the Internet Lawyer.

  37. ChicagoTom  •  Aug 28, 2013 @2:51 pm

    The 10 ranking, of course, goes to Jenny Garth + vaccinations.

    Jenny McCarthy is the anti-vaccine advocate.

    Jenny Garth was on 90210.

    Both are nice to look at, but are not the same person.

  38. CJK Fossman  •  Aug 28, 2013 @3:15 pm

    Chicago Tom

    Good Catch. My Bad.

    A helicopter was flying overhead when I typed that and I didn't have my tinfoil hat on.

  39. Basil Forthrightly  •  Aug 28, 2013 @3:57 pm

    Gotta agree with James for once; even a die-hard free speech advocate can have a case of the stupids and say something regrettable. And if the underlying technology allows deletion of a mistake, why not?

    Of course, a person with organs of robust gamete production would also apologize for a mistaken tweet, instead of slinking off and pretending they hadn't dropped a turd into the discourse.

  40. Rick H.  •  Aug 28, 2013 @4:21 pm

    Angstela: "Man I just loathe the phrase "zero sum game""

    Would you care to elaborate on that? I think "zero sum" a very serviceable concept that many people have never grasped. For example, a large percentage of the population assumes that respect for the freedom/rights of the "wrong" people means a diminishment of their own.

  41. Lucy  •  Aug 28, 2013 @4:52 pm

    According to the Daily Mail link Shane provided, Lindsey Lohan loves the new line.

  42. James Pollock  •  Aug 28, 2013 @7:20 pm

    "Command quota is a worse alternative, is it not?"

    Depends. For example, there are some drugs that treat problems that not enough people have to make it profitable to produce them in a free market. There are some areas around the insurance marketplace where commanding coverage affects the community and not just the insured. (Imaging a mill town, where 50% of the town's employed work at the mill, and the other 50% of the employed work in jobs that support the millworkers. What happens to the community if the mill burns down, and turns out to be un or underinsured?

    A free market is ideal when you're dealing in commodity goods, barriers to entry are low, and market demand is predictable. When these factors get iffy, so does the superiority of the free market.

  43. James Pollock  •  Aug 28, 2013 @7:33 pm

    "The trademark owners should sue Kitson's ass."
    For what, exactly?

    "Surely using a trademark in order to sell t-shirts is not protected fair use, is it?"
    Fair use in trademarks works substantially differently than fair use in copyrights. Trademark fair use covers the situation of I sell Ford car parts but I am not Ford; I can identify the parts I sell as Ford parts if they actually are Ford parts. Even if the parts I sell aren't manufactured by Ford, I say that they fit Ford vehicles, as long as I don't mislead customers into thinking that my "brand X parts for Ford vehicle Y, model years 2003-2011" are actually manufactured by Ford. It also covers the situation where I am a mechanic who specializes in fixing Ford automobiles, but I am not myself employed by Ford… I can refer to Fords as Fords because the ARE Fords.

    Trademarks apply to markings on goods which serve to identify their source. So I can attach a Ford logo to a car I built and try to sell it. The ownership of a trademark doesn't let you forbid anyone from using your trademark any time, in any way… it lets you forbid others from using your mark to identify goods as to source.
    That's why logos are copyrighted as well as trademarked. John Deere makes a substantial bit of cash licensing its copyrighted logos (for hats, shirts, toys, and so on). I doubt they license their trademark at all.

  44. James Pollock  •  Aug 28, 2013 @7:43 pm

    "I think "zero sum" a very serviceable concept that many people have never grasped."

    The concept is fine, but if you ask 100 strangers on the street what "zero sum game" means, how many will give a correct answer? (If you say more than 20, I think you're being optimistic, unless you're standing outside a gaming convention at the time.)

  45. Steven  •  Aug 28, 2013 @10:18 pm

    When I saw the headline, I was expecting a follow-up to the O'Keefe/Letten incident.

  46. Rich Fiscus  •  Aug 29, 2013 @6:57 am

    Trademarks apply to markings on goods which serve to identify their source.

    This is particularly relevant when the products are in completely unrelated markets. Even a moron in a hurry wouldn't confuse a shirt with a prescription medication.

  47. Shane  •  Aug 29, 2013 @7:11 am

    @James Pollock

    Sorry I didn't think that I needed to post a link. But sadly, Command and control economy.

  48. James Pollock  •  Aug 29, 2013 @10:44 am

    "Sorry I didn't think that I needed to post a link. But sadly, Command and control economy."

    Congratulations! You've proven that you've almost, but not quite, mastered high-school economics!

    For your next assignment, explore the difference between a "market" and an "economy", and why posting a link that defines an "economy" is both stupid and off-topic to a discussion of "markets".

    For bonus points, explain the differences between "free market economy", "planned economy", and a third entity of which you seem to have been previously unaware, "regulated capitalism".

  49. Randall  •  Aug 29, 2013 @12:59 pm

    "Weaponized Banality" is the name of my next band.

  50. desconhecido  •  Aug 29, 2013 @1:09 pm

    " Even a moron in a hurry wouldn't confuse a shirt with a prescription medication."

    So, a prescription drug maker does not have the right to control who gets to sell shirts displaying the drug maker's trademark? Wouldn't the hurrying moron tend to associate the writing on the shirt (Adderall, for example) with the prescription drug and be inclined to believe that there was an association between the drug maker and the shirt maker/seller?

    Those are the sorts of arguments made by lawyers for Starbucks when a Galveston, Texas bar owner attempted to market a beer called Star Bock.

    So, I don't know who would win or lose if someone created the Fred Flintstone Apple Sauce company and put the word "Adderall" on every jar, but the lawsuits wouldn't be frivolous.

  51. desconhecido  •  Aug 29, 2013 @1:18 pm

    "The ownership of a trademark doesn't let you forbid anyone from using your trademark any time, in any way… it lets you forbid others from using your mark to identify goods as to source.
    That's why logos are copyrighted as well as trademarked. John Deere makes a substantial bit of cash licensing its copyrighted logos (for hats, shirts, toys, and so on). I doubt they license their trademark at all."

    Ok, what happens if you go into business manufacturing douche bags and print, in large letters, "Charles Carreon Internet Lawyer" on each one. Setting aside the 1st Amendment questions such as parody/satire, would Charles have a case under trademark law? Doesn't a trademark owner have an interest in how the trademark is perceived by the public?

  52. James Pollock  •  Aug 29, 2013 @1:47 pm

    "Doesn't a trademark owner have an interest in how the trademark is perceived by the public?"

    That's a fairly new addition to trademark law generally called "tarnishment". It doesn't apply generally (it's very hard to make a tarnishment claim stick), but it would in your hypothetical.

    "So, I don't know who would win or lose if someone created the Fred Flintstone Apple Sauce company and put the word "Adderall" on every jar, but the lawsuits wouldn't be frivolous."
    Maybe, maybe not. The key metric is "likelihood of confusion".

    I only got a B in trademark law. I didn't prepare enough for the final. Hopefully, though, I've given you some starting points to look up your answers.

  53. barry  •  Aug 30, 2013 @5:44 pm

    I would imagine the drug companies would be happy to get their trademark on T-shirts for free. They're not the ones complaining.

  54. Fasolt  •  Aug 30, 2013 @7:25 pm

    From desconhecido's comment:

    "Ok, what happens if you go into business manufacturing douche bags and print, in large letters, "Charles Carreon Internet Lawyer" on each one."

    One thing that wouldn't be happen would be a case brought for false advertising.

  55. Fasolt  •  Aug 30, 2013 @7:34 pm

    Whoops. That last sentence in my previous post should have read:

    One thing that wouldn't happen would be a case brought for false advertising.

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