Author: Ken White

22

Follow-Up: U.C. Berkeley Chancellor Nicholas Dirks Gets Free Speech Right This Time

Print This Post

Last week I criticized an email from U.C. Berkeley Chancellor Nicholas Dirks that was either dangerously ambiguous or flat wrong about the scope of free speech.

Chancellor Dirks has just sent a follow-up email, probably prompted by the widespread attention from other blogs that aren't so off-putting and creepy as this one. From a tipster, here it is:

(more…)

45

Yale Might Want To Look Into Some Sort of Basic Civic Literacy Course

Print This Post

Ayaan Hirsi Ali is a very controversial figure: some revere her for her advocacy for women, some revile her for her extremely blunt and broad condemnations of Islam. Earlier this year Brandeis University joined the disinvitation craze and rescinded her honorary degree and speaking engagement.

Now she's been invited to speak at Yale. Predictably, some student groups are outraged. 35 student groups have signed a letter by the Muslim Students Association condemning Ali and asking that another speaker be brought in to provide balance (not unreasonable) and that Ali's speech be limited to her personal experience and professional expertise (completely unreasonable).

Yale is not a public entity and is not bound by the First Amendment. It's only bound by American values and by its stated commitment to free speech. But the Muslim Students Association doesn't think this is free speech:

[MSA Board Member Abrar Omeish '17] said that the group and their Islamic values uphold freedom of speech.

“The difference here is that it’s hate speech, [which] under the law would be classified as libel or slander and is not protected by the First Amendment. That’s what we’re trying to condemn here.”

The Yale Daily News lets that pass without comment.

But Abrar Omeish is wrong. Very wrong. First, there is no general exception to the First Amendment for anything called "hate speech." Such speech is clearly protected unless it amounts to a serious call for imminent violence. Second, you can't libel or slander a "race" in America. Under the group libel doctrine, the First Amendment protects statements that do not identify a specific person or persons. Moreover, hyperbole and statements of opinion (at least ones that do not include false facts about a specific person) are protected by the First Amendment.

Abrar Omeish's legal statement is incorrect. It's clearly incorrect to anyone with a passing knowledge of the subject. Its wrongness can be easily determined, as surely as if someone had told the Yale Daily News "women won't be a factor in this election because they don't have the vote." Oddly, though, the Yale Daily News lets the legal assertion go unchallenged. How difficult would it have been to get a quote from a professor at Yale Law? Since they don't do real grades there they probably have plenty of spare time.

In a way, this reminds me of the feckless "balance" of modern journalists who want to invite an Apollo 11 conspiracy theorist for every moon landing story they do. I have no problem with the Yale Daily News quoting someone in their incorrect understanding of the law. But when journalists don't take even minimal steps to find out what the law actually is, they are promoting civic ignorance.

Via Peter Bonilla.

193

U.C. Berkeley Chancellor Nicholas Dirks Gets Free Speech Very Wrong

Print This Post

This is U.C. Berkeley's Chancellor, Nicholas Dirks.

Oh hai let us talk "free speech" lol.

Oh hai let us talk "free speech" lol.

Yesterday Chancellor Dirks sent an email about free speech to Berkeley students, faculty, and staff. In today's competitive publishing environment it is astonishingly difficult to distinguish yourself as an academic by being wrong about free speech, but Chancellor Dirks is equal to the challenge. His email is so very bad on every level — legally, logically, rhetorically, and philosophically — that it deserves scrutiny.

(more…)

52

Did Sundance Vacations Forge A Court Order To Suppress Online Criticism?

Print This Post

Sundance Vacations would like to bill itself as a purveyor of wholesale and discount vacations. But on the internet, it is widely described as a sleazy hard-sell telemarketer selling sales presentations.

Companies are increasingly aggressive — perhaps belligerent is the better word — in defending their online reputation. There's evidence that Sundance Vacations has taken this trend to a new extreme through forging court documents in an effort to suppress criticism.

Matt Haughey has the story. When Sundance demanded that critical posts be taken down from Metafilter, and provided an apparent court order from Mississippi, Matt did something very rare and special — he exercised critical thinking. Matt noted discrepancies in the purported court order, crowdsourced a request to determine whether the case actually existed, and eventually did the legwork himself by calling the clerk's office. The result:

Today (Tuesday) I called a clerk in the Hinds County Chancery Court office. They asked me to fax them a copy of the court order so they could verify the document. I did as requested and a few hours later got a call back from the office saying it was not a real document from their court. The case numbers on the first page are from an unrelated case that took place last year. The clerk said they found a case from August 21, 2014 that used similar language but had different plaintiffs and defendants, but the same lawyers on page 3. In their opinion, it seemed someone grabbed a PDF from a different case and copy/pasted new details to it before sending it on to me.

Naughty, naughty, naughty. And so very reckless.

I've written to Sundance Vacations, a rep there who wrote to Matt before, the account that sent the court order this time, and Sundance's attorney of record on the order, asking them all for comment. I'm moving on to seek comment from the opposing lawyers in that apparently cut-and-pasted case. I'll report more if I learn it. Matt explains that the fake order came from a gmail account; Sundance may attempt to distance itself and deny responsibility for that account.

For now, Sundance Vacations is about to learn about the Streisand Effect. BoingBoing has picked up the story, and more will follow. And could there be consequences for using forged court documents in interstate commerce to suppress commercial criticism? Gosh, what an interesting question . . . .

Updated: On its Facebook page, Sundance Vacations confirms the prior email to Matt but denies it sent the recent one with the apparently forged documents, as predicted above.

NuhUH

24

Ares Rights, Bless Its Heart, Continues Bumbling Attempts At Censorship

Print This Post

Last summer I wrote about Ares Rights, a nominal "anti-piracy" firm that acts as a small-time legbreaker for various South American governments. When we encountered Ares they were trying to scrub discussions of Ecuador's spying practices through bogus DMCA notices. More recently Ares Rights abused the DMCA to suppress reporting on Ecuadoran corruption.

Now — because the internet is all about shoving everything up its own ass, as Jeff Winger would say — Ares Rights is sending out frivolous DMCA demands trying to silence discussion of its use of frivolous DMCA demands. Ares Rights responded to the Electronic Frontier Foundation's blog post about their abuse with, as Adam Steinbaugh reports, sending a DMCA notice demanding removal of the blog post. If that's not meta enough for you, now Ares Rights has issued a DMCA notice seeking to take down Adam Steinbaugh's blog post discussing their DMCA notice targeting the EFF's blog post discussing their prior DMCA notices.

It's not clear what Ares Rights hopes to accomplish. Their DMCAs will fail. This won't slow coverage. Trying to brush off the EFF or Steinbaugh with a DMCA notice is like trying to get a dog to stop humping your leg by petting it and feeding it bacon. Maybe they bill by the hour, even for patently ridiculous tasks? Maybe they are trying to convince their Ecuadorian masters that they are doing something, anything? Maybe they are just really very bad at their jobs? Stay tuned to find out.

Meanwhile, maybe you could go to their Facebook page and tell them what you think.

Edited to add: Ares Rights is deleting comments on their Facebook page, but they can't delete reviews here.

Adam Steinbaugh has responded to the DMCA notice.

59

Patrick McLaw, Skepticism, And Law Enfocement's Obliging Stenographers

Print This Post

Imagine a local news channel in a small city. The channel starts running stories fed to it by criminals, thugs, and n'er-do-wells. The stories are uncritical and unquestioning. "Local methamphetamine dealers report that their product is more reasonably priced and safer than ever," goes one report. "Consent: is it an unfairly ambiguous concept?" goes another. "A career burglar explains why alarms are a bad investment," goes the third.

Seems ridiculous, like something out of The Onion, doesn't it? Yet we endure the equivalent all the time — news stories that are indistinguishable from press releases written by law enforcement or government.

Take the story of Patrick McLaw or Maryland. Several writers are posing troubling questions about whether McLaw was suspended from his teaching job, subjected to some sort of involuntary mental health examination, and his home searched based on the fact that he wrote science fiction novels set in 2902 under a pen name. Jeffrey Goldberg explains:

A 23-year-old teacher at a Cambridge, Maryland, middle school has been placed on leave and—in the words of a local news report—"taken in for an emergency medical evaluation" for publishing, under a pseudonym, a novel about a school shooting. The novelist, Patrick McLaw, an eighth-grade language-arts teacher at the Mace's Lane Middle School, was placed on leave by the Dorchester County Board of Education, and is being investigated by the Dorchester County Sheriff's Office, according to news reports from Maryland's Eastern Shore. The novel, by the way, is set 900 years in the future.

Though I am generally receptive to believing the worst about law enforcement and local government, I was skeptical when numerous people emailed asking me to write about this. I suspected that more than two books were at issue. Subsequent reporting suggests that McLaw may have sent a letter that was the trigger of a "mental health investigation":

Concerns about McLaw were raised after he sent a four-page letter to officials in Dorchester County. Those concerns brought together authorities from multiple jurisdictions, including health authorities.

McLaw's attorney, David Moore, tells The Times that his client was taken in for a mental health evaluation. "He is receiving treatment," Moore said.

Because of HIPPA regulations mandating privacy around healthcare issues, he was unable to say whether McLaw has been released.

McLaw's letter was of primary concern to healthcare officials, Maciarello says. It, combined with complaints of alleged harassment and an alleged possible crime from various jurisdictions led to his suspension. Maciarello cautions that these allegations are still being investigated; authorities, he says, "proceeded with great restraint."

What's more, he told The Times, "everyone knew about the book in 2012."

We need more facts before we draw firm conclusions, but for the moment, I think there is reason to believe that the story may be more complicated than the provocative "authorities overreact to citizen's fiction writing" take.

But it is not at all surprising that people would leap to that conclusion. Two factors encourage it.

The first factor is law enforcement and government overreach. When schools call the police when a student writes a story about shooting a dinosaur, and when law enforcement uses the mechanism of the criminal justice system to attack satirical cartoons or Twitter parodies, it is perfectly plausible that a school district and local cops would overreact to science fiction.

The second factor is very bad journalism. The Patrick McLaw story blowing up over the long weekend can be traced to terrible reporting by WBOC journalist Tyler Butler in a post that was linked and copied across the internet. Butler reported McLaw's pen name as a sinister alias, reported as shocking the fact that McLaw wrote science fiction about a futuristic school shooting, and quoted law enforcement and school officials uncritically and without challenge. Faced with the bare bones of the story, any competent reporter would have asked questions: is this only about the two books he wrote? Was there a basis, other than fiction, to think he posed a threat? Are there any other factors that resulted in this suspension and "mental health examination?" Was the examination voluntary or involuntary? Is it reasonable to suspend and "examine" someone and search their home over science fiction?

Even if authorities refused to answer those questions, a competent reporter would discuss them. "Authorities declined to say whether any factors other than the two books led to the investigation," Tyler Butler might have written. Asking the questions and reporting on them might have restrained our temptation to believe the worst. Instead he gave us this:

Those books are what caught the attention of police and school board officials in Dorchester County. "The Insurrectionist" is about two school shootings set in the future, the largest in the country's history.

Journalists ought to ask tough questions of government and law enforcement, to present us with the facts we need to evaluate their actions. But too often they don't. Too often journalists run with law enforcement "leaks" without considering how the leaks impact the rights of the suspects, or asking why the government is leaking in the first place. Too often journalists allow themselves to be manipulated by law enforcement, not recognizing the manipulation as the important part of the story. To often journalists accept the headline-grabbing take rather than the less scandalous but more correct take. Too often journalists buy access with the coin of deference. Too often journalists report the law enforcement spin as fact.

That's why when a local news channel reports matter-of-factly that a man was detained and "examined" over science fiction, it doesn't occur to us to question the story. Just as it's entirely plausible that the government might do it, it's entirely plausible that journalists might report it without criticism, analysis, or apparent consciousness of how outrageous it would be.

48

Attorney Mike Meier Meets The Streisand Effect, Does Not Enjoy Experience

Print This Post

Attorney Mike Meier used to be only a little bit infamous. A few sites like Fight Copyright Trolls criticized him, painting him as someone who used to decry copyright trolling but then switched sides and became a copyright troll.

But those posts were relatively obscure.

Then Meier, whom one senses did not come to the law via rocketry, came up with a cunning plan: he sent DMCA notices complaining about blog posts criticizing him. There were several problems with these notices: (1) he sent them to the sites' registrars rather than their hosts, (2) he used them to complain about defamation, which is not covered by the DMCA, and (3) he complained about uses of his images that were clearly, on their face, fair use.

The natural and probable result of Meier's flailing attack was widespread infamy. His targets Fight Copyright Trolls and Extortion Letters ridiculed his hamfisted efforts. Those posts were picked up, and gleefully discussed, by far bigger sites including The Consumerist, BoingBoing, TorrentFreak, Techdirt, and others. The number of people who have read negative things about him has gone up by a couple of orders of magnitude. Some of the past unpleasantness he has experienced — like the time a federal court excoriated him in a sanctions order, or the time he stipulated to a reprimand by a state bar — have reached a far wider audience.

But Mike Meier's legal threat was not foolish just because it exposed his behavior to more readers. It was foolish because it exposed him widely as a fool. People hire lawyers they trust. They want to be able to rely upon their lawyer's advice, and to make difficult decisions based upon that advice. But who would trust the advice of a lawyer who would engage in a legal tactic that is so foreseeably self-destructive? If Meier had sent the DMCA notices on behalf of a client, I would call it rank malpractice and tell his client to consider suing him. In 2014, minimal legal competence requires an attorney to anticipate and understand the Streisand Effect.

50

Government Priorities: Compare And Contrast

Print This Post

Part One: The federal government funds a study to monitor bad political speech on Twitter:

The National Science Foundation is financing the creation of a web service that will monitor “suspicious memes” and what it considers “false and misleading ideas,” with a major focus on political activity online.

The “Truthy” database, created by researchers at Indiana University, is designed to “detect political smears, astroturfing, misinformation, and other social pollution.”

Part Two: The federal government ignores, for a generation, its statutory obligation to gather and report on data about excessive force used by law enforcement:

But in the 20 years since the law went on the books, very little has happened and no one's holding the AG or any of the law enforcement agencies below him accountable for the lack of input.

34

Patent Troll Landmark Technology Sues eBay For Challenging Its Patents; EBay Responds With Anti-SLAPP Motion

Print This Post

The nation's patent trolls, perhaps sensing increasing outrage about their parasitic practices, have grown more aggressive. They've increased (successful) lobbying efforts. Moreover, they've begun to resort to preemptive litigation — not just suing people for infringement, but suing people for contesting their trollish business model. This year saw one patent troll suing the Federal Trade Commission in an effort to halt its investigations, asserting that the troll's shakedown letters are protected by the First Amendment. The FTC's motion to dismiss is pending.

Thanks to tipster Jenny, I learned of another stunning example of patent troll aggression in Texas.

(more…)

97

"Atavistic Oncology" Doctor Develops New And Exciting Theories of Defamation Law

Print This Post

Dr. Frank Arguello is an advocate for an "atavistic" theory of cancer. What does that mean? Well:

Atavistic metamorphosis proposes that cancer cells are cells that have reverted, evolutionarily, to their ancestral, independent status as unicellular organisms. It is from there that cancer only occurs in plants and animals/humans (multicellular organisms). This also explains why cancer does not occur nor can be induced experimentally in unicellular organisms such as bacteria, fungi and protozoa.

(more…)

175

Sunil Dutta Tells It Like It Is About American Policing

Print This Post

Sunil Dutta, a "professor of homeland security" at Colorado Tech University, was an LAPD cop for 17 years. Today, the Washington Post ran his column explaining how citizens should interact with the police.

First, Dutta talks about the challenges cops face from rude civilians:

Working the street, I can’t even count how many times I withstood curses, screaming tantrums, aggressive and menacing encroachments on my safety zone, and outright challenges to my authority. In the vast majority of such encounters, I was able to peacefully resolve the situation without using force. Cops deploy their training and their intuition creatively, and I wielded every trick in my arsenal, including verbal judo, humor, warnings and ostentatious displays of the lethal (and nonlethal) hardware resting in my duty belt. One time, for instance, my partner and I faced a belligerent man who had doused his car with gallons of gas and was about to create a firebomb at a busy mall filled with holiday shoppers. The potential for serious harm to the bystanders would have justified deadly force. Instead, I distracted him with a hook about his family and loved ones, and he disengaged without hurting anyone. Every day cops show similar restraint and resolve incidents that could easily end up in serious injuries or worse.

Note how Dutta unsubtly conflates genuinely dangerous things — like threatening to set off a gas bomb — with curses, "tantrums," and "outright challenges to my authority." This sleight-of-hand miscategorization is how cops convince us they need the power to order us to refrain from gathering in one place to protest or put away that menacing cell phone or stop being developmentally disabled around them. See, cops know what is dangerous, and if you say they shouldn't be able to tell you not to do whatever they say is dangerous, you're really saying you should be allowed to set off gasoline bombs at the mall.

We are still learning what transpired between Officer Darren Wilson and Brown, but in most cases it’s less ambiguous — and officers are rarely at fault. When they use force, they are defending their, or the public’s, safety.

"Rarely" is an empirical term; Dutta does not cite evidence. Certainly cops are very rarely deemed responsible by the justice system for use of force. But a rather rather large number of people are killed by police every year; we don't know exactly how many, and we have no reliable resource to test law enforcement asserts that the killings are justified. Never mind lesser violence, like tasing and pepper spraying people, or things not classified as uses of force, like forcible torture and rape of suspects under the guise of "investigation," or situations where police got innocent people killed through idiocy.

But this is Dutta's main point:

Even though it might sound harsh and impolitic, here is the bottom line: if you don’t want to get shot, tased, pepper-sprayed, struck with a baton or thrown to the ground, just do what I tell you. Don’t argue with me, don’t call me names, don’t tell me that I can’t stop you, don’t say I’m a racist pig, don’t threaten that you’ll sue me and take away my badge. Don’t scream at me that you pay my salary, and don’t even think of aggressively walking towards me. Most field stops are complete in minutes. How difficult is it to cooperate for that long?

Note now nicely this dovetails with Dutta's first point. First, Dutta gets to decide what is dangerous and what he can order you to cease doing. Because gas bombs! Second, if you keep doing it, that's a tasing. Or a beating. Or a shooting.

Dutta's message is this: a cop can always tell you what to do, and you have to take it, or else. (The "else" is violence.)

We have a justice system in which you are presumed innocent; if a cop can do his or her job unmolested, that system can run its course. Later, you can ask for a supervisor, lodge a complaint or contact civil rights organizations if you believe your rights were violated. Feel free to sue the police! Just don’t challenge a cop during a stop.

This is either blissfully naive or breathtakingly dishonest. Do we have a justice system? By name, yes. Is it effective in deterring cops from abusing citizens or punishing them when they do? No. If you go and ask that supervisor to lodge a complaint, better have a lawyer's phone number, because you may get threatened and harassed. If you hope the cop will be charged criminally for misbehavior, you're going to be waiting a very long time for no result. When it comes to breaking the law, the system treats you one way and cops another.

But Dutta's rationales are mere window dressing. His core message is this:

Even though it might sound harsh and impolitic, here is the bottom line: if you don’t want to get shot, tased, pepper-sprayed, struck with a baton or thrown to the ground, just do what I tell you.

The outrageous thing is not that he says it. The outrageous thing is that we accept it.

Would we accept "if you don't want to get shot, just do what the EPA regulator tells you"? Would we yield to "if you don't want your kid tased, do what the Deputy Superintendent of Education tells you"? Would we accept "if you don't want to get tear gassed, just do what your Congressman tells you?" No. Our culture of individualism and liberty would not permit it. Yet somehow, through generations of law-and-order rhetoric and near-deification of law enforcement, we have convinced ourselves that cops are different, and that it is perfectly acceptable for them to be able to order us about, at their discretion, on pain of violence.

It's not acceptable. It is servile and grotesque.