Category: Effluvia

38

Update: Judge Tim Grendell's Odd Letter To The Paper About His Censorious Thuggery

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Yesterday I wrote about how Ohio judge Tim Grendell was abusing his contempt power in an unconstitutional attempt to retaliate against criticism.

Today a source provided me with a copy of the letter Judge Grendell sent to the editorial board of a local paper, the Plain Dealer, in response to a critical article.

The letter satisfies my expectations concerning Judge Grendell.

To the Editorial Board ofCleveland.com,
As a constitutional oriented judge and legal scholar, I appreciate the First Amendment and the general right of free speech.

What tha blue fuck is a "constitutional oriented judge," other than an attempt to make me choke on my morning coffee?

Also, note the classic censor's rhetorical move: you always start saying you respect free speech. BUT . . . . [Edit: I am reminded that the technical term for this is "gertruding."]

But the right to free speech is not unlimited. Just as a person cannot stand up in a movie theater and yell "fire", a person has no constitutional right to falsely tell a party in an ongoing child protective custody case that the judge is mentally ill, does not follow the law, and should be "kicked" by that party. Such irresponsible and false speech is just as detrimental to the public welfare and the fair administration of our public justice system as the prohibited movie theater conduct is to public safety.

So much arglebargle.

First: "the right to free speech is not unlimited" is another typical censor's rhetorical move. It's a non sequitur. If you have relevant authority showing that this particular instance of speech is outside the protection of the First Amendment, cite it. Otherwise this is like saying, "well, there are some circumstances where I am allowed to shoot someone" when the cops come to arrest you for shooting your spouse.

Second: Stahhhhp. Staahhhhp with the hackneyed, misleading fire in a crowded theater reference. Protip: the legal analysis of anyone who references that Holmes line is not to be taken seriously.

Third, the generic and conclusory "detrimental to the public welfare and fair administration of our public justice system" is meritless for the reasons I explained yesterday. Most of the language he's complaining about is explicitly opinion and rhetorical hyperbole, and he hasn't come close to offering the sort of compelling evidence of actual disruption of justice required by three quarters of a century of Supreme Court precedent.

In the case in my court, involving the protection of a child in need ofjudicial intervention, Nancy McArthur's false speech encouraging a noncompliant party to continue to be disrespectful of the Court and noncompliant with Court orders was not protected speech. It was interference with a judicial proceeding and improperly impeded the protection of a child.

Judge Grendell's proposition seems to be that if a party to a case asks me about a judge, and I criticize the judge, I'm subject to a contempt order because I am encouraging disobedience. I invite Judge Grendell, with the assistance of a doctor holding a flashlight if necessary, to cite any authority supporting that proposition.

Confidentiality limitations prevent a discussion of any other facts, but suffice to say, the Plain Dealer's Editorial Board and Brent Larkin are mistaken as to both the facts and the law. This is particularly disappointing because the Court provided the newspaper with the correct information before it published its editorial.

Oddly, though the issue is so important to him, Judge Grendell cannot cite a single precedent supporting his unconstitutionally narcissistic view of his own contempt power. Ultimately this letter is reminiscent not of an analysis by a "legal scholar" but of a YouTube comment.

People like this decide on which of your rights the State will recognize.

44

A Warning To All Mankind

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Dear Friends:

I was asked by Ken, whom I esteem most highly and whose website "Pope Hat" is among the finest published today, to write a special guest contribution. I would like to thank Ken for this opportunity, and all of you, my most valued friends, for reading this important message.

Friends, what do you think of, when I mention the common American pony, or, as science calls it, Equus Maleficus? Like most, you probably think of fairgrounds and hayrides and smiling kids. Have you considered that behind the smiling mask that is Equus Maleficus, there lurks the grin of a hate-crazed demon? I swear it is true. I have been to the ceremonies. I have drunk the sacrificial offerings. I have spoken with the nameless devotees of the pony cult, high atop the barns, as the ponies circled below, feasting on the children, my ears ringing with the din of the screams, a din so shudderingly perverse as to shock the conscience of hardcore Satanists.

Pony of Death

Yes. Satanists.

Make no mistake. Ponies are in league with Lucifer. After forty-three years of nightmare and terror, saved only by a desperate conviction to tell the truth, I am here to vouch for that which "sane" men fear to utter. There is reason to believe that the pony was in fact the beast which tempted Eve into eating the forbidden fruit, for do not ponies eat the apple, sweetest of all the harvest? Yes, the HARVEST. And at the Harvest, each May Eve and Walpurgisnacht, the robed, masked figures sit gibbering before their pony idols, chanting the chants and praying the prayers to their obscene gods, the ponies, who are well sated by the blood and flesh of the innocent, the virgins. The virgins, how their screams echo round the hills and valleys, as the ponies come to take their tribute. A tribute whose cost, over the centuries, must be reckoned with that taken by Adolf Hitler himself.

Hitler pony

Yes. Adolf Hitler. None dare call it treason, and yet it is fact, cemented in stone, that the so-called Aryan unbermensch was a devotee, nay, a high priest, of the pony cult. And at the ceremonies, the shouts and cries of the Jewish children, ripped from their mothers' bosoms and fed to the ponies by hand, caused Father Martin Heinmuller, an early convert to Nazism, the public front of the pony cult, to faint on the spot, blood bursting from his ears in an astonishing orgy of woe. This was his testimony at Nuremberg, the testimony that led to the conviction and execution of Baldur Von Schirach, leader of the Hitler Youth and High Epopt of the pony cult.

These things have happened. Man must be prepared to accept notions of the cosmos, and of his own place in the seething vortex of time, whose merest mention is paralyzing. He must, too, be placed on guard against a specific lurking peril within, the pony, Equus Maleficus, which is the gateway to the door of death. Their hand is ever at your throat, though you see it not. "As a foulness shall ye know them." The pony is a spiritual corrupter, a ghost of fire made flesh, come to devour the good and the young. For was it not, as told in the Holy Qur'an, Al Rum, the pony that misled the Prophet Muhammad and deceived him into drinking the very wine of foulness?

Other examples, through religion and history, can be given. As for me, my time is short. The ponies come. I pray that this missive is heeded, though it be too late to save me from the gnawing teeth, the trampling hooves. Be on guard, lest they come for you.

Theodore Weinzel

Public Affairs, National Miniature Donkey Association.

38

The Feds Reach A Settlement With Craig Brittain, Revenge Pornster and Extortionist Behind "Is Anybody Down"

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Back in 2012 and 2013 I wrote about the saga of Craig Brittain and his revenge porn site "Is Anybody Down." The genesis of that series was Marc Randazza's discovery that the site was posting nude pictures and contact information, and someone calling themselves "David Blade III, takedown lawyer" was charging to "help" get the stuff taken down. All evidence suggested that David Blade never existed and that he was an invention of Craig Brittain, the operator of the site. In other words, it was an unusually despicable wire fraud and extortion scheme.

I counseled patience, because the system's wheels grind slowly. Finally we have a consequence to Brittain — of a sort.

The Federal Trade Commission — which was investigating Craig back in 2013 — has reached a settlement with him. The FTC had prepared an administrative complaint against Craig Brittain. That complaint shows that the FTC concluded several key points about Craig's practices. First this is their accusation about his methods of obtaining nude photos:

Respondent used three different methods to obtain photographs for the Website. First, Respondent encouraged and solicited individuals to submit, anonymously, photographs of other individuals with their intimate parts exposed for posting on the Website. Most submitters were men sending photographs of women. Respondent required that all submissions include at least two photographs, one of which had to be a full or partial nude, as well as the subject’s full name, date of birth (or age), town and state, a link to the subject’s Facebook profile, and phone number. Respondent received and compiled the photographs and personal information, posted them on the Website, and in some instances, Respondent posted additional personal information that he independently located about the subjects.

6. Second, Respondent posed as a woman on the Craigslist advertising website and, after sending other women photographs purportedly of himself, solicited photographs of them with their intimate parts exposed in return. If they sent such photographs, Respondent posted them on the Website without their knowledge or permission.

7. Third, Respondent instituted a “bounty system” on the Website, whereby anyone could request that others find and post photos of a specific person in exchange for a reward of at least $100. Respondent collected a “standard listing fee” of $20 for each request and half of all rewards given.

That contradicts Craig's various stories, which changed from day to day, but often centered around the claim "they consented."

Like everyone else who looked at the evidence, the FTC also concluded that Craig was David Blade III:

Respondent also advertised content removal services on the Website. In these advertisements, purported third parties identified as “Takedown Hammer” and “Takedown Lawyer” promised to have consumers’ content removed from the Website in exchange for a payment of $200 to $500. The advertisements referred interested consumers to the websites, www.takedownhammer.com and www.takedownlawyer.com, for further information. In fact, Respondent himself owned such websites, and posed as a third party to obtain money to remove the same photographs that he had posted on the Website.

11. Respondent earned approximately $12,000 from operating www.isanybodydown.com.

Craig has told many contradictory stories about David Blade, but he's always denied being him.

Craig settled this administrative complaint with the FTC. As far as I can tell he was not represented by counsel. Many people will find the terms of the settlement very unsatisfying. Craig admits no guilt. He doesn't go to jail. He doesn't pay any money. He does promise not to post nude pictures without the subjects' consent, and not to make misrepresentations about posting pictures online. He does have to destroy all the pictures and identity information he got while running the site. He also has to inform any employees or agents working with him on any web enterprise about the order. If he does anything else web-related, he has to turn over to the FTC at their demand a wide variety of information (privacy and consent policies, complaints, etc.) about the business. He has to tell the FTC for the next 10 years if he changes jobs, so they can watch what he's doing. And the terms of the order last 20 years.

A few thoughts about this based on my past dealings with the FTC:

1. This suggests the FTC determined he had no assets worth taking.

2. If he violates the order, the FTC can file against him in federal court. The resulting civil/administrative process only bears the most remote resemblance to due process. It will be ridiculously easy for the FTC to shut down and confiscate any new enterprise he starts for the next 20 years. The clients I've seen be most mercilessly and thoroughly screwed without pretense of fairness have been FTC defendants in federal court.

3. Craig Brittain is now subject to a permanent and relationship-and-career-debilitating stigma. Employers, lenders, landlords and others won't necessarily pick up internet drama. But you can bet that they'll pick up on an FTC consent order. Craig may want to change his name to something without such baggage, like maybe Pustule Nickelback McHitler III.

4. This doesn't prevent criminal prosecution. Nothing in the agreement shows any guarantee by the feds. The feds couldn't prevent state prosecution. Realistically, I think it means that federal prosecution is unlikely for past deeds. [I'd love to make a convincing argument here that this shows that he's about to be indicted, just to mess with his head. But I'm not a lowlife liar like Craig Brittain.] Federal prosecutors have limited resources and will likely see this as a resolution of any investigation. As for state prosecution, it's still possible given the applicable statute of limitations. A victim might take the FTC complaint and Craig's agreement to the locals and use it as incentive to go after him for fraud or extortion, as some locals are doing as we speak. If you are one of Craig's victims, and want help putting together a package to persuade locals, I'm happy to help.

However, be sure of this — if Craig Brittain ever gets up to bad behavior again, this result makes it much more likely that prosecutors will decide to spend resources on him.

Is this the end of the Craig Brittain saga? Not necessarily. But it's certainly an end to Craig Brittain ever being employable.

He'll have to spend his time at his new hobby — trying to insinuate himself into GamerGate, which for whatever reason he thought would be receptive.

Edit: Adam offers up a link-dense post tracing Craig's changing excuses and stories. That post is why you don't want Adam investigating you.

Second Edit: Apparently you can find Craig at this Twitter account. He's concerned about media ethics.

92

Charlie Hebdo – Open Thread

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On behalf of Ken and myself, sorry. It would be difficult to write about this infuriating, monstrous crime without saying something one or the other of us would later regret. Perhaps later. Please feel free to discuss this atrocity among yourselves.

In the meantime, some cartoons, for your reading pleasure:

Charlie-Hebdo-Charia-en-Libye

 

CharliehebdoCharlie2Charlie

 

Charlie4

 

And finally, a reminder that France prosecutes people, indeed "national symbols," for speech far milder than what Charlie Hebdo had to say.

The goddess of free speech.

The goddess of free speech.

Vive La France, but change your laws. Never surrender.

A SLAPP False Alarm Out Of Chicago: The Law Is An Ass

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Monday's Chicago Tribune ran a story that had all the makings of a free speech outrage: a developer had sued local residents who had spoke out against a proposed Park Ridge development.

The residents went to a pair of public hearings to express their concerns about a developer's plans for a new four-story condominium building in their Park Ridge neighborhood.

Then they found themselves on the receiving end of a lawsuit.

Multiple people emailed me about this story, and more tweeted it to me. Fie! Censorship! Suppression! The original impetus for anti-SLAPP statutes was developers suing NIMBY citizens. This is a classic SLAPP! It's actionable even under Illinois' pathetic anti-SLAPP statute! To arms!

Or not.

I wrote the developer's attorneys at Ungaretti & Harris LLP. They responded quickly and courteously. (You may or may not be surprised to hear that's not the response I generally get.) They sent me the complaint, and pointed to some authority that explained their stance.

See, the developer here isn't suing for damages. It's not asking for anything from the neighbors. It's suing to overturn a zoning commission decision denying it a permit to build a multi-family residential and commercial development in Park Ridge. And the developer's attorneys have an extremely credible argument that Illinois law requires them to name a ridiculous array of people in the lawsuit to accomplish that.

Illinois, like many states, has statutes governing how you can challenge a zoning decision. It's not unusual for that path to be a lawsuit seeking review of the administrative decision. What is unusual is that Illinois law (1) requires you to name, as a defendant, all "parties of record" to the underlying decision, and (2) defines "parties of record" ridiculously broadly. The developer has a very credible argument that the neighbors who spoke at the zoning meetings are "parties of record" and that they are required under Illinois law to name them as defendants.

The developer's attorneys pointed me to a case in which the Illinois Appellate Court overturned a lower court decision in a zoning challenge on the grounds that the developer making the challenge hadn't named as defendants the neighbors who had objected to the development. That case also involved Park Ridge zoning:

The Park Ridge residents who made personal or representative appearances at the zoning board hearing lived in the immediate vicinity of the plaintiffs' property. They were more than disinterested witnesses; they actively maintained a position opposed to the plaintiffs'. Their interest in the outcome of the hearing was substantial. They did not seek administrative review of the board's decision because the decision was favorable to them. Their interest became jeopardized a second time when the plaintiffs challenged the decision in the circuit court; yet they were neither notified of the suit nor made defendants. They were thus deprived of the opportunity of protecting their interest-the monetary value of their homes and the aesthetic level of their neighborhood-in court.

O'Hare Int'l Bank v. Zoning Bd. of Appeals, City of Park Ridge, 8 Ill. App. 3d 764, 767, 291 N.E.2d 349, 351 (1972)

I did a little research on my own to see if the developer was relying on bad law. I found multiple cases emphasizing that failure to name the proper parties deprives the court of jurisdiction — meaning that any good result the developer got would be for naught. For instance, in one case a police officer suing a police commission for reinstatement was thwarted because he didn't name, as a defendant, the police chief who had complained about him to the commission:

Moreover, numerous Illinois supreme court and appellate court cases held that failure to name all parties who were of record at the administrative hearing makes a complaint fatally defective. See Winston, 407 Ill. 588, 95 N.E.2d 864; O'Hare International Bank v. Zoning Board of Appeals (1972), 8 Ill.App.3d 764, 291 N.E.2d 349. The requirement of naming all parties of record as defendants is both mandatory and jurisdictional. (Winston, 407 Ill. at 595-96, 95 N.E.2d 864; O'Hare International Bank, 8 Ill.App.3d at 767, 291 N.E.2d 349.) Section 3-107 of the Administrative Review Act states:

Marozas v. Bd. of Fire & Police Comm'rs of City of Burbank, 222 Ill. App. 3d 781, 787, 584 N.E.2d 402, 406 (1991)

In short, I think that the developer's lawyers here are right: there is at least a reasonable concern that a court will find that they must sue the neighbors who appeared at the zoning hearings in order to get relief from the zoning decision. That's a bizarre rule, but it's Illinois' rule, not the developer's.

Quench the torches, let fall the pitchforks: this likely isn't a SLAPP suit.

From my Monday-morning-quarterback armchair I will note that it would have been prudent to have a paragraph in the complaint saying something like "the Neighbor Defendants are named solely as required by Illinois law as potential parties of record to the administrative hearing, and no relief is sought specifically from them." It also would have been prudent to have an advance media strategy when this hit; a furor about SLAPPs was predictable. Nobody's perfect.

Remember: the media doesn't get law. Don't trust its reporting. Don't assume that sombody's failure to respond meant that they don't have a response.

Edited to add: Jack Leyhane is not completely convinced.

Roca Labs, Lacking A Hornet Nest Into Which It Could Stick Its Dick, Has Sued Marc Randazza

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This crazy litigant goes to 11.

Roca Labs, you may recall, is the weight-loss-goo purveyor that is belligerent, litigious, and sensitive to criticism to a pathological degree. Last month I wrote about how they require their customers to sign no-criticism contracts, and had sued PissedConsumer.com for carrying negative reviews. Yesterday I lit the Popehat Signal to seek help for customers Roca Labs has targeted with vexatious litigation — including, in what no doubt is just a big coincidence, one of the witnesses against them in their first litigation.

Can Roca Labs push the envelope more? Yes they can.

Today Marc Randazza — counsel for PissedConsumer.com in Roca Labs' frivolous suit — filed an updated notice of related cases in the PissedConsumer case. That updated notice revealed that Roca Labs has now sued Randazza himself for his activities defending PissedConsumer.com.

The complaint itself — which I have uploaded here — brings the crazy and brings it good and hard. It was penned by Roca Labs' latest attorney, one Johnny G. DeGirolamo, a 2009 law school graduate and 2011 bar admittee, whose website is www.inlawwetrust.com. No, really. His site offers a flattering headshot of a smiling advocate, and it was a very good choice to use that picture rather than, say, his booking photo.

Roca Labs, through Johnny G., accuses Marc of interference with economic advantage and defamation per se1, demands a declaration that Randazza is wrong and he is libel, and moves for an injuction telling Marc to shut up. Yeah, good luck with that.

But that ain't all. The complaint is a model of prissy pearl-clutching. Johnny G. is aghast that Randazza has provided legal services to adult entertainment companies. Goodness gracious! Johnny G. is horrified that Randazza has been "an outspoken advocate for Phillip Greaves, the author of 'The Pedophiles Guide to Love and Pleasure.'" To be more accurate, Randazza has been an outspoken advocate for the First Amendment issues presented by Greaves' case, but it's not surprising that a First Amendment distinction is lost on the sort of attorney who wold represent Roca Labs. Johnny G. is cheesed off at Randazza's catchphrase murum aries attigit, which apparently suggests a level of aggression that is upsetting to a company that flails around suing its customers for criticizing it. In short, Johnny G. — bless his heart — does his best to make Marc Randazza sound terrible, and only wind up making him sound knowledgeable about free speech.

On to the substance of the claim, if I may use the term very generously. Roca — through Johnny G. — asserts that Marc has been defaming Roca Labs during this litigation by making statements to the press (or, as Johnny G. puts it, to "webzines") and then putting those same statements in court pleadings. They imply he's trying to cloak his statements to the media with litigation privilege by repeating them in court filings. This theory is . . . odd.

Moreover, Johnny G. and Roca Labs are conspicuously vague about exactly what statements are defamatory, and exactly how. Other than complaining that Randazza defamed Roca Labs through a very clearly satirical tweet on Halloween, there are few specifics. Roca Labs complains that Randazza's purpose is to "mock, ridicule, humiliate, harm, and continue his war against ROCA," but that's not very specific. Roca Labs complains about statements in articles by TechDirt and tries to attribute them to Randazza, but doesn't explain exactly what Randazza said and exactly how it was wrong. That lack of specificity is probably deliberate — if Roca Labs admitted they were mad over the term "snake oil," they'd have to confront the fact that the phrase is obviously protected opinion. See, e.g., Phantom Touring v. Affiliated Publ'ns, 953 F.2d 724, 728, 730–31 (1st Cir.1992) (holding that description of theatre production as “a rip-off, a fraud, a scandal, a snake-oil job” was no more than “rhetorical hyperbole”). Moreover, in some parts of the complaint Roca Labs is attacking statements that are clearly, objectively true based on Roca Labs' own court documents. For instance, Roca Labs angrily quotes a paragraph in which TechDirt accused them of trying to silence customers. Which is what they are doing.

Finally, the complaint attaches a motion for a temporary injunction, in which Johnny G. demands that Randazza cease and desist saying mean things about Roca Labs, retract prior mean things, and remove any online content about Roca Labs. At this point I have to admit that I don't know whether Roca Labs and Johnny G. are powerfully stupid, breathtakingly cynical, unapologetically unethical, or all three. Despite the fact that they are suing a renowned First Amendment lawyer, despite the fact that they are demanding an injunction silencing him, despite the fact that they have lost a similar injunction request in which Randazza schooled them on the First Amendment and prior restraint issues, and despite the fact that it is clear those issues will arise again, their motion makes no mention whatsoever of the overwhelming First Amendment and prior restraint issues presented by their demand.

Roca Labs is mistaking aggression for strategy. Randazza, by filing his notice of related case, has alerted the federal court hearing the PissedConsumer.com case that Roca Labs is flailing around suing opposing lawyers, which will not go over well. Roca Labs has hired what appears to be an improbably matriculated Muppet to champion their case, despite a patent lack of qualifications. Roca Labs thinks that suing Marc Randazza to shut him up is going to end well. They should have asked Raanan Katz or Crystal Cox how that would turn out.

I'm calling it: Roca Labs has achieved Prenda status.

Edited to add: Adam Steinbaugh explains why Roca Labs' attempt to evade the litigation privilege is so frivolous.

A Grumble: United States Courts Website Misinforms About Free Speech

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Last night I carefully observed a gentleman who thinks that criticizing someone violates the First Amendment. You have to be very still in the wild or you spook them. After some irritable flailing our subject — a communications director — offered this:

A reminder that the First Amendment does not include the right to incite actions that hurt others: http://is.gd/Ah8ZU5

What a pointlessly vague, ambiguous, and misleading summary of First Amendment law, I thought. I wonder what unschooled blogger, what anti-speech advocate, what twelve-year-old's Livejournal post, what ungrammatical cat picture is he relying on for that statement?

Funny story.

(more…)

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SCIENCE IN THE HANDS OF ANGRY LIBERAL ARTS MAJORS:  That DOJ attorneys are threatening scientists with criminal prosecution for the "return" of Kennewick Man, to Indian tribes whose ancestors were in Siberia when he died, is disgraceful. If only the Tsar knew what evil his ministers are doing.

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AND HOLLYWOOD WONDERS WHY DOMESTIC BOX OFFICE IS DECLINING: An "Abortion Rom-Com"

"The movie isn’t saying that abortions are funny. It’s saying that people are funny.”

And people who procure and provide abortions are doubly funny. I look forward to the tv spinoff, Welcome Back, Gosnell!

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YOU NEVER LEAVE A MAN BEHIND! Unfortunately, we all too often leave man's best friend behind:

Even if it did come at some additional cost, so what? Going by simple cost-benefit analysis, the military wouldn't go to such great lengths to retrieve the bodies of fallen soldiers or protect the American flag, and yet it does. Why? Because everyone understands that such obligations are morally required and vital to morale.

"There are those who consider our military working dogs to be pieces of gear," Ferrell says in Glory Hounds. "I, for one, do not believe that at all. To try to remove your heart from the situation is really asking too much of a handler."

If you believe it's wrong for the army to abandon its dogs in the wilds of Iraq and (coming soon) Afghanistan, why not call your congressional representatives to let them know you support Walter Jones' bill prohibiting such practices, and may vote accordingly come November?

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"IT'S NOT MY FAULT IF WOMEN ARE LIKE THAT. I'm only drawing them. Women's bodies have taken this form over the millenia."

Spider Woman

Kid, if you have "forty years of experience" but you think that comic book covers depict women realistically, it's time to drop the pencil and maybe … go out and meet a few? Of course, comic books are hardly the worst media offenders with regard to horrifying displays of the female body. That honor goes to glossy "women's magazines" and the fashion industry to which they cater.

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THERE ARE CERTAIN SECTIONS OF HELSINKI, MAJOR, THAT I WOULDN'T ADVISE YOU TO INVADE: Finwonish Air Force moves to high alert after repeated airspace violations from Russia.

The giant brains in our administration seem not to have a clue on how to handle Putin. They could learn a lot from the Finns, who are masters of asymmetric warfare. An engineer of my acquaintance, who served as a frogman in the Finnish Navy, once told me that in the event of war the Finns would block access to the Baltic by destroying cargo ships at the mouths of Russian harbors. I believe him.