Category: Politics & Current Events

Ten Points About Speech, Ducks, And Flights To Africa

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1. The First Amendment protects you from government sanction, either directly (by criminal prosecution) or indirectly (when someone uses the government's laws and the courts to punish you, as in a defamation action). It is currently in vogue to exclaim "NOBODY IS ARGUING OTHERWISE" when someone makes this point. Bullshit. People are consistently saying that private action (like criticism, or firings) violates the First Amendment, either directly or through sloppy implication. Promoting ignorance about our most important rights is a bad thing that we should call out, even when we're currently upset about something. Our rights are under constant assault on multiple fronts, and when we encourage citizens to misunderstand them we make it easier for the government to whittle them away.

2. The phrase "the spirit of the First Amendment" often signals approaching nonsense. So, regrettably, does the phrase "free speech" when uncoupled from constitutional free speech principles. These terms often smuggle unprincipled and internally inconsistent concepts — like the doctrine of the Preferred+ First Speaker. The doctrine of the Preferred First Speaker holds that when Person A speaks, listeners B, C, and D should refrain from their full range of constitutionally protected expression to preserve the ability of Person A to speak without fear of non-governmental consequences that Person A doesn't like. The doctrine of the Preferred First Speaker applies different levels of scrutiny and judgment to the first person who speaks and the second person who reacts to them; it asks "why was it necessary for you to say that" or "what was your motive in saying that" or "did you consider how that would impact someone" to the second person and not the first. It's ultimately incoherent as a theory of freedom of expression.

3. Notwithstanding #2, the concepts of proportionality, community, dialogue, love, charity, grace, empathy, forgiveness, humility, and self-awareness are all values decent people ought to apply to a discussion. They aren't about free speech or the First Amendment; they are about humanity. They are more powerful and convincing when applied consistently — when you do not demand grace of others than you aren't willing to extend yourself. That doesn't happen much.

4. The marketplace of ideas assigns consequences to all participants. That means, for instance, that A&E might suffer market consequences for its behavior. That's a feature, not a bug.

5. A substantial percentage of outrage is bullshit. So is a substantial percentage of outrage about outrage, and so on. Outrage is often about consolidating political power and promoting the view that your political opponents are horrible people. Much of the dialogue about Mr. Robertson being suspended from A&E consists of partisans eager to use the opportunity to argue that (1) people like Mr. Robertson are horrible people or (2) people who criticize Mr. Robertson are horrible people. Outrage is often an occasion for "THIS JUST PROVES WHAT I AM ALWAYS SAYING ABOUT THEM," with the particular case a thin disguise. Yes, when I do it, too.

6. Companies make decisions about hiring and firing based on both money and company culture. Sometimes these decisions are "right" in the sense that the decisions accurately predict what outcome will please the most customers and advertisers and keep revenues up. Sometimes the decisions are New Coke. Often the stated reasons for the decisions are hypocritical bullshit, as in the case of A&E. That's the way it works. Discussions about corporate decisions in the wake of controversy are dominated by (1) people who normally excoriate corporate decision-making but suddenly applaud it when the outcome suits their political beliefs, and (2) people who normally celebrate the market and promote the privilege of corporate decision-making but suddenly find it unpalatable when it produces a result that offends their politics. Some of the people applauding A&E are people who last week were furious at the concept that companies have First Amendment rights. Some of the people trying to conflate A&E and the government are people who last week were vigorously arguing that companies should not have to insure birth control if it offends their religious sensibilities.

7. Bad behavior is not a zero-sum game. If a person is a public relations executive, and identifies themselves as their employer's public relations executive on their Twitter account, and then uses that Twitter account associated with their employer's name in a way you'd use a private account — being edgy, vulgar, saying things that might offend people, and what have you — then they are bad at public relations and doing their employer a disservice. Being a corporation's public relations executive is not a vehicle for self-expression. But if people offer a wildly disproportionate, unmerciful, un-empathetic, graceless, ugly response — like the hashtag #HasJustineLandedYet, salivating over knowing the precise moment someone learns she has been fired for her very stupid behavior — then they are still deplorable. The bad judgment of the PR executive does not diminish the deplorable behavior of the voyeurs, and the deplorable behavior of the voyeurs does not diminish the very bad judgment of the PR executive.

8. The fact that a viewpoint is contained in your holy book does not insulate it from criticism. The fact that a viewpoint is part of a person's faith tradition might lead you to consider proportionality, love, charity, grace, empathy, forgiveness, humility, and self-awareness in framing a response to it. On the other hand, it's reasonable to exercise proportionality, love, charity, grace, empathy, forgiveness, humility, and self-awareness in thinking about how your faith doctrines make other people feel. "You're going to Hell, but you shouldn't be offended when I say so, because it's in my holy book," is not a cunning argument. Also: maybe there's someone who is consistent about all holy books when arguing "you should cut them a break because it's in their holy book," but I personally have not met this person.

9. Most major American political groups participate in the politics of outrage and the tactic of "look how this person represents Their Side." Maybe there's someone capable of a principled empirical analysis of who does it more, but I doubt it. I don't trust your gut about who does it more, and you shouldn't trust mine.

10. You have no right to be free of offense. You also have no right to be free of people telling you that you are offensive. You only have a right to govern how you will react.

I'm on hiatus. I hope to be back in January.

Puff the Magic Dragnet

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Talking around the edges of what's classified is all the rage these days. See, for example, the commercial for the NSA that ran on 60 minutes tonight.

In that vein, a former employee of Tailored Access Ops explains (within Info Assurance guidelines) what he did at the NSA and why he's ok with it.

Insufficiently discussed in most rants about the NSA is this question: if the only way to find the needles in a haystack is to store the entire haystack, and if you're against storing the entire haystack, and if you insist that it's vital to find the needles, then given the size and growth rate of the haystack, how do you propose doing that?

Some are ok with storing the haystack. That's the status quo.

Some are against the haystack and also don't think finding the needles is all that important. After all, more die at the hands of swimming pools and ladders, etc….

But for those who think proactive action against malevolent actors is desirable, how (apart from surveilling a subset of exhaustive data) shall we winnow them out of an ever-increasing crowd and discern their voices in an ever louder din?

If not this way, then how?

if you MARRY! like your REPRODUCE! doctor you OBEY! can keep NO INDEPENDENT THOUGHT! your doctor. SUBMIT! if you CONSUME! like your STAY ASLEEP! plan you can WATCH TV! keep it. BUY! period. NO IMAGINATION!

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According to Google, socialist realism is "the theory of art, literature, and music officially sanctioned by the state in some communist countries (esp. in the Soviet Union under Stalin), by which artistic work was supposed to reflect and promote the ideals of a socialist society."

Let's remove the term "socialist," and replace it with "government." Does the government have a theory of art, literature, and music officially sanctioned by the state, by which artistic work is supposed to reflect and promote the ideals of the party in power, and government in general?

Ask the Department of Health and Human Services, which awarded Erin McDodald a "Grand Prize" for her Youtube video, "Forget the Price Tag!" encouraging the poor, meaning young Americans, to buy overpriced insurance they probably don't need in order to subsidize the rich, meaning their parents and grandparents.

The lyrics read as follows:

Seems like everything's about to change, in the health care industry.
When coverage expands, and they can't reject you for conditions that are pre-existing!
You're young and wild and free, but you need to stay healthy!
There's no excuse to be uninsured. Just stop for a minute and think!

You're not immuned [sic] to all disease. Take advantage of this opportunity!
Keep your mind at ease and get some security!
Don't need a lot of money, money, money!
To stay young and healthy, healthy, healthy!
We just want to make it more fair, with affordable health care.
Ain't about the, UH!, cha-ching, cha-ching.
Ain't about the, YEAH!, bling, bla-bling.
Affordable Care Act, don't worry about the price tag!

I know we're in our prime, about time we open our eyes.
We got to invest to be the healthiest! You can't put a price on life.
Why is everyone so oblivious?
Living without health care is serious!
Can we all slow down? Take time now, guarantee we'll be feelin' all right!

You're not immuned [sic] to all disease. Take advantage of this opportunity!
Keep your mind at ease and get some security!
Don't need a lot of money, money, money!
To stay young and healthy, healthy, healthy!
We just want to make it more fair, with affordable health care.
Ain't about the, UH!, cha-ching, cha-ching.
Ain't about the, YEAH!, bling, bla-bling.
Affordable Care Act, don't worry about the price tag!

This is what literary critics refer to as, "bad poetry!"

But on a more practical level, the UH! cha-ching, cha-ching, and the YEAH! bling bla-bling! are exactly what most young people are worried about, at least if the ones asking me for a job are representative. They seem to be very much worried about the money, money, money! because of the students loans, student loans, student loans! And while they're not immuned [sic] to all disease, they do seem to be aware that no amount of money, money, money! will allow them to "stay young." They age as rapidly as I do, and they seem to want to be where I am when they hit the ripe old age of 46.

More's the pity.

In any event, on watching the Grand-Prize winning video by Ms. McDonald, I was struck by its message. Don't think of yourself, your family, or the family you'd like to have some day, if you can get out of your parents' house to afford such a thing. Think of the government! Think of the state! Ask not what your country can do for you. Ask what you can do for your country.

Don't worry about the price tag! MARRY! REPRODUCE! OBEY!

Why Is a British-Recognized Esquire Asking Questions in an American Court?

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I think I've mentioned that I don't acknowledge the legitimacy of the US government for Spooner-like reasons, and I consider most LEOs thugs.

…and yet, after watching this, I find that there's a part of me – a very small part – that really just wants to curb-stomp Natural Law protesters.

Get off my lawn side, you damned hippie kids!

The Necrogenomicon

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Msgr. Falda: The language of the Necrogenomicon is arcane; its meaning recondite. If we give it, in its many variants, into the hands of the people, there's no telling what they may do with it!

Bro. Laxman: But, with respect: it already resides in their hands, and hearts, and indeed in all parts of them. It lives in them, and through them, and they in and through it. Most literally.

Msgr. Falda: But it requires interpretation. Trusted interpretation. Authoritative interpretation….

Bro. Laxman: To be sure, many details of life benefit from the wisdom and insight of experts. But nobody wants to do away with authorities and experts. It's merely that the people want to read the language of the text themselves, and perhaps consult with others who know more than they.

Msgr. Falda: This cannot be! If the people read for themselves a text they do not, and probably cannot, comprehend– and if they follow the guidance of whomever they will rather than that of a rightful shepherd of the flock– then they may go astray, not only in understanding but most certainly in action as well!

Bro. Laxman: But the people may already consult whomever they will, and go as they choose, and understand according to their lights, and act, possibly, in manners untoward.

Msgr. Falda: Precisely! And uncovering these truths to them all at once, in bulk, and without appropriate commentary may mislead them further! What if one of them comes to a false understanding and seeks to cut off his right hand?

Bro. Laxman: We already govern the chirurgeons, my lord.

Msgr. Falda: But… but what if one of them seeks to foment rebellion?

Bro. Laxman: We already regulate the militia, my lord.

Msgr. Falda: And what if one of them, for want of understanding, annoys a deacon with babble and the ill-gotten fruit of a meandering mind?

Bro. Laxman: Then he will tell him to stop, my lord. And perhaps help him to understand the limits of his own horizon. Knowledge is seldom fatal, and even a false understanding will seldom bring about grievous harm….

Msgr. Falda: But we are the gatekeepers, Bro. Laxman! We are the gatekeepers.

Bro. Laxman: And each of the people, my lord, is the gate. Shall we keep it closed and guarded as for war, or open as for peace, its perimeter defended?


The FDA reckons that the product provided by 23andme is medical equipment, and that some subset of the corresponding service constitutes medical advice. So the FDA wants a piece of the actionto be sure that the people are protected from the dangers of possibly false or misleading information coming through unauthorized, unregulated channels. 23andme has been draggin' its feet in response to FDA demands, perhaps because of disagreement about whether personal genomics, a new application of new technologies, actually falls squarely within the current regulatory regime.

BoingBoing provides a cartoon and a cluster of links to articles that offer a fresh and useful overview of the issues at hand.

A bunch of dead people gave me their chromosomes. Ever since, I've been trying to figure out to how organize and use them. Not too long ago, I sank a Frank' into the "Health and Ancestry" personal genomics kit from 23andme. Just in time, since the FDA has asked them to stop making sriracha until the neighbors' complaints can be mollified. Last I heard, 23andme is making nice in words about compliance and cooperation but declining actually to comply… for now. "Can't we all just get along? I'm sure there has been some sort of misunderstanding. We've made a hash of it with our tardy replies, but we do, genuinely, truly, from the bottoms of our heart, love and respect you. It's not you; it's us."

(BTW, feel free to use me as a referral once they sort things out! That'll add $5 to my book-buyin' fund. ;) )

Did the results of my test solve any deep mysteries? No, although I learned some things about my ancestry that I hadn't previously known and have since confirmed genealogically. Did health information spur me to bum rush the medical staff at my PCP's office and demand that they do X, Y, and Z forthwith? Not at all. Was it entertaining and informative? You betcha! And did it prompt me to try to learn more about genetics, genomics, and gymnastics? Indeed, it did. I was floored by the exercise, which set a high bar, and I wouldn't call my efforts so far a ringing success, but that's ok since I'm just horsin' around.

Herewith, some observations. First, 23andme takes a conservative approach to analysis; if you download your genome info, upload it to GEDMatch, and run some alternate analyses offered as freeware by genetic hobbyists or rogue professors, you may see more– or different– information about haplogroup classifications and ethnic origins. Using a different commercial service, such as FamilyTreeDNA, may likewise provide more granular results. But for 99 clams, 23andme delivers the essential and allows some speculative tweaking to see alternate results. That's good enough for the casual consumer; those on a mission may need more.

Second, the community forum at 23andme.com is fairly primitive. For example, email notification for followed discussion threads is an all-or-nothing affair. Searching is non-existent. Redundant threads occur because there's no fast, non-awkward way to find out whether an appropriate thread already exists.

Third (and this is probably true of all personal genomics communities at present because this industry is larval), the points of light are far outnumbered by the blobs of smog. To phrase it with greater diplomacy, the discussion forum is overrun by understandbly curious and uninformed users whose questions, and whose answers to others' questions, are flat out wrong. In the midst of all that noise, a few valiant and well-informed hobbyists (plus the occasional professional) who have dedicated themselves to the task try to set things right. Sadly, the forum software sees those contributions fade rapidly into undiscoverability.

I trust the quality of discussion will improve there, and elsewhere, as education improves and interested parties take advantage. Indeed, 23andme provides a number of informative introductory videos and simple essays that lay out the basics while identifying some of the limitations and nuances. But reading and watching videos are homework, and nothing guarantees (nor should guarantee in that sort of forum) that everyone who speaks has done that homework.

Do you have some experience with personal genomics services? What was your experience? Did you learn anything surprising or interesting that you'd like to share? What do you think of the policy issues underlying the FDA's attempt to regulate 23andme?

If You Go Far Enough Right OR Left, You'll Wind Up At Segregation Again

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Now and then I write about a conflict between "multiculturalism" — as that term is understood by some — and certain core values. Those values include the rule of law, and the equality of all humans before it, and freedom of expression, and freedom of worship.

"Multiculturalism" and "core values" need not conflict. Rationally understood, multiculturalism is simply an openness to ideas and contributions from cultures other than our own, and an interest in the history, artistic expression, and philosophy of other cultures. Multiculturalism encourages us not to be hostile to or afraid of something because it originates from somewhere else. Multiculturalism is not having a shitfit because salsa is more popular than ketchup now, and not assuming that a culture is doomed based on ethnic demographic shifts..

Improperly understood by some, multiculturalism encourages abandoning core values at the demand of another culture that doesn't share them. Demanding that a book be destroyed because it teaches girls how to play didgeridoos and girls aren't supposed to play digeridoos in Aboriginal culture is an example. Demanding that Western countries respect non-Western values and enact laws criminalizing blasphemy is an example. People who oppose our core values everywhere are perfectly capable of exploiting this unprincipled view of multiculturalism:

So, please respect our religions, cultures and traditions by keeping your homosexuality out of our country.

This month brings the latest example: universities segregating public meetings based on the culture-based demands of the speakers.

For some time there as been controversy about universities in the United Kingdom allowing Islamic speakers to require gender segregation of public events using university facilities. Recently Universities UK — an advocacy group for UK universities — published a policy that encouraged accommodation of speakers who wished to demand gender segregation of events on university campuses. Bear in mind we are not talking about meetings of a student group — which might be governed by values of freedom of association — but outside groups using university facilities for public events. I quote at length, because the mushy and unprincipled discussion is lengthy:

Aside from freedom of speech and the s.43 duty, the paramount issue is to consider how equality obligations apply, and how those interact.

• For example, under the Equality Act 2010, the first question is whether the segregation is discriminatory on the grounds of a protected characteristic within the definition of the Act. Segregation in the context of the facts outlined above would only be discriminatory on the grounds of sex if it amounts to ‘less favourable treatment’ of either female or male attendees.

• It will therefore, for example, be necessary to consider the seating plan for any segregation. For example, if the segregation is to be ‘front to back’, then that may well make it harder for the participants at the back to ask questions or participate in debate, and therefore is potentially discriminatory against those attendees. This issue could be overcome assuming the room can be segregated left and right, rather than front and back (and also ensuring that appropriate arrangements are made for those with disabilities).

• Consideration will also need to be given to whether imposing segregation on everyone attending the event is required (see below). If it is required, this may amount to less favourable treatment of other attendees because of a protected characteristic. On the face of the case study, assuming the side-by-side segregated seating arrangement is adopted, there does not appear to be any discrimination on gender grounds merely by imposing segregated seating. Both men and women are being treated equally, as they are both being segregated in the same way. However, one cannot rule out the possibility that discrimination claims will be made on other grounds. For example, it is arguable that ‘feminism’ (bearing in mind the views of the feminist society referred to in the case study), or some forms of belief in freedom of choice or freedom of association, could fall within the definition of ‘belief’ under the Equality Act. This would in turn mean that applying a segregated seating policy without offering alternatives (eg a nonsegregated seating area, again on a ‘side by side’ basis with the gender segregated areas) might be discriminatory against those (men or women) who hold such beliefs. However, the question of whether such beliefs are protected under the Act is unclear without a court ruling. Further, an act of indirect discrimination can be ‘objectively justified’ if it is a proportionate means of achieving a legitimate aim, meaning the institution should also have regard to its other obligations under the Equality Act and the s.43 duty to secure freedom of speech, for example.

It should therefore be borne in mind – taking account of the s.43 duty, as well as equality duties and Human Rights Act obligations – that in these circumstances, concerns to accommodate the wishes or beliefs of those opposed to segregation should not result in a religious group being prevented from having a debate in accordance with its belief system. Ultimately, if imposing an unsegregated seating area in addition to the segregated areas contravenes the genuinely held religious beliefs of the group hosting the event, or those of the speaker, the institution should be mindful to ensure that the freedom of speech of the religious group or speaker is not curtailed unlawfully. Those opposed to segregation are entitled to engage in lawful protest against segregation, and could be encouraged to hold a separate debate of the issues, but their views do not require an institution to stifle a religious society’s segregated debate where the segregation accords with a genuinely-held religious belief. The s.43 duty requires an institution to secure freedom of speech within the law.

Notice a few things about this. First, see how utterly useless it is as a guideline to any actual human being making a real decision about a real-world event. Second, see how academicians can simultaneously kowtow to and insult identity groups — for instance, the scare quotes around feminism. Third, note how the ethos of Universities UK create a ill-defined protected right to segregate at public events at a university, a right that must be "balanced" in some obscure way against values like equality of access. Note also how the Universities UK approach results in an unprincipled and self-parodying jumble of interests groups, in which yielding to a gender segregation demand is objectionable not because universities shouldn't be gender-segregating public events in 2013, but because gender-segregating might lead to impaired access for the disabled.

Universities UK has reacted to criticism by claiming that it doesn't promote gender segregation That's right: it doesn't promote it, it simply advocates accommodating it on the premise that a group's culture-based desire to segregate a public meeting on a university campus is of equal value as the university's core value of equality of access. Or at least, Universities UK wishes to accommodate some cultures. Let's be clear: this is not about equal respect for all viewpoints. There is precisely zero chance that Universities UK would have drafted this policy to support the beliefs of Christian or nativist groups. Universities UK is not going to write feckless hand-wringing policies about accommodating the BNP in excluding non-whites from speeches, nor should they. Universities UK is not going to write drivel explaining how to balance the desire of some fringe Christian group to exclude gays from speeches, nor should they. [Edit: as a commenter points out, a fairer analogy would be the BNP or religious groups insisting that non-whites or gays sit separated from others at the speech.] Universities UK and other groups of its ilk are proceeding from foolish and wrong view of multiculturalism: that the requisite respect for other cultures includes accommodating demands that violate core values, whether that means segregating public events on university campuses or pursuing deeply embarrassing and ridiculous anti-offense policies.1

University UK's input is quite controversial and has been roundly condemned. This brings predictable and unserious smears from the sort of people who think that multiculturalism requires uncritical deference to practices that violate core values:

In allowing its website to be used to petition against the right of Islamic Societies to determine the running of their own meetings, Avaaz is endorsing cultural imperialism and side-lining of an entire culture within our Universities. The petition represents an attempt to force Western culture into the meetings and events of women and men who subscribe to another culture. This is not tolerance, freedom or any other form of positive. Never underestimate the ability of White Men to use Women of Colour as a means to espouse racism and cultural superiority.

Look: if you want to have a private group that segregates, have a private group that segregates. If you want to determine the determine the leadership of your own group, determine the leadership of your own group. But if you want to hold an event open to the public on a university campus, and you want to demand that the university cooperate with and enforce your segregation requirements, then fuck off. If that's cultural imperialism, then hand me a pith hat and quote me some Kipling. The same goes for demands for censorship. My respect for your culture ends when you use it to demand that my nation censor speech to meet your tastes and join a system of brutal and minority-oppressing anti-blasphemy laws.

The post-9/11 world has triggered a lot of anti-Muslim dipshittery, from the increased prominence of anti-Muslim lunatics to paroxysms of idiocy over things like turning a Burlington Coat Factory into a mosque. It's good to call out and criticize that, and generally to resist the siren call to demonize The Other. But on the other hand, open-mindedness and charity towards other cultures doesn't require us to abandon the values that ought to be at our core. Should we look at the censorious and prejudiced motes in our own eye before picking at the eyes of others? Certainly. That's only honest. But we need not adopt censorship or segregation ourselves just because someone else says that's their cultural value. That view of multiculturalism is entitled to no respect.

Hat tip to Ophelia Benson for her coverage of the issue.

Dispatches From The Junk Science Front

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In 2008 I pointed out that the TSA's pseudo-scientific "behavior detection" program seemed almost indistinguishable from random chance. Five years and millions of gropes-by-government-agents later, the General Accounting Office agrees:

The program called Screening of Passengers by Observation Techniques (SPOT) trains TSA officers to identify suspicious behavior that could reveal a terrorist. While it has been criticized for years for alleged racial profiling, TSA officials say it is a key part of screening airline passengers.

The Government Accountability Office reviewed 400 studies over 60 years that found people are only slightly better than chance at spotting deceptive behavior. And a Department of Homeland Security study in April 2011 intended to validate the program was unable to demonstrate its effectiveness because of unreliable data, according to the new GAO report.

The program has cost a billion dollars. The TSA can't demonstrate that it works using accepted scientific means. The TSA's reaction is unsurprising: "yeah, well, our other methods are even worse:"

Behavior Detection Officers also operate a program called Managed Inclusion which evaluates passengers at the checkpoints and allows some to enter the faster Pre-Check lanes.

"Defunding the program is not the answer," Pistole said. "There would be fewer passengers going through expedited screening, there would be increased pat downs, there would be longer lines, and more frustration by the traveling public."

Or, put another way, a piece of shit is better than no piece of anything:

The union representing TSA officers defended the program.

"An imperfect deterrent to terrorist attacks is better than no deterrent at all, " said American Federation of Government Employees National President David Cox, speaking in a conference call after the hearing. "Is it a perfect program? No, but until we have a better program, we shouldn't just trash and burn this program."

That's so sciency! "Well, I can't prove this hypothesis. But until I come up with a better hypothesis, I think we should stick with this one."

Meanwhile, in Texas . . .

. . . did you just say "aw, shit, this is gonna be awful, because it's Texas?" Perhaps you did. Perhaps you are not completely unjustified in leaping to that conclusion. But you're wrong. Texas, it turns out, passed an innovative law to allow prisoners to attack convictions premised on discredited junk science spouted by prosecution "experts." Last week, using that law, a Texas court overturned the convictions of four women caught up in the "ritualized child abuse" scare of the 1980s and 1990s:

Indeed, at the original trial of the San Antonio Four, a pediatrician testified that the victims exhibited physical signs of sexual abuse. This expert testimony provided the prosecution with much needed corroboration of the two girls' stories. Such medical testimony, however, has now been debunked by new understandings in the field of pediatrics. If the two girls had been physically examined using today's standards, the medical testimony would no longer corroborate the allegations of sexual abuse.

Like many of the defendants in ritualized-abuse cases, the San Antonio Four faced bizarre and fanciful claims that should have triggered skepticism — had not "think of the children!" drowned out all critical thought. Like many such defendants, junk science and bizarre and facially questionable allegations combined with innate identity-based hostility:

A witness for the prosecution, pediatrician Nancy Kellogg, testified that the two young girls’ injuries were used in satanic rituals prevalent among lesbians.

I don't claim to be a scientist. I'm functionally scientifically illiterate. But I know enough to understand that science is about questioning and proving, and that when it's the government that shows up with the snake oil, we too often accept it without scrutiny. That may be because the government usually packages junk science with fear.

Frothing Nutjob Gordon Klingenschmitt, His Censorship Is My Censorship Too

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Gordon Klingenschmitt is running for the Colorado General Assembly. His political base is made up of people who think that Obamacare causes cancer; that Justice Anthony Kennedy called Jesus evil; that Obama is ruled by 50 demons2; that demonic spirits inhabit high school track meet officials, transgendered professors, and Madonna; and that gays should be the subject of discrimination. He also thinks that he can exorcise the gayness out of people, though that may be a typo.3

All of this makes Klingenschmitt the darling of some, and the frequent target of coverage by Right Wing Watch, which sort of the Marlin Perkins to Klingenshmitt's irritable wildebeest, if wildebeests were rabidly homophobic and had Charlie Manson eyes. Klingenschmitt doesn't like Right Wing Watch covering him or posting excerpts of his — for want of a better word — talks on their YouTube channel. So he's been making repeated bogus copyright claims to YouTube, claiming that Right Wing Watch is violating his copyright by posting parts of his videos. He's done so even though it's classic fair use to take an excerpt of a political candidate's past comments as part of covering, criticizing, and commenting upon him. YouTube has rejected Klingenschmitt's takedown demands, but he keeps repeating them, resulting in Right Wing Watch's YouTube channel being repeatedly terminated. Klingenschmitt threatens to continue. His quest to suppress criticism in the form of repetition of his own words is aided substantially by YouTube's dumb-as-a-bag-of-hair automated system, which encourages bad-faith complaints by rewarding them with repeated takedowns.

Whether it's Twitter, or YouTube, or Facebook, media sites are faced with a vicious cycle: the more they automate their takedown-demand process and remove intelligent supervision from it, the more that censors and the pathologically thin-skinned will flood them with bogus takedown demands. If you don't like it, you could tweet @YouTube or sign Right Wing Watch's petition. Just do me a favor and be ready to do the same thing next time it happens to someone with whom you disagree.

As to Klingenschmitt: why should Colorado voters accept someone who bears false witness in takedown demands to shut up his critics? Does he stand by the talk about demons and the benefits of discrimination against gays, or not? Also: if demons control Obama, are demons responsible for the disastrous Obamacare rollout? Wouldn't demons want Obamacare to work so it could cause more cancer? Are angels fighting demons? Do angels make web sites not work in order to thwart demons causing cancer through their chosen agent of Obamacare? Are angels responsible when Popehat goes down?

Alabama Court, Roger Shuler Continue To Thwart Roger Shuler's First Amendment Rights

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Back in October I wrote about how an Alabama court had issued a preliminary injunction against "Legal Schnauzer" blogger Roger Shuler prohibiting him from blogging about certain claims and requiring him to take blog posts down. I also explained why that preliminary injunction was likely unconstitutional prior restraint — an order that prohibited speech before it happened rather than punishing defamatory speech after it happened, without any extraordinary circumstances that might support it. Last week I talked about how the ACLU had filed an amicus brief on Shuler's behalf, but bemoaned that Shuler was refusing legal counsel in a case arising out of his arrest for defying the preliminary injunction.

There are updates. They aren't good.

Though Roger Shuler may have enemies amongst Alabama politicians, and perhaps even amongst Alabama judges, he remains his own worst enemy.

The Alabama Court Has Issued A Permanent Injunction

This week a local news station reported that on November 14, 2013 the Alabama court held a hearing and indicated that it would issue a permanent injunction finding Shuler's posts about Robert J. Riley, Jr. to be false and ordering him to take them down.

The local station quoted Riley's law partner and attorney James Murrill as dismissing the prior restraint and First Amendment concerns:

There's been speculation that the Court's previous orders have infringed on Mr. Shuler's constitutional rights. Actually, libelous speech is not protected by the First Amendment. As the United States Supreme Court ruled in Linn v. United Plant Guard Workers of America, "it must be emphasized that malicious libel enjoys no constitutional protection in any context." Also, the concept of "prior restraint" applies to an action to enjoin speech before it occurs. This lawsuit dealt with speech that had already occurred, and the law allows a plaintiff to seek civil remedies for defamatory speech that has already occurred. All of this is clear if you look at the Court's records, which the Court has now agreed to unseal."

That press statement is either one of the most blindingly ignorant or cynically dishonest I have ever read from an attorney about a case. Riley may be suing Shuler based on past speech. But Riley — though Murrill — sought an injunction that prohibits future speech. That's classic prior restraint. Murrill is simply lying when he suggests that Riley has not litigated to silence Shuler's ongoing and future speech.

Some may suggest that because a court held a hearing and issued a permanent injunction rather than a preliminary injunction, this is no longer an issue of unconstitutional prior restraint. I disagree. The authorities permitting prior restraint of statements found by the trier of fact to be defamatory — whether by forbidding their utterance, or requiring them to be removed — only support such an order after a trial, not after a pre-trial hearing. Here Shuler has not had an opportunity to conduct discovery and the judge, rather than a jury, acted as the finder of fact. The vast weight of authority seems to be against prior restraint until after trial except in extraordinary cases — and nothing about Shuler's case is extraordinary, except perhaps the political connections of his targets.

In 2007 the California Supreme Court upheld a post-trial order enjoining specified defamatory statements; that opinion has a good survey of prior restraint cases across the state and federal courts. Those authorities strongly supports the notion that the First Amendment requires a full trial, not a mere pretrial hearing, before prior restraint is permissible. See, e.g., Pittsburgh Press Co. v. Pittsburgh Comm'n on Human Relations (1973) 413 U.S. 376, 390 [“prior restraint is... communication...before an adequate determination that it is unprotected by the First Amendment”); Kramer v. Thompson (3d Cir.1991) 947 F.2d 666, 675 [“The United States Supreme Court has held repeatedly that an injunction against speech generally will not be considered an unconstitutional prior restraint if it is issued after a jury has determined that the speech is not constitutionally protected.”]; see DVD Copy Control Assn., Inc. v. Bunner (2003) 31 Cal.4th 864, 891–892, 4 Cal.Rptr.3d 69, 75 P.3d 1 (conc. opn. of Moreno, J.) [“a preliminary injunction poses a danger that permanent injunctive relief does not; that potentially protected speech will be enjoined prior to an adjudication on the merits of the speaker's or publisher's First Amendment claims”].

Moreover, until we see the written permanent injunction, we won't know if it suffers from the other flaw of the preliminary injunction: vagueness. The preliminary injunction didn't just require Shuler to take certain posts down and forbid him from saying specific things about Riley; it also vaguely forbade him to publish "any defamatory statement" about Riley "including but not limited to" the defamatory ones. That leaves Shuler (or anyone advising him) to guess at what he may or may not publish. It's exactly the sort of vague and indefinite prior restraint repeatedly struck down by courts. If it appears in the permanent injunction, it's an additional ground for constitutional challenge.

Roger Shuler is Still Roger Shuler

Riley's lawyer James Murrill — whose version of events admittedly should be taken with a pillar of salt — describes Shuler's conduct at this week's hearing as follows:

A hearing was held today on a permanent injunction. Mr. Shuler attended and presented no evidence in support of his false allegations, but instead called the Court a joke and said that he would not follow the Court's order. He also told the Court that it had no jurisdiction over him.

Well, that's just disastrous for Shuler and for the First Amendment. It's exactly the sort of behavior that concerned me when Shuler refused a court-appointed lawyer.

Shuler may believe that the fix is in; he may believe that this Alabama court is biased for powerful and connected local politicos like Riley and against critics of powerful politicos like Shuler. That doesn't make refusing to participate, calling the court a joke, and denying the court's jurisdiction a sensible strategy. It's a wholly deranged strategy. Shuler increasingly reminds me of some of the defendants I saw as a federal prosecutor in the 1990s — tax protestors who claimed that the United States District Court was an admiralty court with no jurisdiction over them because it flew a flag with a gold fringe, Feemen who said that the defendant named in the indictment was not the same person as them because the name was capitalized in the caption and their name is not capitalized, and so forth. Shuler's "I successfully evaded service and therefore this court has no jurisdiction over me" is a madman's gambit. Jurisdiction isn't a game, and even if it were a game, Shuler lost it. Shuler's litigation behavior — which is merely an extension of his history of vexatious pro se behavior — is robbing him of any chance of vindication of his rights.

Perhaps this court is biased against Shuler and for Riley. Riley is from a powerful family and has powerful friends; Shuler is — in a way that appears to me to be haphazard and crazed – a critic of powerful politicians. The court has issued a preliminary injunction that strikes me as frankly lawless. But ultimately you can't vindicate your rights by refusing to acknowledge the court, like some fallen dictator before a revolutionary tribunal. You have to fight for your rights. You have to articulate how you believe your rights are being violated. You have to seek to call witnesses, to present evidence, and to cross-examine the other side's witnesses. If, like Shuler, your circumstances make those things nearly impossible, you need to articulate your need for more time or resources and explain what you would do if you had them. If you don't do those things, you not only lose in the court you think is biased, you very likely lose on appeal or on any collateral attack in another court — because you haven't acted to preserve your arguments.

Shuler was in a very bad place this week, but he could have acted to protect himself. He could have asked for time to secure an attorney. There are pro bono attorneys willing to help him. He could have asked for time to conduct discovery to support his assertions. Even if he couldn't refute Riley's assertion that his blog posts were false, he could have tried to show that he had some sources and evidence supporting them. That might have demonstrated that his posts weren't defamatory because he didn't write with with actual malice, the standard applicable to statements about a public figure. But if Murrill's account is accurate, and he simply refused to participate, he may have lost not only this motion, but his ability to challenge it on appeal or in any other court. Any reviewing court may conclude that Shuler waived the arguments he declined to make.

It's not clear why Shuler is acting that way. Is his story a lie, and he knows he can't support it? Is he swollen with hubris? Is he crazy? Whatever the answer, legally speaking he's cut his own throat. Worse, he's helped set a precedent that will embolden future plaintiffs seeking to silence defendants through unconstitutional prior restraint.

I would have no problem if Riley sued Shuler, took him to trial, convinced a jury that his posts were false and malicious, secured a judgment against him, and enforced it against him. Shuler's conduct and history, and the shady nature of his claims, makes me extremely skeptical of his story. But this is a very bad result any way you look at it.

An Existential Threat To America

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Sometimes a judicial opinion buries the lede. Other times a court will signal how the case will go from the first sentence.

Let nobody say that Judge Bruce Selya, Circuit Judge of the United States Court of Appeal for the First Circuit, buried the lede in affirming the federal conviction of Tarek Mehanna:

Terrorism is the modern-day equivalent of the bubonic plague: it is an existential threat.

The conclusion flows ineluctably from that premise: Tarek Mehanna's conviction for providing material support to Al-Qaeda must be upheld. And so it was yesterday.

But is the premise correct? And for what purpose do courts and government actors bring it to bear?

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Police Who Rape

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The always awesome Rick Horowitz has a great post about police who rape. Here's one fun fact among many: "the United States outdoes India when it comes to custodial rapes of women by law enforcement personnel".

But, hey, it's fundamentally a good system. I'm sure it can be reformed from within.

UPDATE: if you're getting sick of the all-law-enforcement-slagging-all-the-time channel, I've got two posts that just moved from the back burner to the front burner of actual composition: Urbit For The Non-Vulcan, and The Nine Nations and Four Seeds of North America.

Would You Ask Your Violent, Abusive Neighbor To Help Discipline Your Kids?

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So you've got kids. Maybe they are teens, maybe they are young adults living at home. They're a pain in the ass. They're disrespectful and won't follow instructions. They break curfew. They break house rules. They may be mixed up in drugs. They've been arrested multiple times, and you've had to bail them out. You worry that they aren't getting any better. You worry they are getting worse. Sometimes you're a little afraid of them.

You've also got a neighbor. Some people think he's swell — brave, with the right values, someone who serves the community. But he's violent. He hits people. He hits people a lot. He gets away with it, because of his connections. He's shot someone and gotten away with it, because everyone thinks that if he shot them it was probably for his protection — and because his friends help cover up for him. He talks about how he needs to hit people and shoot people because it's a dangerous world and that's what you have to do to protect yourself in it. His perception of risk might be different than a normal person's perception of risk. He also talks about how they had it coming. He gets angry if you ask him about it, or suggest that maybe he likes hitting people a little too much.

Would you ask your neighbor to help discipline your kids?

Would you make your kids go live with your neighbor, in the hopes it would straighten them out?

You probably wouldn't.

But you might call the cops on your kids. Or you might decide that they need to go to jail to be taught a lesson.

Data point: father calls the police on 19-year-old son after the son takes off in the father's truck after an argument; police officers shoot the unarmed son to death in the truck.

Data point: 22-year-old in jail for missing a court date on marijuana possession dies from allergic reaction as guards watch and accuse him of faking; the government stonewalls, lies about the incident, and deceptively edits the tape of it.

God help me if one of my kids is troubled, or uncontrollable, or addicted. I don't know how I will handle it. I don't know how other parents can handle it. I don't blame or judge parents who have called the police, or decided that what their kid needs is a stint in jail to learn a lesson. That's what our culture teaches us we should do.

I pray they don't learn that they have asked a violent, abusive, cruelly indifferent neighbor for help.

P.S. Also, think twice about calling your violent, abusive neighbor for help with, say, a prowler.

A Modest Argument About Police Culture Culminating in a Reference to the Hare Psychopathy Checklist

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In the comments to Ken's excellent post on the recent repeated digital anal rape of a citizen by government employees, commenter
@Ryan took me to task:

@Clark

On Nov 7 at 7:51 AM you wrote:

Prenda et all have no more harmed the reputation of "all lawyers" than OJ Simpson harmed the reputation of "all African Americans" or Bernie Madoff harmed the reputation of "all Jews".

People are individuals. Pick any set and you'll find sinners and saints.

Then at 4:54 PM on Nov 7, you said:

Dogs are people, but LEOs – by pinning on a badge and pledging that they'll enforce the law – even when the law says that innocent people should be jailed or dogs can be shot – have opted out of the human race.

Fuck them all, and may they die slow horrible syphilitic deaths.

Which makes me wonder how the eminently reasonable Clark of this morning got replaced and when. The juxtaposition is astounding.

It's remarkable that you can, in the span of less than 12 hours, move from a statement that assigns blame to people as individuals and not the profession they belong to, to the polar opposite, just because the latter happens to spout hate and vitriol toward a group you vehemently dislike, while the former forgives people who are in a profession that you at least partially respect because of a few individuals you know who are a part of it.

This is a good point, and it deserves an answer.

My response has two prongs:

1) the inherent evilness of the full job description of law enforcement

2) the overwhelming default culture of law enforcement

Point One: inherent evilness of the job

I already addressed the first prong in an earlier comment, where I said:

It is wrong to discriminate against Blacks or Jews or Hispanics or Gays because people are born into those groups and do not pledge any sort of allegiance to them, nor does their inclusion in a group show that they have opted into the dominant ethical pattern.

Is it right to discriminate against Jihadis or SS members or KKK members or Bloods or Crips because (a) people consciously opt into said group, and (b) do so knowing their norms and and behaviors.

The War on Americans Who Use Drugs has been going on for decades. It is a very rare LEO who pinned on the badge before the War.

In 1944 I'd hold no ill will (or not much) to a German who was drafted…but if a German signed up to go throw Jews out of their homes, then screw him.

In 2013 I hold no ill will (or not much) to an American who is drafted into the American police…but if a man or woman signs up to go shoot dogs and digitally rape anuses, then screw him. He's bought what Screwtape is selling.

tl;dr: The job description is evil. Only evil people sign up for an evil job.

Point Two: The LEO Culture Turns Good Men Bad

The second prong of my argument is the culture of law enforcement.

Let's assume that that 5% of humans are power-mad thugs, psychopaths, whatever you want to call them.

A priori we can assume that these people are distributed evenly throughout professions…but perhaps that's not true. Maybe the field of lawyering attracts these people. I don't think so, but say it's true, and 10% of lawyers are Prenda-rific and routinely lie, cheat, steal, etc. 10% is still a minority of all lawyers, and there are no network effects that turn 10% into 90%. The opposite is true: lawyers are split into factions and they work against each other all the time, not just in the courtroom but in the marketplace. The adversarial nature of the profession means that any bad acting lawyer is always risking exposure from others.

Law enforcement culture, on the other hand, does have network effects. Cops work together as a team, whether they're in the same squad car, the same department, or just in the same country. The culture is deeply insular with special ID cards and bumper stickers promising special treatment, and a culture that routinely and harshly punishes anyone who breaks from the party line. This is a system almost custom designed to let moral and procedural rot run rampant. (Recall that as much as cops like to wash their hands of a fellow cop who was caught doing a crime by calling him "one bad apple", the full phrase is "one bad apple spoils the bunch".)

Conclusion

Whites have sinners and saints.

Blacks have sinners and saints.

Oregonians, Texans, and New Yorkers have sinners and saints.

Accountants, hairdressers, and coal miners have sinners and saints.

Law Enforcement, though, is unlike all of these – the job description is organized bullying, and that (a) attracts psychopaths and (b) converts non-psychopaths into – at worst – psychopaths, and – at best – into those who merely tolerate, absolve, and cover up for the psychopaths. For fun, run down the Hare Psychopathy Checklist and compare the bullet points to the typical cop's personality. Glib, grandiose, lying, manipulative, remorseless, lacking empathy, needing stimulation, parasitic lifestyle … the list goes on and on.

The police are a monopolistic organized gang that – as an emergent social entity – delights in violence, repression, and control, and is made up of members who are resemble it in miniature. It is no more morally complicated to fear, disdain, and hate people who choose to join the police than it is to fear, disdain, and hate people who choose to join the KKK.

That said, one should hate the sin and not the sinner.

I'm trying, Ringo. I'm trying real hard.

UPDATE: The always awesome Maggie McNeill points me to an old blog post of hers that bears on this topic:

If a cop is tasked with enforcing a law he knows to be immoral, it is his duty as a moral man to refuse that order even if it means his job. If he agrees with an immoral law then he is also immoral, and if he enforces a law he knows to be wrong even more so. The law of the land in Nazi-era Germany was for Jews and other “undesirables” to be sent to concentration camps, and the maltreatment of the prisoners was encouraged and even ordered by those in charge; any German soldier or policeman enforcing those laws was the exact moral equivalent of any soldier or policeman under any other democratically-elected government enforcing the laws enacted by that regime. Either “I was only following orders” is a valid defense, or it isn’t; either we agree that hired enforcers are absolved from responsibility because “they’re just doing their jobs”, or we don’t. You can’t have it both ways, and sometimes Nazi analogies are entirely appropriate.

What Is The Quantum of Proof Necessary for Police to Rape and Torture you in New Mexico?

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By now you've probably heard the story of David Eckert. He's the New Mexico man who was stopped by police, detained based on a suspicion he was hiding drugs in his rectum, and subjected to increasingly intrusive anal probing and eventually sedation and a colonoscopy. You might have read about him at Simple Justice or Defending People or BoingBoing or Techdirt or Reason or any of the other places that reported on the ghastly episode.

I waited to write about it until I could get a copy of the search warrant affidavit — helpfully provided by my friend Kevin Underhill of the absolutely essential legal blog Lowering the Bar — so that I could address this question: what quantum of proof is required in New Mexico for the police and compliant doctors to rape and torture a man?

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Quoteworthy Lawyer, Or Gang Leader?

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Monday, blogger Karoli of Crooks and Liars referred to me like this:

That's the province of Popehat and his gang of libertarian lawyers.

Friday, blogger Karoli of Crooks and Liars referred to me like this:

AL.com has a decent analysis, including quotes from LA lawyer Ken White of the Popehat blog:

Did I quit the gang? Did I stop being a bad lawyer and become a good lawyer?

No.

Monday, Karoli was speaking in support of the (pseudo-) progressive Brett Kimberlin, and against the conservative people Kimberlin is suing for blogging about him. I've defended the people Kimberlin is suing in the face of his censorious and abusive lawsuits that attempt to suppress First Amendment rights. So I was a gang leader.

Friday, Karoli was speaking in favor of progressive Roger Shuler, and against the conservatives suing him. I criticized the injunction against Roger Shuler as a prior restraint that violated the First Amendment. So I was a "LA Lawyer" worthy of quoting.

Monday, Karoli felt comfortable letting the court sort it out when Brett Kimberlin sues people for blogging, and not drawing conclusions about whether Kimberlin's complaint is political or his targets' speech is protected:

I don't write any of this with an intention to hold blog court, nor is this post intended to take up the cause of justice for Brett Kimberlin. That's the province of Popehat and his gang of libertarian lawyers. The court will decide this case, and as part of that decision they'll have to decide what constitutes free speech and what does not.

Friday, Karoli felt comfortable saying that the court's contempt order in Roger Shuler's case is wrong, that the case against him is political, and that his speech is protected:

Blogging is not a crime, and having bloggers tossed in jail because you're the son of a powerful politician with your own ambitions is a dangerous precedent that has not escaped the scrutiny of many, without regard to whether we are right or left.

I'm tempted to be uncouth. I'm tempted to draw the conclusion that Karoli views free speech as something that people she likes should have.

But maybe I'm wrong.

Karoli has been blogging for a while. She's a capable writer who has addressed many social, legal, and political disputes.

Surely, in all that blogging, she's spoken out once in defense of the free speech rights of someone she opposes politically.

Right?