Category: Effluvia


Dog's Best Friend

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In these parts, we're all understandably outraged about the War on Dogs, an apparent precursor to the rising police state. After all, we've befriended some of the cutest dogs on the planet.


It's only fair, then, that I give the copper his due. Today, I went to the public library. Following local custom, I had pulled through one parking spot and into the one opposite to set up an easy departure. In that space, I was flanked by an SUV on one side and a white minivan on the other.

After czeching out some language-related materials, I made my way to the parking lot. There, a police cruiser was parked laterally in front of my vehicle and the adjacent minivan. The latter's owner had left the building when I did. Ignoring me, the policeman intercepted that guy.

"License, registration, and proof of insurance, please."


"There's a dog in your vehicle. It might be 110 or 120 degrees in there. Your windows are up. His life is at risk. That's illegal."


They unsealed the door, and out popped the panting head of a large, goofy, loveable canine, none the worse for sweltering.

Nobody had parked behind my drive in the interim, so I backed up, drove around, and went on my way, wondering how this had come to pass, and feeling glad for dog's sake that it had.

Well done, Office X of the Y police force. Well done.


Jury Finds Jesse Ventura's Reputation Susceptible To Harm

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Professional wrestler Jesse Ventura, who fell upon hard times and was forced to lower himself to politics, has won $1.845 million today in a defamation suit against the estate of the late Chris Kyle.

Kyle wrote a my-life-as-a-Navy-SEAL book describing a bar brawl with an unnamed person during a wake for a fellow SEAL; he described this person as disparaging the United States, saying that SEALs deserved what they got, and later went down after one punch from Kyle. Kyle later stated publicly that the punchee was Ventura. Ventura sued, claiming that he didn't say those things and wasn't punched by Kyle. The jury — which heard the late Mr. Kyle testify on video — apparently believed Ventura and didn't believe Kyle. They awarded $500,000 for defamation and the rest for "unjust enrichment," apparently on the theory that Kyle boosted the book — and made $6 million on it — by leveraging the lie.

The legal issues presented are pretty straightforward — it's clear that Ventura is a public figure, and clear that the story Kyle told is a claim of fact that, if false, could be defamatory. For the most part, the parties sparred over whether the events happened, whether Ventura could prove they didn't, and whether Ventura could prove the statements caused him harm. Kyle's lawyers also argued that Ventura could not prove that Kyle acted with actual malice; this strikes me as a difficult argument, since it seems rather self-evidently malicious to lie about witnessing someone bad-mouth SEALs and then about punching them.

If you'd like to know more about the case, Kyle's late-in-trial motion for a directed verdict is here, and Ventura's opposition is here. They do a fairly concise job of stating each side's position and view of the evidence. In addition, here are the jury instructions the court gave, which show you what standard the jury applied in the event that it paid any attention to instructions.

I'm not a fan of Ventura. But I think that if Kyle made up a story about Ventura bad-mouthing SEALs at a wake, and made up a story about punching him out, that's defamatory. That's what the jury apparently believed. Some people think it's terrible for Ventura to pursue a claim against Kyle's estate after Kyle died. If, as Ventura suggests, Kyle leveraged the Ventura issue into $6 million in book sales, I don't share that view.



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So, if you're a grammar Nazi, then feats of form and usage that strike you as "wrong" (or inferior, or jarring) fairly leap off the page or screen at you in just the same way that my use of "so" at the start of this sentence irks all who are by now fed up with hearing that word abused that way.

The French have an expression for obvious things and especially for things obviously wrong: ça saute aux yeux! That leaps out at the eyes! Like an eye-attacking deathfrog of death. Or blindness. Or blinding obviousness.

Many folks notice deviations from canonical grammar and usage; the Nazi is the one who sees most or all, all the time, until she's fed up. She feels welling up within her an urgent, primal cry in behalf of the norms she has embraced, the quirky irrationales of the tongues to which she's wedded. The Nazi is the one for whom, involuntarily, cela saute aux yeux. Finally, with eggshell sensitivity to the descriptivists and positivists, she pipes up: "perhaps you should reconsider using 'begs the question' in that way." Then she ducks.

Have you been watching the newish BBC series Sherlock? I enjoyed the Holmes stories as a child but wasn't passionate about them. I enjoyed them again as an adult with the same result, but with an admixture of pity and contempt for the racism, sexism, inconsistency, and lack of complexity. I enjoyed them (despite these and other flaws) because they project a world and an ill-fitting inhabitant of that world, and they spark the imagination to consider how that combination might play out– a worthwhile exercise (especially for the logically inclined).

I grew up in a time when Basil Rathbone was the archetypal realization of Sherlock. And his bumbling Watson, who had so little to do with the character described in Doyle, was the archetypal moronic foil. I watched the fading films, but I wasn't married to that realization. Years later, I tried to watch Jeremy Brett's Sherlock– many consider it definitive– but couldn't stomach his interpretation. I didn't reject it because Rathbone; I rejected it because reading. That Sherlockian series aimed within a reasonable margin to be faithful to the canon, so Brett's Holmes is one reader's way of expressing what he found there. What he found, however legitimately derived, isn't what I had found.

The Sherlock of Robert Downey, Jr? Uhm… nice Wing Chun. And I haven't seen Elementary. And I skipped House. (See? Hardly a passionate Irregular.)

The BBC's Sherlock, now entering its fourth season, doesn't aim to stay faithful to the canonical stories; it aims to stay aware of them, and to show this, while re-envisioning the series in a contemporary setting. In this respect, its fidelity is like that of the more recent Battlestar Galactica vis-à-vis the less recent one. And it's brilliant. Often contrived, but then so were the Doyle tales. Sometimes hilarious, always well acted, often clever. Fragmented for the postmodernists, ironic for the Xers, savvy for the millennials. It's a lot of fun.

The show is, among other things, a fabric of in-jokes and allusions, some of them reaching forward within the reimagined world and some reaching out and back toward its Victorian antecedent. That the "Sign of Four" becomes the "Sign of Three" is reaching back; how it does so is reaching forward. That extra layer of literary texture provides a lot of the pleasure.

A recurring motif in Sherlock is that facts and inferences from them jump out nearly involuntarily at Sherlock. Cela saute aux yeux! And the show makes this clear in a medieval way, by literally overlaying text on the screen near the things he's observing. (Sometimes, the overlaid text is used for other purposes, such as making clear to the viewer what has just been texted to someone's device regardless of whether Sherlock knows that. This dual use of superimposed content would be interesting to study more systematically if you're looking for a dissertation topic….)

One respect in which this new Sherlock is enjoyable is that he's clearly superhuman; no mnemonist, no prodigy, no abductive reasoner would or could infer and calculate at the pace and in the ways that he does. He's a freak, and he's presented as a freak. ("Do your research! A high-functioning sociopath!"). And this offers another pleasure: in those moments when we, viewers entangled in the quotidian, draw a little inference from a telling detail in real life, we not only feel like Sherspock but participate in his condescension. We rise above our mundane capacity and attain a height from which to criticize (on eggshells). Having tested the tapir, we fling the femur. We enjoy, however briefly, the subtle pleasures of superiority, enforcement, and reproof. (Oxfordian in commas; Stratfordian in dramas.)

For example, we may read the clickbait article How to Fix Open Offices at Fast Company because we have an innocent interest in rolling back the horror. But as soon as we reach the second paragraphette, ça saute aux yeux: "Ferrigan's team ­creates 'enclaves' for collaborative working…" (emphasis added).

We try to proceed, but the solecism will not allow it– not until we've at least privately acknowledged the nature of the blunder, gauged its importance, and decided whether to intervene. Involuntarily, we recognize inferences about the writer that may be drawn with high probability: Didn't study Latin. Doesn't know roots. Mixes Latinate and Germanic irrespective of stylistic effect. Is insensitive to redundancy. Missed the 19th century. Was proofed, if at all, by someone with similar deficits. Doesn't care.

One after another, the phrases float up like on-screen annotations in Sherlock, and they hesitate near the eyes before dissipating. Id and Superego enraged, we begin to start to commence formulating a plan for intervention. Then the ego reels us in, and (wistfully waving farewell to the condescendible moment) we decide that the game that would then be afoot ne vaut pas la chandelle. It wouldn't be received well. Why waste illumination where it's not wanted? Pearls before Quine, but squirrels prefer pine.

Fine. Annihilate all stylistic norms. Wallow in your positivism. At this point, what difference does it make? I will diminish and go into the west.

That's one example, but if you're a grammar or usage Nazi, you don't need me to tell you that the occasions proliferate, especially among members of generation whippersnapper.

Correction offers a brief high, but a potent one. It's too engaging, too consuming, to allow oneself to be carried away with every noted blunder. Too indulgent. Here's my advice: offer a solution only seven percent of the time. And that's final.

Kaiju Dreaming

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The road that lead to the next Godzilla movie (release: imminent) was an unlikely one, but not altogether unexpected. 1998’s debacle notwithstanding, Toho is not inherently against being offered what I assume is large amounts of money for licensing. Director Gareth Edwards has never helmed a project whose budget surpassed 500k. But the work he did on that project, Monsters, was extremely promising. He wrote a character drama with a giant monster backdrop. Most importantly, Monsters suggests that Gareth Edwards gets Kaiju. That’s important. It’s tremendously important. To 8 year old me, staring across a summer in a new place hundreds of miles from where I was born and had grown up, it was one of the few things that mattered. I had two passions: video games and monster movies. I had an Atari 2600 and I loved it, but there was nothing quite like an arcade. Arcades sent me into a sort of trance. The world just faded away as I moved from one cabinet to the next, mesmerized. Monster movies were one of the few things that came close.

I don’t know how I developed a taste for either horror or monster movies. I was pretty afraid of the dark as a kid. But I did love dinosaurs, and movie monsters are a natural transition for a kid who is obsessed with dinosaurs. Movies like The Land that Time Forgot, The Last Dinosaur, and Dinosaurus! provided easy transitions into the broader realm of monster movies, and monster movies themselves are just an offshoot (or are offshoots, really) of horror. I can clearly remember my first: The Giant Gila Monster. I was in complete awe after ignoring significant portions of the build up. Effects didn’t matter back then. Here was something like a dinosaur, something impossible, but something that could have been menacing my block. I was impossibly hooked. At that age – 7 or possibly even 6 – I think what I really craved was stimulus for my imagination. Looking back, I think my father had an acute understanding of that. He had found me watching it and sat down to watch with me.  We talked through parts of the movie (I being absolutely terrified, watching parts through my hands).  After it ended, I remember asking him if such things could be real.  I mean, I knew there were no more dinosaurs, I had seen fossils and read many books.  But this was something else.   I can see his expression, sober and somber “It’s a big planet, and I don’t think we know everything there is to about it”. The perfect answer.   Like Star Wars, and Indiana Jones (and later, Dr Who), Monster movies became something we shared.  A secret language we had that nobody else understood.   How could I not have given over my heart, mind, and soul at this point?  I was hooked.

I was an active kid who loved to play outside, with friends. Monster movies became a drug for me, though, even if they didn't quite rival Arcades. We were fortunate to have a nearby metropolitan area (such as it was) which had a station dedicated to this stuff. I had a couple of summers of monster movie heaven. Viewings snatched and stolen on Saturday mornings and late Saturday afternoons, and occasionally on week days, in between play time spent outside doing whatever (roaming, exploring, playing Star Wars, going hours and hours without every seeing an adult). I watched every one I could get my eyes on. Them!, The Beast From 20,000 Fathoms, King Kong, Mighty Joe Young, Tarantula, Beginning of the End, The Monolith Monsters, Creature from the Black Lagoon. . . no monster movie was above viewing. But few of them managed to get under my skin like the king of all of them: Godzilla. I watched all of the Showa series but one movie, as many times as I could. Even my friends – friends who loved video games, arcades, Star Wars, Tron, Indiana Jones, and Superfriends – thought me odd for this.

And then it was all gone. My father was transferred, and I found myself staring down a summer in a strange, new, location with no means to get a fix in sight. I was shattered. I would get each week’s new cable guide frantically scanning for signs of. . . well life. Civilization. Surely some person in this godforsaken place understood what I needed? VCRs appeared not long after this and there was once a time (the authors of this blog understand it well) where families would rent a VCR for the weekend, and a handful of movies to go with it. I couldn't ever get anyone interested in renting monster movies, though. Eventually proper monster movies and even Godzilla himself, found their way to my TV in this strange land. But there were lean years, before they did. I don't remember when the dreams started. I had been in my new home for longer than a season, though, possibly two. Long enough to make new friends, but recognize that I was very decidedly on the outside of most of the social groups I was around. I don't know what kicked it all off. I had always been prone to vivid dreams and nightmares. But these dreams. . . I wonder if they were inevitable. I wonder if that dry spell did something deep inside the recesses of my mind.  Pulled something loose, as it were.

The first sort was in some ways the worst; I dreamt about scanning the cable guide for monster movies; typically fruitlessly. The banality of these dreams hung in the air even after waking, casting a pall over the day. Sometimes in these dreams I found something, something that was coming on that I would be able to watch. The disappointment on waking up and realizing not merely that there was no new Godzilla fair to watch is surely trumped by the fleeting promise that there was. But these dreams occasionally took strange turns, where I not only found monster movies, but the titles were unrecognizable. What coded Lovecraftian things did I witness back then? Would that the titles had stayed with me on waking, just once (or perhaps it's for the best that they did not). I always *knew* this was some as yet unseen monster movie. And I always knew when they were Godzilla movies (in my dreams, they were never titled “Godzilla vs X”). In truth it was after that sort of dream started that the feeling they left me with turned. Disappointment at these things not existing (and my not even having poor substitutes to turn to) gave way to wonder. The dream of these movies was powerful. The dreams eventually (and only very occasionally, at that) changed. I started to catch glimpses of movies that did not exist, showing Godzilla battling familiar foes in unfamiliar settings, or sometimes even strange new creatures. Years later when I finally discovered Lovecraft, I wondered if perhaps he could have explained all of this to me. I did not have many of these dreams, but they were good dreams.

The dreams again grew stranger and more vivid still, often intense to the point of forcing me awake. There was no middle man this time; I was *there*. Some of them were absurd (twice as a famous actor shooting a monster movie, the monster in question threw a tantrum on set and I suddenly found myself living a part I was supposed to be playing, scrambling to escape impossible doom). Some of them were the genuine article – I can recall frantically trying to convince a general not to go ahead with some absurd plan to try to kill Godzilla. No one else could perceive some threat that I could, and only Godzilla would be able to deal with it. I remember manning another where I manned a sort of watch station on Monster Island, carefully studying the activities of creatures less they become active again. The last dreams, though. . . these I think Lovecraft would have understood all too well I found myself in hilly (if I was lucky, such as it was) or flat but otherwise featureless terrain, in the middle of who-knows-where. *Something* lurked nearby (as much as nearby counts for creatures hundreds of feet tall). I would scramble about looking for any place to shelter but never find it. Tension would mount as the feeling of being exposed would begin to smother me. Sometimes, *something* would shake me to the core (a roar? A thunderous footstep? Glimpses of a monstrous form off in the distance as the moon appears between clouds?) and I would wake with a start. Alone and irrelevant, entirely unsure of my place in any world. These were terrifying dreams. But I sometimes welcomed them.

The dreams stopped coming after a couple of years; after I had finally found monster movies again (if less frequently than I used to). I've never stopped having nightmares, though I don't have them as much as I used to. Some of them have travelled down stranger tides than monster movies. None of them has quite captured that feeling of wandering on a plain, alone, waiting for a titan to come and render me entirely irrelevant and lost, not even knowing myself. I think Lovecraft understood that. I think Guillermo Del Toro understands it. Monsters suggests to me that maybe Gareth Edwards does too. Sometimes I wonder if the dreams stopped because I lost something important. Sometimes I wondered if they stopped because my brain figured out a way to provide me a little cover. I miss them, terribly.

I'll see Godzilla in the next few days. Will the king return to reclaim his throne? I'll go because I have to know. I'll go because I hope to catch a glimpse of that feeling those most terrifying dreams left me with, writ impossibly large. I've been waiting to see Godzilla for months. For true, years. Since almost as far back as I can remember.

When Your Enemy Is in the Process of Destroying Himself, Stay Out of His Way

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When Your Enemy Is in the Process of Destroying Himself, Stay Out of His Way

The gentle souls at the New York Police Department came up with a great idea: let's give the little people a way to really express how they feel about us!

Within the cloistered halls of the precinct stations this probably sounded like a can't fail idea. After all, everyone they knew loved the NYPD.

Thus was born the hashtag #myNYPD.

What could go wrong?

In short:


< munches popcorn >

Keep them coming.

nihil sub sole novum

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We have to remember that 12-year-olds nowadays are at about my 7-year-old level, and your 4 and 5 year old level. Infancy is being prolonged by every possible agency now. I have just read an article on college education … by the President of the University of Chicago, and he calls college students "children" throughout. Remember that the Federal Government is taking care of "underprivileged children aged 16 to 24". Minds are not permitted to develop as they used to…

21 January 1938, Rose Wilder Lane to her mother

On Dying

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My father-in-law passed away this weekend after a long struggle with Alzheimer's when his body (finally, one might say) caught up to his mind. Though I couldn't go to join my wife's family at his bedside, my wife did. She's a better writer than I am, so I'll get out of the way.

I used to think that dying of old age was like falling asleep. You lose all your strength, close your eyes, wait a while, then… done. It's not like that at all. Just like the cliches of birth — where moms are rushed to the hospital upon the first signs of labor and babies come out resembling perfectly formed 3 month olds — what we see and tell ourselves about death has little connection to reality.

My parents died of different causes. My mom, from cancer or chemo (as with any cancer patient, it's impossible to say which), my dad from Alzheimer's. But what struck me when I first saw my dad after he slipped into unconsciousness was how closely he resembled my mom on her last day: his body was bony and colorless; mouth agape and twisted; breaths shallow and forced. You could hear him gasp over the oxygen tank, which is saying something. It was noisy, with plodding, arrhymic but no less robotic bursts. After my mom passed and they took the oxygen mask off, we could see that her mouth was caked with blood. She looked like a skeleton. I didn't recognize her.

One of the hospice workers the night I arrived told us he bet Dad would die within an hour, maybe two. (None of the other hospice workers, who were unbelievably kind, would have said anything nearly so blunt.) Everyone was offended but I secretly appreciated his candor. Having been through this last year with my mom I wasn't sure how long I could hold out watching my father's tortured breaths. My brothers, their wives, and I stayed all through the night holding my dad's hands, watching him breathe, and waiting for him to die.

No one would ever admit it but you end up hoping that each violent contraction will be the last. That this excruciating fight will end. After it's over, we cover this lie with another lie, telling people that he died peacefully so that we don't have to talk about it. But when one suffers from Alzheimer's, "peacefully" means merely "unconscious." I don't have to worry about coming to visit my dad at his nursing home and finding him slumped over a wheelchair or soaking in his urine, his skin so dry it's cracked and bleeding in places.

The idea that anyone would have to go through this for a child is unthinkable. But I couldn't help but think of my son during this process: if losing a parent is so difficult, what must it be like to lose a child? Will my son one day have to go through this for my husband and I? He has no siblings. Would he be alone? Would I want to have him staring at me, this horrific image seared in his brain? My instinct is to spare us all from it, securing some kind of "kill pill" to take when the time comes. I took an epidural when my son was born and have no romance for pure pain or suffering. Is a kill pill similar? Is it cowardly? Or consumerist?

The truth is that if I live as long as my parents with my family intact, I'll be lucky if I need to answer this question.

Time for the Popehat Signal: Missouri Car Dealership Sues Over Criticism

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New Popehat Signal courtesy of Nigel Lew.  Thanks, Nigel!

It's time for the Popehat Signal, by which we seek pro bono assistance in defending the First Amendment. I learned of this case through Paul Alan Levy of Public Citizen, whose important work in support of free speech I've often praised here.

Dwayne Cooney took his car to Jim Butler Chevrolet of Fenton, Missouri. When most of us leave our cars to be serviced, we're left to guess exactly what the mechanics did to it. But Cooney, who works in security, has a dashboard camera, which he left on. He believed that the footage showed that Jim Butler Chevrolet overbilled and charged for work they did not perform. He posted the footage on YouTube.

Jim Butler Chevrolet claims that Cooney is wrong and has deceitfully edited the video, and that the video does not show all of the work that was actually done. They could have responded to Cooney's speech with more speech, but they took the censorious route and sued for defamation, even going as far as to seek an injunction to take Cooney's videos down. Incredibly, a judge issued a temporary restraining order, a plainly unconstitutional prior restraint of speech.

Missouri attorney Martin J. Buckley, with assistance from Paul Alan Levy of Public Citizen, convinced the judge to dissolve the temporary restraining order. But now Cooley's homeowner's insurance is refusing to cover his defense. The Jim Butler Chevrolet dealership is suing for damages and still seeking to have Cooley's criticism taken down. Cooley needs help. If you are an attorney in Missouri, please consider stepping up to assist him in defending this suit.

You can find Cooley's video here. Paul Alan Levy has the pleadings here. The dealership maintains that Cooley's video was misleading. Without prejudging that claim, free speech disputes are best resolved with competent counsel on both sides. Moreover, I am not inclined to believe a plaintiff who seeks a patently unconstitutional injunction against speech; rather, I'm inclined to view them as someone willing to abuse the legal system to silence criticism.

Anti-SLAPP Victory In Oregon: Anti-Telemarketing Blog Wins Big With Pro Bono Help

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Here's a hard fact about free speech: vindicating it in American courts takes either money (and lots of it), or lawyers willing to provide pro bono help. Right is right, and law is law, but court is court — and winning in court generally requires competent representation, which is ruinously expensive for normal people. It's not fair, it's not right, but it's true.

Therefore the vitality of the First Amendment depends not just on the law, but on the service of lawyers like Troy Sexton of Motschenbacher & Blattner LLP in Portland, Oregon.

Last August I put up the Popehat Signal seeking pro bono help for an anti-telemarketing blogger who writes at the Telecom Compliance News Press. The blogger was sued by an attorney named F. Antone Accuardi, who claimed that the blog falsely associated him with companies involved with robocalling and other telemarketing violations.

Troy Sexton stepped up. He filed a motion under Oregon's anti-SLAPP statute in response to Accuardi's complaint, and this March, he prevailed. Accuardi's complaint is here, Sexton's anti-SLAPP motion is here, and the Magistrate Judge's lengthy and detailed order granting the anti-SLAPP motion is here. Sexton's work was absolutely top-notch. The main basis of the judge's order is that the blog's comments of Accuardi were statements of opinion based on disclosed and linked facts about the companies and Accuardi's connections to them, and therefore protected by the First Amendment. It's a very thorough opinion and worth a read if you're interested in First Amendment and anti-SLAPP issues.

This is a tremendous victory for the blog, and for Troy Sexton and his firm. Sexton has a motion for fees pending; though he stepped in pro bono, I hope that he winds up collecting at his full rate from Accuardi. I am more free, and so are you, because people like Troy Sexton are willing to step up and contribute their time and skill. Please join me in congratulating him.

Chilling Effect, Next Steps, Final Steps, Hope

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open society
government in the open society is purported to be responsive and tolerant, and political mechanisms are said to be transparent and flexible.


In a legal context, a chilling effect is the inhibition or discouragement of the legitimate exercise of natural and legal rights by the threat of legal sanction.


Culture of fear is a term used by certain scholars, writers, journalists and politicians who believe that some in society incite fear in the general public to achieve political goals.


Intimidation is intentional behavior that "would cause a person of ordinary sensibilities" fear of injury or harm.


A new empirical research paper
I have coauthored with Professor Catherine Tucker of MIT-Sloan [ Clark note: originally at ] examines the question of how Edward Snowden’s surveillance revelations have shifted the way people search for information on the Internet. We look at Google searches in the US and its top ten trading partners during 2013. We identify a roughly 5% drop in search volume on privacy-sensitive terms. In the US, UK and Canada, the countries in our data who were most involved with the surveillance controversy, search volume fell for search terms likely to get you in trouble with the government (“pipe bomb”, “anthrax” etc.), and for searches that were personally sensitive (“viagra”, “gender reassignment”, etc.). In France and Saudi Arabia, search volume fell only for the government-sensitive search terms. This paper, though at an early stage, provides the first systematic empirical evidence of a chilling effect on people’s search behaviors that is attributable to increased awareness of government surveillance. I will be presenting this paper at the Privacy Law Scholars’ Conference in DC in May, 2014. I would welcome comments at

Clark's editorial additions:

1) Police states are not boolean: A society can be more or less of a police state. The presence of newspapers and absence of death camps does not mean that there is not something of a police state.

2) It is not necessary for anyone to to desire or plan a police state for a police state to arise. Men of good intentions can honestly attempt to solve problems on the ground and in doing so end up worsen the overall picture.

3) When people feel that they can't look up entirely legal information in the 21st century equivalent of a book because they fear know that their government

and based on this knowledge "voluntarily" curtail their own legal behaviors, we have some noticeable degree of a police state.

Clark's suggestion:

1) Do go read the Marthew's paper. I approach all social science papers with an attitude of skepticism…and in this case I was surprised (pleasantly so) by table 6, where statistical confidence is specified.

2) Add to your RSS reader and follow @rebelcinder on Twitter.

3) Put aside existing models of how and why the US government works and approach it as a forensic anthropology question:

  • Note that the NSA, the DoD, and the State Department are regulated by the government, but regulation does not work they way one might expect.
  • Note that no matter which party seems to win an election, the bureaucracy always stays in place, and has its own agenda.
  • Note that elections do not create moral government or consent.
  • Note that the DNA of the government is not just the Constitution, but the extended phenotype of defense oriented firms, police departments, bureaucrats, dependents, and more.
  • Ask yourself if people of good will tried to reform the government in 1980, and 1990, and 200, and 2010, and it has gotten larger and more intrustive every year, what effect people of good will trying to reform the government in 2014 will have.

4)Withdraw your consent from the system.

  • Note that just because party A is terrible does not mean that party B is any better, and refuse to ever say "this will be better after the next election" or "we just need the right guy in office".
  • Note that just because because a Constitution exists and a Supreme Court says that it will enforce the Constitution does not mean that it actually does so.
  • Note that this is not "your" government but "the" government, which you can choose to give loyalty to or not, as you see fit.
  • Note that the government can do whatever it wants to your body, because it has more men and more guns, but it can not force you to acknowledge its moral legitimacy.

The system is unreformable. It has more guns than the good guys (at least now). But if discontent grows and enough people start to stop talking about "our government" and start talking "your [ illegitimate ] government", at some point even the hard men look out at the swelling crowd, realize that they are on the wrong side of history, and go home.

Or at least we can hope.

Reporting In From The Liberty Forum

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I'm in New Hampshire for the Liberty Forum. This afternoon I'm giving a talk on how legal threats from cops and citizens chill online free speech, and what we can do about it. I am obsessively tweaking my Power Point, as is my bad habit, and thinking about which jokes work for my particular audience. ("Pro se is Latin for unmedicated and litigious" is probably not the right fit for this group.) Tomorrow I'm on a panel about dealing with the police when one encounters them non-socially.

It would be easy to write a post making fun of this convention, in the sense that it would be easy to write a post making fun of any convention. They are all similar: a few eccentrically dressed people stand out from the rest, a few people argue too loudly and badly, a few people are always a little too scarily involved in the subject matter. That was true for the fantasy gaming conventions I attended in the early 1980s and it's true of mainstream political conventions and it's true of this.

A few minutes ago I very much enjoyed hearing Jesselyn Radack, ex-DoJ whistleblower and now attorney for whistleblowers, speak. This is what happened to her last week at Heathrow, and here is an old story about what DoJ tried to do to her. I particularly enjoyed the part about how the Department of Justice, having convinced her law firm to fire her, cooperated with her law firm in an effort to block her from getting unemployment benefits.

More tomorrow.

News-Reworder SlashGear Turns Expert Into Criminal Defendant

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Dr. Nicholas Weaver is an expert on network security issues. The media frequently seeks him out for input on stories involving the intersection of criminal justice and computer security, like Silk Road and leak investigations. Fair disclosure: he's also an online friend and an expert on one of my cases.

SlashGear is an also-ran tech site that rewrites stories badly.

Case in point: SlashGear took this story from Krebs On Security about criminal charges against Bitcoin traders in Florida. Dr. Weaver was quoted as an expert in that story:

Nicholas Weaver, a researcher at the International Computer Science Institute (ICSI) and at the University of California, Berkeley and keen follower of Bitcoin-related news, said he is unaware of another case in which state law has been used against a Bitcoin vendor. According to Weaver, the Florida case is significant because is among the last remaining places that Americans can use to purchase Bitcoins anonymously.

“The biggest problem that Bitcoin faces is actually self-imposed, because it’s always hard to buy Bitcoins,” Weaver said. “The reason is that Bitcoin transactions are irreversible, and therefore any purchase of Bitcoins must be made with something irreversible — namely cash. And that means you either have to wait several days for the wire transfer or bank transfer to go through, or if you want to buy them quickly you pay with cash through a site like”

But when Bittany Hillen penned an awkwardly-worded and uninformative summary of the story for SlashGear, she turned Dr. Weaver from a quoted expert to a criminal defendant:

Yesterday, Florida law enforcement announced the arrests and criminal charges against three individuals under anti-money laundering laws: Michell Abner Espinoza, Pascal Reid, and Nicholas Weaver.

Dr. Weaver captured a screenshot in case SlashGear tries to memory-hole this. He should feel happy he didn't give a quote about the Woody Allen case, I guess.

Dr. Weaver isn't the suing type. But, hypothetically, could he sue for defamation? Sure.

In California the elements of defamation — that is, the things that a defamation plaintiff must prove — are these:

publication of a statement of fact
that is false,
has a natural tendency to injure or which causes "special damage," and
the defendant's fault in publishing the statement amounted to at least negligence.

Here, SlashGear and Hillen published a false statement of fact about Dr. Weaver — that he had been charged with a crime. The publication was unprivileged, meaning that it was not immunized from liability by statute (for instance, things you say as a witness in court, or in pleadings filed in court, are generally privileged from liability). Accusing some of being charged with a crime is the sort of thing that has a natural tendency to injure, which is why it is often categorizes as "libel per se" — which merely means that the plaintiff doesn't have to prove that he or she suffered damage to reputation, and gets at least nominal damages without such proof.1 Dr. Weaver probably couldn't prove actual or special damages to his reputation — it's doubtful that anyone gives a shit what a clumsy SlashGear rewrite says. But he could get at least nominal damages because of the nature of the accusation.

That leaves us with the question of fault. As I explained in the context of the Crystal Cox case, at least if the issue being discussed is a public one, a defamation claim always requires proof of some level of fault on the part of the defendant. The level of fault depends on whether the plaintiff is a mere private figure (in which case the plaintiff may only need to prove that the defendant got the story wrong out of negligence) or a public figure (in which case the plaintiff would need to prove actual malice, meaning knowledge that the story was false or reckless disregard to its truth or falsity.) There are complexities and gradations; people can be public figures for limited purposes.

Here, the transformation of Dr. Weaver from respected expert to criminal defendant is a result of an incompetent rewrite of a news story. That's at least negligence. If Dr. Weaver is treated as a private figure he would prevail. But since he's frequently quoted in the news on stories like this, he may well be treated as a limited purpose public figure in the context of coverage of network security issues in the news. So the question is probably whether an incompetent rewrite of a story rises to the level of reckless disregard of the truth as required by the actual malice standard. The answer is almost certainly not. "Reckless disregard" requires more than incompetence; it requires conscious disregard of doubt. Here there's no indication that anyone consciously regarded or disregarded anything.

So: Dr. Weaver probably can't prove the requisite fault against SlashGear and Hillen, even if he wanted to. They live to promote shitty rewrites another day. Fortunately for Dr. Weaver it's difficult to imagine anyone taking SlashGear seriously enough for their incompetence to hurt his reputation.

Remember: just because something is written in a "story" by a "journalist" on a well-trafficked website, that doesn't mean it's anything other than incompetent drivel.

Edited to add SlashGear corrected the story to remove the reference to Dr. Weaver as a defendant, but as of this writing has not offered any retraction or apology. Classy.

How Commonwealth’s Attorney Paul B. Ebert Touched People

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Paul B. Ebert, Virginia's longest-serving prosecutor, was honored a couple of years ago.

A portrait of Ebert was unveiled at the event that will be hung near his office alongside those of his predecessors. The portrait was done by Wendell Powell Studio in Richmond.

The idea of a portrait came from the many people Ebert has known in his 43 years as a commonwealth’s attorney.

“We see all these nice, distinguished gentlemen hanging [on the walls] around the courthouse,” Prince William area lawyer William Stephens said. “It dawned on me” that Paul Ebert should be one of them. “He has touched so many people.”

Indeed he has.

Justin Wolfe, for instance.