Browsing the archives for the Irksome category.


Controlling Public Art By Lawsuit: Japanese-American Citizens Sue To Remove "Comfort Women" Memorial

History, Irksome, Law

I have written about many maddening lawsuits at Popehat. But I cannot remember a lawsuit that so immediately repulsed and enraged me.

During the Second World War, the Empire of Japan sexually enslaved women — at least tens of thousands, and perhaps hundreds of thousands — to be raped by its troops. They were forcibly seized from the countries Japan occupied, primarily Korea. Though Japan officially apologized in 1993, in recent years right-wing forces in Japan have been seeking to retract those apologies, asserting that the enslaved women were actually voluntary prostitutes, or that the Empire itself wasn't involved in any coercion. This attempted walkback can best be understood in the broader context of Japanese nationalist politics, in which right-wing politicians play to their base by doing things like visiting shrines honoring war criminals.

Now Japanese-American plaintiffs, served by American megafirm Mayer Brown, are pursuing the agenda of reactionary Japanese politicians through despicable litigation.

Glendale, California is a suburb of Los Angeles. I grew up next door and still live there. It's incredibly diverse with many thriving ethnic communities. In 2013 the City of Glendale erected a modest memorial to the comfort women of World War II in a public park next to the library. Japanese politicians were enraged and have repeatedly demanded that the memorial be removed. The federal lawsuit filed by Mayer Brown seeks to have the memorial removed by force of law.

The plaintiffs in the lawsuit — which I have uploaded here — are Glendale resident Michiko Shiota Gingery, Los Angeles resident Koichi Mera, and GAHT-US Corporation, which says it is in the business of providing "accurate and fact-based educational resources to the public in the U.S., including within California and Glendale, concerning the history of World War II and related events, with an emphasis on Japan’s role." The plaintiffs complain that the presence of the comfort women memorial in Glendale causes them to suffer "feelings of exclusion, discomfort, and anger because of the position espoused by her city of residence through its display and endorsement" of the monument, and that they avoid the park because it shows a "pointed expression of disapproval of Japan and the Japanese people" and diminishes their enjoyment of the park. Though the lawsuit discusses a controversy over what the Empire of Japan did to women in the war, the complaint unsubtly conveys a position: "These women are often referred to as comfort women, a loose translation of the Japanese word for prostitute."

Plaintiffs argue in part that the City of Glendale did not follow its own rules in approving the exact language on the memorial. But their primary argument — the most shocking one — is that the City of Glendale cannot erect such a memorial because it violates the Supremacy Clause of the U.S. Constitution and interferes with the federal government's sole right to conduct U.S. foreign policy.

Glendale’s installation of the Public Monument has a direct impact on U.S. foreign policy that is neither incidental nor indirect. By installing the Public Monument, Glendale has taken a position in the contentious and politically sensitive international debate concerning the proper historical treatment of the former comfort women. More specifically, given the inflammatory language used in the plaque that is prominently featured alongside the statue, Glendale has taken a position at odds with the expressed position of the Japanese government.

Though the plaintiffs make this argument about the comfort women memorial in Glendale, it is nearly limitless in its application. For instance, though this fight is over a memorial, it could just as easily be about a city council resolution recognizing a day to remember some historical event. Similarly, though this fight is about the agenda of reactionary Japanese forces that seek to suppress discussion of wartime conduct, it could just as easily be about a hundred other historical disputes. If you think that's mere speculation, think again. Glendale, California and the surrounding communities are also home to one of the largest Armenian diaspora groups in the United States. Will Mayer Brown next be suing to force the removal of memorials to the Armenian Genocide, or to prohibit city councils from recognizing it, because it is extremely controversial to apologist forces in Turkey? Given the delicacy of U.S. relationships with the new government of Afghanistan, will someone use the federal courts to police the language of civic war memorials and commemorative statements across the nation, to make certain that they portray the Afghans as our allies?

This is not a First Amendment issue, exactly, because government entities don't have First Amendment rights. But it is an issue of federalism, of local self-determination, and of citizenship. Local citizens, through their local elected government, wished to recognize a historical atrocity using local government money on local government land. Their city did not purport to engage in negotiation with any foreign government or to take any position on behalf of the United States — they just took a position on behalf of its citizens. They did not do anything prohibited by the Constitution, like establishing a state religion. The notion that the federal government or the federal courts should regulate this expression is noxious.

Moreover, the argument against it is vague, unprincipled, and endlessly malleable. If a case like this succeeds, what will the courts say to a Holocaust denier who argues that a memorial is too harsh in condemning Germany, a nation with whom we have dicey relations? The plaintiffs here might argue that the difference is that recognition of the Holocaust isn't controversial and wouldn't anger most Germans, while the comfort women issue has angered Japanese politicians. But that's just another way of saying that foreign politicians should be able to dictate what American towns put on their civic memorials. The more that foreign politicians are willing to make demands and issue denunciations, the less free American towns would be to commemorate historical events. This would drive exactly the sort of entitled, thuggish behavior that Japanese politicians have shown here, issuing churlish demands that a foreign city shut up about their nation's history.

This lawsuit is thoroughly contemptible. It should fail, and everyone involved should face severe social consequences.

Edited to add: It occurred to me what this reminded me of: Croat lawfare trying to get Bob Dylan charged with hate speech for talking about Croat atrocities.

184 Comments

Rhode Island Cops Vigilant In Face of Scourge of People Making Fun of State Representative Scott Guthrie

Irksome, Politics & Current Events

Murder was the case.

No, wait. Mockery was the case.

Somebody was mocking Rhode Island state Representative Scott J. Guthrie. And not even because of his 'stache! No, someone put up a clearly satirical Facebook page about Guthrie, mocking him and attacking his political positions.

Guthrie, as an adult, a responsible citizen, and a government official who cares about the public fisc, laughed it off and talked to reporters about how it demonstrated that his ideas are right.

No, wait. That's the bizarro-America response.

This is the real America — the America of butthurt, the America of snivelers, the America of "I'm entitled not to be offended," the mewling o-help-me-nanny-state America.

So Scott Guthrie went to the cops, and the cops conducted a full investigation — including subpoenas — before realizing that putting up a satirical Facebook page is not a crime, even in a world where we have broad and vague and unprincipled "cyber-harassment" laws.

How extensive was the investigation? Consider the police report yourself.

It turned out that the satirical page was created by Republican Sen. Nicholas Kettle. Guthrie is a Democrat. Kettle, naturally, faced no official consequences; the young communications director who helped him make the page was fired. The communications director used legislative resources, a computer, to create the page, you see. There was no consequence for Guthrie using substantial law enforcement resources to investigate being made fun of.

Kudos are due to law enforcement for resisting the demands of a state legislator:

But on advice of a lawyer in Attorney General Peter Kilmartin's office, they concluded the creation of this fake Facebook page did not constitute "cyber-harassment."

After reviewing the case, "I was informed that a majority of the posts were constitutionally protected activity," and the others "would not have caused substantial emotional distress which is another required element of the crime," the lead detective, Kevin Harris, wrote in a report obtained by The Journal on Tuesday.

After speaking to Assistant Attorney General Ronald Gendron, "it has been determined that there is insufficient evidence to go forward with charges at this time," Harris wrote.

It would have been nice if they had come to that obvious assessment earlier, after a smaller expenditure of taxpayer funds. In their defense, they do far better than most.

But Guthrie may not be done:

But the case may not be over. Kilmartin spokeswoman Amy Kempe said Gendron provided an "initial assessment," but the attorney general intends to review the case. Guthrie said he may now take his complaint to federal authorities.

Scott Guthrie, you petulant, pusillanimous prat, you're a disgrace. You're a disgrace to adulthood. You're a disgrace to American citizenship. You're a disgrace to public service. Stop spending the taxpayers' money as an unguent for your butthurt and react like a grown up with some grasp of American values. Retaliate with a page about Kettle. It should be easy. Dude looks like a spotty douchebro.

(Hat tip to Nicholas Cote.)

46 Comments

Fear And Loathing In Falls Church

Irksome

CHAPTER ONE

David Brooks

The silver 2001 BMW 535i roared through Adams Morgan, occasionally screeching over the sidewalks as my accountant wrenched both hands from the wheel for another toke at the weed-pipe. "Gadzooks, man!" I shouted. "Can you keep it together for another fifteen miles, or at least outside the District limits?"  We were halfway through our 35 mile journey from Bethesda to Falls Church, with enough dangerous narcotics to stun a grizzly bear in the trunk: We'd started with nine ounces of weed, six rocks of crack, a sugar jar full of blow,  36 vicodin tablets,  a cage filled with live Bolivian arrow toads, and two jars of ketamine. Plus two quarts of Beefeater gin, a case of Schlitz malt liquor, and a four ounce ball of Afghan hash: Surely enough to get this pair of degenerate drug addicts to Fall's Church. After that what man could say?

It was Edmund Burke, the English statesman and philosopher of the Good Life, who asked, "What is liberty without wisdom and without virtue?" In the Burkean ethos, freedom unconstrained by wisdom "is the greatest of all possible evils; for it is folly, vice, and madness, without tuition or restraint." I reflected that Burke's wisdom had never been constrained by a head full of mescaline, or a heart thumping on two tabs of amyl nitrate, so perhaps there were things the grand old man of the eighteenth century British polity did not know.

"Keep your God-damned mitts on the wheel!" I shouted at my accountant as the BMW lurched off of the sidewalk, narrowly missing a parking enforcement officer who stood gaping in confusion at my accountant's attempt to achieve manned space flight using only the power of internal combustion and a brain tripping on liquid sunshine. "Do you want to get us busted?" There was madness in his eyes, but I couldn't help looking at his pant leg and his perfectly creased pant. And I was thinking, a) he got into the ketamine before we left Bethesda and b) we'll be staying overnight at the DC Correctional Treatment Facility for Narcotics Addicts. I put those thoughts out of my head, distracted by the mescaline-induced vision of my accountant vomiting up, one by one, the collected works of British conservative thought leader Michael Oakeshott, all bound in the finest red leather.

Oakeshott famously said that as civilized human beings, we are the inheritors, neither of an inquiry about ourselves and the world, nor of an accumulating body of information, but of a conversation, begun in the primeval forests and extended and made more articulate in the course of centuries. It is a conversation which goes on both in public and within each of ourselves. I believe that if our national political conversation were better informed by the spirit of Oakeshott, and less by the spirit of Manichaeism, ours would be a happier society.

But ours was not a happier society. This was fascist (or more correctly, corporatist) George W. Bush's America. Two years after the dawn of the new millennium Jesus was nowhere in sight, because the Feds were cracking down like sledgehammers on the ecstasy dealers. As senior political editor for the Weekly Standard, I had been sent to cover Bill Bennett's address on education policy at the annual convention of the Young Americans for Freedom. I was here to cover the story! And cover it I would, fueled by the finest mind altering products that 21st century biochemistry had to offer.

As we hit the Virginia line, I mused on the fine line that exists between a state of ordered liberty, in which government serves the needs of the majority, gently nudging the masses toward the higher pleasures, and the state of shocking, bestial depravity that was the passenger compartment of my accountant's BMW: open liquor bottles, a rear windshield plastered with pictures cut from the pages of Hustler and Love Bondage Fantasy! magazines, and in the vomit-drenched back seat, Kareem, a crack dealer we'd picked up in Anacostia, vainly trying to sleep off last night's festivities as the BMW careened from lane to lane like some cocaine-propelled mule train that never existed except in John Ford's wildest dreams.

"Kids today just can't handle their drugs," my accountant muttered through the shroud of opium that fogged his brain. "WHAT?!?" I shouted, cutting down the volume on the "Enter the Wu-Tang (36 Chambers)" compact disc my accountant had fished out of Kareem's backpack. And that's when it hit me, like an electro-plated dung truck: We were not living in John Ford's America. You see, the greatest of all Western directors, John Ford, actually used Westerns to tell a story not of rugged individualism, but to celebrate the notion of civic order. At his finest, Ford teaches us all about the concrete ways people build orderly neighborhoods, and how those neighborhoods bind together to form a nation. The West of Ford is a lawless  and disordered place, requiring the prepoplitical virtues of a man who possesses the willingness to seek revenge, to mete out justice on his own. That kind of person hardly makes for an ordered polity. But, as this sort of classic western hero tames the West, he makes himself obsolete. Once the western towns have been pacified, there’s no need for his capacity for violence, nor for his righteous justice. As New York University film critic Sander Starr has pointed out, in the individual are planted the seeds of his own destruction. Only through the mediating agency of the panopticon state can this tendency toward self-destruction be averted and channeled into socially productive uses.

"That's some super-heavy shit," I croaked, seizing the weed-pipe from my accountant's lap. "How many miles til Falls Church?"

"We passed it five hours ago. We'll be pulling into Virginia Beach any minute now. Should be lotsa hookers in town this time of year. It's Bike Week."

42 Comments

New From KlearGear: Free Speech, Only $3,500 Plus Shipping And Handling

Irksome, Law, WTF?

By popular demand — which is a polite way of saying yes, I heard about this, for the love of God stop sending me emails about it — it's time to talk about KlearGear, an online company that sells "desk toys" and gadgets and tchotchkes and such. Tim Cushing at Techdirt has the story.

KlearGear is not having a good week in the social media. That's because KlearGear attempted to enforce a jaw-droppingly repulsive and unethical fine-print-condition-of-sale to retaliate against a customer who complained about bad service.

The customer is Jen Palmer. She and her husband bought some bauble from KlearGear. It never came. They tried to reach customer service, and never could. So they left a negative comment about KlearGear on a gripe site. Three years later, KlearGear threatened them, saying they had violated a non-disparagement clause buried in those terms of use you never read before clicking "yes" when buying something online or using a website:

Non-Disparagement Clause

In an effort to ensure fair and honest public feedback, and to prevent the publishing of libelous content in any form, your acceptance of this sales contract prohibits you from taking any action that negatively impacts KlearGear.com, its reputation, products, services, management or employees.

Should you violate this clause, as determined by KlearGear.com in its sole discretion, you will be provided a seventy-two (72) hour opportunity to retract the content in question. If the content remains, in whole or in part, you will immediately be billed $3,500.00 USD for legal fees and court costs until such complete costs are determined in litigation. Should these charges remain unpaid for 30 calendar days from the billing date, your unpaid invoice will be forwarded to our third party collection firm and will be reported to consumer credit reporting agencies until paid.

The link to that language is from a web archive, because KlearGear has now sent it to the memory hole upon public scrutiny. Tim Cushing at Techdirt points out that, according to the Internet Archive, the clause didn't even exist when Jen Palmer clicked "yes" and bought her bauble from KlearGear. That suggests that KlearGear made a demand for money to Jen Palmer based on a contract she never signed. There's a word for that: fraud.

Could Jen Palmer defend a lawsuit on the basis that KlearGear can't prove that she agreed to the non-disparagement clause, because it wasn't on the site when she clicked "yes"? Yes she could. Could she also defend a lawsuit based on a variety of doctrines and defenses available when companies attempt to enforce bizarre hidden clauses in form contracts — sometimes called "contracts of adhesion" — against consumers? Yes. But a lawsuit isn't at the heart of KlearGear's despicable tactic. Ruining the credit of its critics is:

The clause goes on to say if a consumer violates the contract they will have 72 hours to remove your post or face a $3500 fine. If that fine is not paid, the delinquency will be reported to the nation's credit bureaus.

Once again — if KlearGear asserts falsely that someone accepted a contractual term, and asserts a debt based on that false statement, and reports that debt to credit agencies, that's fraud. It's not just a civil wrong, it's a crime.

I tried to get a comment from KlearGear. I tweeted their Twitter account. I left a message on their Facebook page. I repeatedly called "Rob Key," their "Media Relations" person, at the number they provided; it was constantly busy over two days. I called the main number on their website; the recording always says that a customer representative is unavailable on this time and to check the website. It's almost as if Jen Palmer's online criticism — that it's impossible to talk to a live person at KlearGear — is true.

KlearGear's non-disparagement clause is probably an effort to salvage a reputation hammed by bad results like an "F" grade from the Better Business Bureau in 2010, earned through shitty service.

Kleargear.com claims to offer products to "make your home and desk more fun with our desk toys, cool gadgets, stress relievers, games, cube decor, geek toys, and unique computer accessories." However, consumers across the country tell BBB that dealing with this company is anything but fun. BBB has issued an F rating to San Antonio-based Kleargear.com for failing to respond to consumer complaints. Click here to view the company’s current BBB Reliability Report™.

Consumer disputes received by BBB allege Kleargear.com does not deliver products purchased online in a timely manner and, in some cases, fails to deliver any product at all. Consumers further allege that attempts to contact the company go unanswered. In the past three years, 95 of the 123 disputes forwarded by BBB staff to Kleargear.com have gone unanswered, though some consumers later notified BBB they did eventually receive their products.

KlearGear's BBB rating has since improved. However, the Western Michigan Better Business Bureau reported in 2012 that KlearGear was falsely displaying a positive BBB rating on its web site:

As of November 28, 2012, the BBB became aware that the company's website is displaying a BBB Accredited Business logo and BBB Rating A+; however, the comapny is not a BBB accredited business and the BBB rating is not A+.

The BBB contacted the company regarding these issues and this matter is pending the company's response.

As of November 28, 2012, the BBB discovered that some pages of the company's website display the BBB Accredited Business Logo and state "BBB Rating A+", when neither is true.

The BBB contacted the company at the Michigan mail drop address instructing the company to immediately remove the incorrect BBB logo and reference from their site.

This matter is currently pending.

Companies, through the people who run them, can make errors of judgment. They can correct those errors, and consumers can make rational decisions that the company is again worthy of their business.

This is not such a situation.

KlearGear's non-disparagement clause is a contemptible, unethical, and un-American. I say that whether or not KlearGear is defrauding customers by citing the clause to customers who didn't even agree to it. You should not — you cannot — trust a company that hides in its small print a clause saying you can't criticize it for bad service. Only a dishonest and amoral company would insert such a clause into its terms of use. Only amoral and dishonest people, deserving of our contempt — owners, officers, employees, and company lawyers — would create and attempt to enforce such language.

KlearGear has begun to reap what it has sown. Techdirt, Simple Justice, Consumerist, and more sites have written about it. KlearGear deserves to fail as a business based on this conduct, and hopefully will. But that's not enough. Somebody needs to use public records to identify the owners and decision-makers behind KlearGear who countenanced this conduct, and any lawyers who participated in the threats to consumers. Their identity should be published, and they should suffer social consequences. Their communities, and their future potential employers or customers, should see them for what they are: scum.

Do you think KlearGear should suffer consequences for its actions? You can help by spreading the story.

Edited to add: In this life, you take your fun where you find it:

KlearGearFun

156 Comments

Let's Make One Thing Perfectly Clear: I Am Not A Racist Bigot. I Am A Cultural Bigot.

Irksome

You're probably familiar with the "Kinsley Gaffe," defined by the man for whom the term is named as what happens when a politician tells some obvious truth that he really shouldn't utter.  An example would be Gordon Brown's description of a bigoted woman as "a sort of bigoted woman," a truth that immeasurably assisted Brown in his quest for promotion from Prime Minister to United Nations Special Envoy for Education.

So far as I know, there is no shorthand term for a gaffe in which a public figure tells what he believes to be a truth, which in fact only reveals some unpleasant truth about the speaker himself. That's what Washington Post editorialist Richard Cohen has done in a disastrous column published Monday, where Cohen wrote that "[p]eople with conventional views must repress a gag reflex when considering the mayor-elect of New York — a white man married to a black woman and with two biracial children," and further in yesterday's attempts to clean up the mess he made, in which Cohen, complaining that people accusing him of racism and calling for his job just don't get it, revealed himself to be not a racist bigot, but a cultural bigot, a race-baiting hack, and a buffoon.

I'd like to offer the term "Cohenism" for this sort of gaffe.

family circus not me

Cohen begins with the standard lament that those demanding his head are taking him out of context. He didn't mean to say that conventional people (meaning most Americans including the New Yorkers who elected Bill DeBlasio mayor) become nauseous at the thought of an interacial couple, even though that's precisely what he said.

What he meant to say is, well, let's let Cohen speak for himself:

I don’t understand it …. What I was doing was expressing not my own views but those of extreme right-wing Republican tea party people. I don’t have a problem with interracial marriage or same-sex marriage. In fact, I exult in them. It’s a slander…

Ah, it's those extreme-right-wing Republican tea party people who blow chunks at the thought of the mayor of New York defiling his race with a dusky skinned woman. Though Cohen, with his layers of fact-checkers and editors, could not be bothered to name a single-extreme-right-wing Republican tea party person who disapproves of the mayor's marriage. Because it just goes without saying that they do. After all, they're … people with conventional views.

You know … diesel mechanics in Cincinnati, farmers in Iowa, Best Buy assistant managers in Bakersfield, English teachers in Alabama. Flyover people in flyover country…

The middle class.

People who could never get into the sort of swanky parties that award-winning Washington Post columnist Richard Cohen attends in midtown Manhattan, rubbing shoulders with the lettered, where they positively exult over interracial and same sex marriage, and over these arugula canapes Leon got from a caterer in the Village, and this magnificent Côtes du Rhône that cost $200.00 a bottle.

Oh, wait…

What I meant to say was, Richard Cohen cares for and respects the middle class. Richard Cohen is not an elitist asshole who spits on his readers. Richard Cohen wants affordable health care and decent jobs for everyone in flyover country America, and anyone who says different is a NAZI!

I think it’s reprehensible to say that because you disagree with something that you should fire me. That’s what totalitarians do.

I am about to send this email to the Washington Post:

To the editors:

It was disappointing to read Richard Cohen's Monday bloviation to the effect that the majority of the Post's readers ("people with conventional views") become sick to their stomachs when contemplating the biracial children of Mayor Bill DeBlasio. Sheltered as he is in his Manhattan enclave, Mr. Cohen perhaps is unaware that race relations outside Tribeca have improved greatly since the dark days of Jim Crow. It seems that Mr. Cohen has lost all touch with the America he writes about. Accordingly, I suggest that perhaps it is time to put Mr. Cohen out to pasture as a columnist emeritus, allowing him to retire into the sunset with his generous pension and the grateful memories of readers who recall the days when Mr. Cohen was sane.

Sincerely,

Joseph Stalin

UPDATE:

drudge-siren

 

Another example of Richard Cohen's unconventional thinking: He endorses random, suspicionless police searches of black and latino American citizens, because "Stop-and-Frisk" saves lives

87 Comments

If the Bitch Didn't Want Her Face Broken, She Shouldn't Have Mouthed Off

Irksome, Politics & Current Events, WTF?

That'll teach the bitch to show a bit more respect, amiright? After all she put both hands on the door frame and refused to oops, video evidence contradicts the police report. Still, she should watch that smart mouth of hers.

Via policestateusa.com via the always awesome @RickHorowitz.

In fairness to police, this is a one-time thing; it's not like cops make a habit of pushing mouthy people into concrete walls head-first to teach them extrajudicial lessons.

etc.

etc.

etc.

Q: How many cops does it take to throw a suspect down a flight of stairs?

A: None; he tripped.

86 Comments

Rotolight Tries To Unring The Censorious Bell

Irksome

Rotolight makes photography lighting systems; Den Lennie discusses and reviews them. Den Lennie posted a video review of a Rotolight product on Vimeo. Rotolight thought it was misleading and unfair. So Rotolight left comments explaining their point of view and posted a rebuttal on their website and publicized it through social media.

No, wait. That's the way a rational and honest company would handle it. No, Rotolight got the review taken down with a fraudulent DMCA copyright violation notice, as discussed here and here and here and here. Den Lennie got the takedown notice. When Lennie wrote about it, Rotolight showed up to, in effect, confess that it had made a bogus DMCA demand because it thought the review was unfair, and to assert a very stupid trademark argument:

RotolightAdmitsBogusTakedown

The DMCA notice was utterly, preposterously bogus for many reasons others smarter than I have already pointed out. The DMCA doesn't even apply to trademarks (as opposed to copyright), and even if it did, a product review can name the product without violating its trademark.

Rotolight is now experiencing the Streisand Effect, and has posted a statement on its website. The statement is part apology, part justification, and part evasion. Rotolight complains that the review was inaccurate because it depicted a unit that had since been repaired to correct a problem. They apologize for a "breakdown in communication," offer to give Den Lennie's F-Stop Academy a very expensive free device, and make many of the right corporate-rehabilitation-tour noises.

But Rotolight's explanation for what happened falls far short. It claims:

In this specific case, the video was not removed for copyright infringement reasons as has been widely reported. Rotolight received external advice with respect to this particular video that it was potentially misleading and unrepresentative. This advice resulted in the only request the company has made to have a video removed from any video sharing website in the last 3 years.

This makes no sense. Is Rotolight saying that they didn't send a DMCA notice, and Vimeo is lying? If so, why don't they say so, and release what they actually sent? Otherwise, if it wasn't a copyright issue, why did Rotolight use the DMCA? If Rotolight had an objection to a review being "misleading and unrepresentative," why did they use a mechanism that required them to assert copyright infringement and affirm a statement that said "I swear, under penalty of perjury, that the information in the notification is accurate and that I am the copyright owner or am authorized to act on behalf of the owner of an exclusive right that is allegedly infringed"? You say that you got "external advice" that the video was misleading, but carefully avoid saying you got advice to use the DMCA as a mechanism to attack it — did you or didn't you? If so, who gave you that idiotic advice? Oh — and if this was about an inaccurate review, why did Rotolight leave a comment on Den Lennie's post making a fatuous trademark argument?

Rotolight pleads with its detractors to think of its employees, saying that a bad review can hurt:

It is important to understand the damage that can be caused not just to our business, but to its hard working employees and their families, and also to the numerous other SME’s in our UK supply chain, whom we make a conscious effort to source components from in order to support our local business community, which is why we felt we needed to act.

Here's the thing, Rotolight. With all respect to Den Lennie, one review he posts on Vimeo is going to have a minor impact on your sales, particularly if you use your speech to rebut and correct it. By acting like a dishonest censorious douche, you have done greater harm to your reputation by — conservatively — three to four orders of magnitude. If your hard working employees and their families are angry, tell them to look to the Rotolight executives who made this decision and ask them: what the hell were you thinking? Why did you trash our company's reputation?

Edited to add: Commenter "guess who" provides evidence evidence casting substantial doubt on any assertion that Rotolight was ignorant of DMCA requirements.

Edited again to add: Vimeo has put the video back up. Want an idea of how awful Rotolight's judgment was? A source informs me that, prior to the takedown, the video had only 150 hits since March. This blog post alone — to say nothing of Techdirt, BoingBoing, or the others — has had 1500 so far today. That doesn't count people reading it on their feed. And it doesn't take into account the impact on Rotolight's Google results.

Third edit: I'm now allowed to mention that when I heard about this I offered Den Lennie to try to find pro bono counsel in case he needed it. Looks like he won't — Rotolight is in full retreat — but I want to thank Jason Sweet and Dan Booth of Booth Sweet LLP for stepping up and backing Den. Your rights depend on lawyers like that willing to step into the breach.

52 Comments

Somewhere In The Happy Hunting Grounds, Paul Mirengoff Is Smiling

Irksome, Language

You would think that James Meggesto, of powerhouse law firm Akin Gump's Native American lobbying practice, would know better than most that a poorly worded joke on the internet can ruin a career, given that Meggesto used a poorly worded joke to ruin Paul Mirengoff's career two years ago.

You would think.

(Via Above the Law, which observes: "For the record, when a tweet opens with “Resisting urge to tweet…”, you’ve failed.")

Edit:

To elaborate on why this is a big deal:

In his tweet, Meggesto, a lawyer representing clients with interests adverse to those of the witness, called the witness a liar, as the witness was testifying before Congress. This probably isn't actionable libel, as it fails to identify a false statement, and fails to name a time and place. If Meggesto had said, "the witness is lying right now, before Congress, as I tweet this," Meggesto would be in very hot water. Meggesto didn't quite accuse the witness of perjury, but he came close.

Meggesto's tweet also dances around the edges of the codes of ethics that govern attorneys. An attorney may not accuse a sworn witness in an adversarial proceeding of lying. There are many reasons for this, including decorum, respect for the court, and respect for witnesses, but the main reason, I think, is that a witness so accused cannot seek redress for the accusation: attorneys are generally immune from suit for statements made in an adversarial proceeding, about anyone. For instance, if I said about someone like Meggesto in court: "He isn't a real lawyer, and he doesn't have a real law practice: he only facilitates graft by funneling money to legislators with their hands out," the person of whom I was speaking couldn't sue me for defamation.

But since Meggesto wasn't appearing as an advocate before Congress that day, on that matter, he gets a pass.

By any measure, Meggesto's conduct is sleazy. He did call a sworn witness, appearing before a body with the power to require oaths in a matter adverse to the interests of his clients, a liar. He almost but not quite called him a perjurer, and he insulted a Congressman. Make what jokes about that you will, it's poor form for a man who lobbies Congress to speak ill, in public, of elected representatives.

Finally, and I can say this without fear of reprisal: Meggesto is stupid, a dumb braying ass who, if this is indicative of his intelligence and his character, has no business representing clients before a traffic court judge, much less Congress.

23 Comments

Outline For Cross Examination Of Doctor Anil Potti

Irksome

In case it ever comes up.

1) Are you now, or have you ever been, a Rhodes Scholar at the University of Oxford?

2) Have you ever applied for a Rhodes Scholarship?

3) If so, were you accepted as a Rhodes Scholar?

4) Have you ever studied, as a student or fellow, at the University of Oxford?

5) Have you ever been a member of the faculty at the University of Oxford?

6) At any time, have you ever claimed to be a Rhodes Scholar or former Rhodes Scholar?

7) At any time, have you ever claimed that you were accepted by the University of Oxford as a Rhodes Scholar?

8) At any time, have you ever claimed that you were a student, fellow, or faculty member at the University of Oxford?

9) [If the answers to questions 1-5 are in the negative, and answers to questions 6-8 are affirmative] Then why do you expect this jury to believe a single word you say?

10) Doctor, I'd like to discuss a phenomenon known as the "Streisand Effect." Are you familiar with that term?

To be supplemented as needed.

10 Comments

On Feeding Trolls

Culture, Irksome

For roughly a year, I've noticed a troubling tendency amongst some political and social commentators I follow: a trend towards zookeeper-like troll-feeding.

I'm not talking about ongoing commentary on an active evildoer — like, say, Craig Brittain, con-man and involuntary-porn sociopath. I'm not talking about toying with the occasional troll who traipses into the comments section.

Rather, I'm talking about people turning an unacceptable percentage of their attention not to the issues that concern them — issues like criminal justice, or war, or budgets, or whatever — but to fights with people who attack them because of their positions on their topics. Fights with trolls, in other words. Soon they have much less time to talk about substance, because they're spending so much time on process — the process of fighting critics. This often devolves into fighting not about disagreements over substance, but fighting about fighting — endless tit-for-tat over who said what about whom and who did what horrible thing to whom, and whether that horrible thing was fair response to what the other guy did, and so forth.

Now, some trolls are simply awful people. Some trolls do truly despicable things. It's entirely reasonable to be repulsed and offended and outraged by some troll behavior.

But nobody ever killed a troll by overfeeding it.

That's why some folks need new strategies. I like a recent one author and blogger John Scalzi has adopted, because it reminds me of my favorite method of dealing with real-world trolls like Westboro Baptist Church. Scalzi, dealing with a trolling critic, has announced that he'll donate to favored charities every time the troll mentions him in 2013. The charities are for causes that Scalzi likes and the troll doesn't. This has led to matching pledges currently totaling $50,000, and to widespread publicity that might lead to more pledges.

I probably agree with Scalzi on political and social issues less than 50% of the time. I agree with the troll's politics considerably less. (The troll is one of those types interested in dividing men into "Alpha" and "Beta" males. My views on that are paradoxical and recursive; I think that being concerned with dividing people into Alpha and Beta males, and certainly being concerned with whether one is viewed as an Alpha or Beta male, sounds like a very Beta way to think.) But whatever my disagreements with Scalzi, the solution is an elegant one.

Some of my friends and acquaintances out there — and you know who you are, I think — have you ever considered not being the zookeeper any more? It's not easy, I know.

36 Comments

"Do Not Taunt Mat"

Irksome

Really!

7 Comments

Professor Loomis and the NRA: A Story In Which EVERYONE Annoys Me

Irksome, Law, Politics & Current Events

Some stories have a good guy and a bad guy, a white hat and a black hat.

This is not one of those stories. This is a story in which everybody is pissing me off.

Professor Loomis Gets Upset

The story begins with Erik Loomis, an associate professor of history at the University of Rhode Island. Professor Loomis also blogs at Lawyers, Guns & Money and has — well, had — a twitter account.

Last Friday, as the unspeakable tragedy in Connecticut unfolded, Professor Loomis got upset. As described at Twitchy, he tweeted or retweeted violent rhetoric about the NRA, and then began to engage angrily with people who criticized his rhetoric:

First fucker to say the solution is for elementary school teachers to carry guns needs to get beaten to death.

I was heartbroken in the first 20 mass murders. Now I want Wayne LaPierre's head on a stick.—

Looks like the National Rifle Association has murdered some more children.

You are goddamn right we should politicize this tragedy. Fuck the NRA. Wayne LaPierre should be in prison.

Wayne LaPierre is a criminal and should be in prison for complicity with murder. 27 counts.—

Can we define NRA membership dues as contributing to a terrorist organization?

Larry Pratt and the group Gun Owners of America are terrorists and should be dealt with as such.

Professor Loomis' rhetoric had moderated somewhat four days later — but not by much.

The right-wing intimidation campaign against me for saying the NRA was a terrorist organization continues. Will not succeed.

Dear rightwingers, to be clear, I don't want to see Wayne LaPierre dead. I want to see him in prison for the rest of his life. #nraterrorism

Professor Loomis' behavior nicely suited a popular narrative — crazy liberal professor is crazy! — and so the story of his tweets spread fast to conservative sites like Campus Reform and American Thinker and Daily Caller and Townhall and The Other McCain.

It is right and fit that people react to expression they don't like — such as Professor Loomis' tweets — with more speech. Vividly expressing disagreement, contempt, and ridicule of his behavior is core First Amendment activity. To the extent that Professor Loomis is complaining about tweets, or blog posts, when he cites a "right-wing intimidation campaign," then he's a weakling and a whiner, someone who can dish out tough rhetoric but can't take it.

Regrettably, that's not all that's at issue.

I'm Not Going To Sugarcoat It

Professor Loomis' vivid tweets are not actionable threats. That is to say, they aren't "true threats" outside the protection of the First Amendment.

I could continue to blog about the application of the true threats doctrine until I'm blue in the face, analyzing Professor Loomis' tweets and comparing them to precedent. But I'm not going to waste the time. I can't imagine anyone who starts out thinking those are real, actionable threats being persuaded by any amount of analysis. This is not a close call. This is not close to the line. The tweets are obvious hyperbole and no minimally rational person could interpret them as anything else. To indulge in a level of bluntness equivalent to Professor Loomis: if you think those tweets are criminal threats outside the scope of the First Amendment, then (1) you're ignorant, probably willfully so, of fundamental American civil rights, or (b) you're not too bright, or (c) you're blinded by partisanship, or (d) more than one of those. Is that condescending? Is it arrogant? Tough shit. Deal with it.

More Speech vs. Censorious Retaliation

Even though Professor Loomis' tweets are not true threats, they deserve a forceful, vivid more-speech response in the form of tweets and blog posts criticizing and ridiculing him.

Regrettably, some people think "more speech" means "try to get him fired and arrested."

In a defensive and self-pitying post, he indicates he met with the police; the context suggests that someone called the police on him based on his tweets. A statement from the University confirms that people reported him to his employer — his state employer, which is bound by the First Amendment. The blogs are full of comments like these:

I just called the above number and reached a very nice lady in the President's office. They are obviously aware of Mr. Loomis' comments on various sites and Twitter and are keeping track of complaints. I urge everyone to call that number, but please DO NOT be abusive. I sense the lady answering the phone is offended as much as the rest of us by Mr. Loomis' comments. I, personally, suggested that this should be Mr. Loomis' last term at the university, since it also appears that he does not yet have tenure.

The president of URI posted this: www.uri.edu/news/memo/president/statement12182012.html

How about manning up and firing this coward?

And so on.

The university's response is weak:

The University of Rhode Island does not condone acts or threats of violence. These remarks do not reflect the views of the institution and Erik Loomis does not speak on behalf of the University. The University is committed to fostering a safe, inclusive and equitable culture that aspires to promote positive change.

Let me rewrite that so it sounds like they have a spine and a grasp of the mission of higher education:

Professor Loomis' remarks on a private Twitter account do not reflect the views of the University of Rhode Island or any particular member of its faculty or staff other than Professor Loomis. Many people — myself among them — are offended or disgusted by Professor Loomis' choice of rhetoric and hyperbole. However, vibrant debate of important public issues often involves pungent expression. Professor Loomis' expression is protected by the First Amendment and the University will let the marketplace of ideas address it.

To be fair to the bloggers, the ones I have seen are not explicitly calling for Professor Loomis to be fired or reported to the police. But they sure aren't responding to the "fire him" comments in the way I would hope they would. And they seem to be celebrating the fact that their readers are calling the police and trying to get Loomis fired. Consider Twitchy's triumphal posting of this Joshua Trevino tweet:

Looks like @ErikLoomis deleted his Twitter account. Huge @TwitchyTeam win.

People criticizing Loomis are not responsible for him deciding to delete his Twitter account; that's on him. But it's not clear to me how it's a "win" for Twitchy for Loomis to delete his account, unless — as Loomis would probably argue — the goal is not just to expose and criticize dipshittery like his, but to shut people up.

Some of these conservative blogs, on other occasions, have stood up for conservatives when people try to get them fired based on their protected speech — people like Patterico and Aaron Walker. They seem to have forgotten that value here.

I support, without qualification, people writing about Professor Loomis. I find his expression contemptible. But I also find the efforts to get him fired or arrested contemptible, and I find it highly regrettable that some blogs are, at the most charitable interpretation, acting as smirking spectators to that effort. The effort is not without cost, even if neither the police nor the University take action. Trying to get a professor fired for clearly protected speech promotes and contributes to the culture of censorship in higher education that FIRE fights and that Greg Lukianoff exposed persuasively in his recent book "Unlearning Liberty." Trying to get Loomis fired contributes to a culture in which people are disciplined for reading a book about the defeat of the Klan because coworkers find it "harassing" or threatened with disciplinary proceedings for putting up a Firefly poster or prohibited from using signs at protest because OMG 9/11. Calling the cops based on clearly protected hyperbole promotes and encourages a law enforcement culture that does things like launching "cyberbullying" investigations based on satirical criticism, nudging us further towards the theoretical British zero-point at which old men get questioned by the police for putting rather mild expressions of atheism in their windows.

I'm disappointed, and more than a little disgusted, that partisanship is more important than principle.

Professor Loomis Is No Hero

I started this post by saying that there are no good guys in this story, and I meant it. Erik Loomis is no hero. He's no free speech martyr.

It's not just because he likes hyperbole about killing people who disagree with him — though that is hardly a way to encourage the marketplace of ideas. No, what I find the most repulsive about Erik Loomis is that he equates petitioning the government for the redress of grievances with murder and terrorism — a point on which he continued to double down even after he had time to cool off and retreat from his violent hyperbole. He echoed that even in his self-justifying post about his experience:

Do I want to see Wayne LaPierre punished in the way many of us wanted to see Tony Hayward punished during the BP oil spill or the way many of us wanted to see Dick Cheney punished during the Iraq War. Of course. That would mean real accountability for causing immeasurable harm to families, nations, and/or nature. Do I think the National Rifle Association is culpable for the murders of thousands of people in the United States and Mexico because of the policies they support? Yes. Do I think it is reasonable to call the National Rifle Association a terrorist organization? Although obviously using more than a little hyperbole, yes. It is defensible precisely because the polices they support facilitate the terror unleashed in Newtown, at the Clackamas Town Center, at the Sikh temple in Wisconsin, at the theater in Aurora, at Columbine.

But here's the thing: in America, under the First Amendment, we hold people "culpable" for their effective policy advocacy by becoming a more effective advocate and convincing our leaders to move in another direction, or by convincing our fellow citizens to vote them out. Professor Loomis — perhaps because he is too banal, excitable, ineffectual, and self-indulgent to be an effective advocate — dreams not of rebutting arguments, but of rendering it unacceptable to make the argument in the first place. It's a familiar position — heard in talk of "fifth columns" and "objectively pro-Saddam" after 9/11, and heard in decades of "pro-criminal" smears applied to anyone who advocates for the rights of the accused. But Professor Loomis' it's-terrorism-to-advocate-that-right rhetoric reminds me most powerfully today of the government of Uganda, which would like not only to criminalize gay sex, but to make it a crime to advocate against the law itself.

Professor Loomis' position is fundamentally anti-speech and anti-petition. There's nothing to admire or respect about it. (I doubt there's even anything tactical to admire about it — I don't see advocacy premised on "it's illegitimate for you even to take your position" to be particularly persuasive to the American people.)

Bah. A pox on all your houses.

Edited to add: Here's a statement from the folks at Crooked Timber. I think they minimize what Loomis said and ignore his rhetoric that is, as I argue, fundamentally anti-free-speech. But I think they are completely correct in their call for protection of his First Amendment rights by both the university and society as a whole.

303 Comments

Jack Stuef Picks A Fight With Someone His Own Size.

Fun, Humor, Irksome

We don't like Jack Stuef.

Jack Stuef is a low level troll, a self-styled comic and self-styled journalist who was forced out of WONKETTE (think about that) for poor taste. Specifically, his taste in subjects for comedic journalism, such as handicapped children. Now Jack Stuef writes for Buzzfeed, which is sort of like Reddit without a downvote button.

So when Jack Stuef applied his talents, formerly devoted to mocking the disabled, to a hit-piece on Matthew Inman of The Oatmeal, we thought Inman would shrug it off. Inman, after all, is the internet equivalent of a former samurai turned buddhist monk, living on a mountaintop, a samurai who has abandoned the sword for a life of contemplation of the idea of a sword, who can now kill with a stick, or a blade of grass, or the Shao Lin Buddha Finger. Such a man does not lower himself to street brawls with thugs like Jack Stuef.

Still, even a master swordsman must defend himself from time to time: This is the result.

You're welcome.

96 Comments

Technorati Likes Me! They Reallly Like Me!

Irksome

From an email yesterday:

Re: Popehat & Technorati Media Advertising Partnership

Hi Ken,

My name is Justin

Hi, Justin! Are we going to have a pleasant relationship?

and I manage publisher relations

Wuh-oh.

for Technorati Media, the leading social media ad network and blogosphere destination

They should put "the leading social media ad network and blogosphere destination" in UrbanDictionary under "Word Salad." You can rearrange it endlessly. "The leading blogosphere network and social media ad destination." "The leading ad destination and social media blogosphere network."

Popehat.com is a fantastic site and I would love to establish a partnership to help you further monetize your traffic.

Justin, I don't want to get off on the wrong foot here, but I think you're a stinking liar. I don't think you, or anyone human responsible for targeting me with this email, has ever "read" or formed an opinion of Popehat. How many sites have you called "fantastic?" Would you still have called us fantastic if you knew that we consistently mock your profession as substanceless, loathsome, and bad for everyone involved? Also, you used "monetize your traffic" non-ironically, so fuck you very much.

We're currently working with similar publishers, including LawyersAndSettlements.com, DocStoc.com, DailyCaller.com, Alternet.org, TopClassActions.com, AmericaBlog.com, TheFreeDictionary.com, TheNewCivilRightsMovement.com, CommentaryMagazine.com, QuickAndDirtyTips.com, Care2.com, RealClearPolitics.com, & ChaCha.com.

Similar publishers, Justin? In what way are these "publishers" similar to Popehat, or to each other? You've mashed together a seemingly random collection of political blogs and shitty commercial linkfarms and ad-revenue-placeholders. If your goal was to convey to a potential customer that you're a competent marketer who could tailor a suitable advertising product for my blog, you've just started the interview with the equivalent of puking on my shoes and wiping your mouth with my tie. Seriously. Did a non-drunk human read that list?

On the advertiser side, we're connected to great brands like Microsoft, Toyota, Ikea, FedEx, Clorox, Sony, New Balance, Disney, Best Buy, H&R Block, Macy’s, Intel, Taco Bell, AT&T, Mattel, Hertz, Levi's, Dell, Chevron, JetBlue, & Verizon.

Bleeeeeeuuurrghhhhahahhhhhh. You just puked all over my shoes again, Justin. And I really thought you were done after the last paragraph. What does "connected to" mean? And what makes you think that anyone would think any of those brands are suitable for advertisements here? I mean, sure, I can see how you'd want Clorox after some of Clark's posts, but do we really strike you as a Disney outfit?

Please let me know if you are interested and would like to hear more. You can also apply to the network here. Thank you!

Regards,

Justin

I am not interested, Justin, and I would not like to hear more from you ever again. Thanks!

19 Comments

If This Be Censorious Asshattery, Let Michael Farris Make The Most Of It

Irksome, Law, Politics & Current Events

I don't know that Dr. Michael Farris, Chancellor of Patrick Henry College, will act like a censorious tool today or tomorrow. But as Patrick Henry said, “I know of no way of judging of the future but by the past.” So I'm betting on yes.

Patrick Henry College is a small, private, devoutly Christian college in Virginia. It's honest about speech — by that I mean, unlike schools that promise to celebrate and respect freedom of expression whilst enacting indefensible speech codes, Patrick Henry College is very forthright about restricting the expressive activities of its students. I condemn public institutions that suppress speech, and private institutions that promise freedom of speech but deny it, but when it comes to institutions like Patrick Henry I share The FIRE's viewpoint, which I would paraphrase as "you knew the job was dangerous when you took it, Fred."

So: I wouldn't spend much time on Patrick Henry College banning students from advocating gay rights on campus. I might find it repugnant, but it's their patch. However, when Patrick Henry College — through Chancellor Farris — starts to threaten lawsuits based on criticism of the school from a gay rights perspective, I become perturbed.

The blog queerphc, or "Queer at Patrick Henry College," says up front that it is not part of or endorsed by the college, but is written by Patrick Henry students unified by "our desire to help and encourage other Patrick Henry College students, current and former, in any way that we can." The blog covers things like the ongoing dialogue about conflicts between sexuality and religious dogma at Patrick Henry and disputes over the very language of the discussion about sexuality.

This was apparently intolerable to Chancellor Farris, who should have listened to Patrick Henry: “For my part, whatever anguish of spirit it may cost, I am willing to know the whole truth; to know the worst and to provide for it.” Chancellor Farris issued a foolish threat — not merely of academic consequences to the anonymous Patrick Henry bloggers, but of legal consequences. He wrote a threat on the blog's Facebook page:

This page is in violation of our copyright of the name Patrick Henry College. You are hereby notified that you must remove this page at once. On Monday we will began [sic] the legal steps to seek removal from Facebook and from the courts if necessary. In this process of this matter we can seek discovery from Facebook to learn your identity and seek damages from you as permitted by law. The best thing for all concerned is for you to simply remove this page.

Find another way to communicate your message without using the term ‘Patrick Henry College’ in any manner.

Had Patrick Henry College at last been brought to such a humiliating and debasing degradation, that we cannot be trusted to endure criticism on a blog? Apparently.

Then people started to take notice. Paul Alan Levy of Public Citizen called Chancellor Farris to inquire whether he is represented by counsel in the matter. If you are a reckless would-be censor, such an inquiry is about as ominous as a call from your doctor asking "how quickly can you get in to discuss the extremely alarming things our team has discovered on your rectal X-ray?" Within minutes, Farris publicly retreated:

After further consultation, I withdraw my note from yesterday. While we believe in the inappropriate nature of the use of our trademarked name, we believe that litigation is not appropriate.

Patrick Henry said that "the battle, sir, is not to the strong alone; it is to the vigilant, the active, the brave.” Of course, the vigilant know which battles to pick in the first place, and don't make utterly reckless and legally specious threats. As Levy says, "Apart from displaying his ignorance about the difference between copyright and trademark, Farris showed his lack of familiarity with the rudiments of trademark law, which allows bloggers to use the name of the target of their criticism to identify the pages where the criticism appears."

Farris retreated ignominiously from the field, but it was too late to salvage his reputation as an attorney. Levy picked it up, as did New York Magazine. The lesson is a sharp one: foolish litigation threats may lead to public humiliation. They should. It is the solemn duty of everyone who cares about freedom of expression to contribute to that public lesson.

But it is not just censoriousness that has lost here. Some opponents of gay rights, and critics of increasing tolerance of gays, view homosexuality as a weakness. How appropriate, then, that their credibility and cultural sway continues to be undermined by their own human frailties — hubris, ignorance, and misguided wrath. They are losing. Good.

22 Comments
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