Popehat

8

With Apologies To Black Sabbath

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ALRIGHT NOW!
Won't you listen to me?

When I first met you, didn't realize
Can't buy a condom, for Cory Gardner's lies.
He weirded the weather, in my clime.
Cut my brother's Pell Grant, him and his kind.

OH YEAH NOW!

Treasury was empty, revenues way down,
Until Mark Udall, turned things around.
Abortion's free now, your uterus is clear.
I love you Sweet Pea, that fetus won't adhere.

Come on now, try it out!

NDT5
Republicans don't know, what Science is about.
They put Neil deGrasse Tyson down, and shut him out.
On Election Day now, you'll vote Straight D!
We'll have an abortion, Oh Sweet Pea!

OH YEAH NOW!

439

Ten Short Rants About #GamerGate

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If you know what #GamerGate is, I don't have to tell you. If you don't know what #GamerGate is, any description I give you will be attacked by hordes of partisans saying that I have described it unfairly and that the sources I have linked are biased. So I'm going to treat you, dear readers, as if you know what it is. Clark wrote a post about it last week. My take is different. I'm not going to offer you a timeline or an attempt at a definitive "what happened" or "who is right." Instead I'm going to rant about ten ways that this controversy illuminates how we're screwed up.

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669

Gamer Gate: Three Stages to Obit

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A lot of things been written about Gamer Gate. Some of them wrong, some of them stupid, some of them both.

A lot of the confusion (both accidental and malicious) is because Gamer Gate is three separate things clustered together under one name.

The Three Stages of Gamer Gate

Gamer Gate began in a relationship spat. Person X was dating person Y. At some point person X realized that person Y had engaged in a pattern of cheating and lying, and person X blogged about the dirt.

This relationship drama was the first stage of the GamerGate, and as a he-said-she-said tale, it's of interest only to the two people involved, and their friends.

The blog post, though, went beyond "she told me she loved me and then she showed she didn't", and alleged that the unfaithful partner had slept with powerful media figures in the small world of computer games journalism…figures who either reviewed games coded by the unfaithful partner, or managed writers who did review the games. The alleged behavior is (at best) a breach of common sense, and (at worst) a major breach of journalistic ethics.

This gamer journalism drama was the second stage of GamerGate, and as a sex-for-positive press coverage scandal (unproven, in my mind), or just as a "jeez, gamer journalism is as corruptly orchestrated as mainstream media is under Ezra Klein's Journolist" scandal, it's of interest to the tens of thousands of people who read and write game review journalism… which doesn't include me.

This is where things got wacky. And by "wacky", I mean "exploded like a barbecue grill when liquid oxygen is poured on it."
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26

A Jingle from the Lockheed Skunk Works

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There's no confusion!
We aim to implement fusion!
It's a tougher catch than lightning in a bottle.

But we can do it!
We made the Blackbird and flew it,
And we circumnavigated at full throttle.

Yes, some are skeptical
That our receptacle,
For holy fire might be a mayonnaise jar.

So we'll assure 'em,
Our R&D is kosher for Purim,
And this'll be our best result by far!

Hedge funds: don't short us!
Federal watchdogs: don't report us!
It'll take a while, so journalists: rake some muck!

Still, we're not kidding.
We're doing DARPA's bidding,
And soon we'll ship reactors on a truck!

(WaPo on Lockheed)

10

Marian is on the move

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PDX-to-PDX-banner-2

If you have followed our previous coverage of Marian Call, you know that she's our favorite wandering geek-minstrel and catalyst of casual fun. Well, Marian's on the move in her Portland to Portland (and back!) tour, which has already taken her from the Pacific Northwest to New England. At this very moment, she's on her way down the coast toward DC. She'll meander across Penn and Ohio on the way to Minestrone, Wisconsin, Colorado, Utah, and finally end up (of course) in Portland again (on the way back to Alaska).

Braving the same trip is flightless wingman Scott Barkan.

Marian and Scott will be playing in a variety of small venues and at house concerts, and she'll be vending worthy goods. If you enjoy folksy singer/songerwriters with a novel, quirky edge, you should go see her. That's what I plan to do. It's Elementary!

129

Strange Seeds on Distant Shores

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In Soviet Russia, Pravda punches you

I once asked a coworker who had grown up in the Soviet Union "What was the most surprising thing about coming to the West?" I was assuming it was going to be something physical and mundane: the shape of traffic lights, or the fact that you can't find Vodka for sale in bus stops – something like that.

His answer, though, made me realize that I'd accidentally asked a really interesting question. "Growing up under communism, things didn't make perfect sense. Facts didn't quite fit together. But because everything – schools, newspapers, radio – was all from the same people, you never knew what was wrong…but you could tell that something wasn't right. It was like boxing while you're blind folded. You keep getting hit in the face, but you don't know why. Only after I got out did I see how the real world really was, and how everything we'd been told was lies and distortions." (Quote is from memory ten years later)

There's an aphorism that "fish don't know that they're in water." While googling up the phrase to make sure I had it exactly, I learned that Derek Sivers has made exactly the point I wanted to make next, and made it well, so I'll let him speak:

Fish don't know they're in water.

If you tried to explain it, they'd say, "Water? What's water?"

They're so surrounded by it, that it's impossible to see.

They can't see it until they get outside of it.

This is how I feel about culture.

We're so surrounded by people who think like us, that it's impossible to see that what we think are universal truths are just our local culture.

We can't see it until we get outside of it.

I was born in California and grew up with what I felt was a normal
upbringing with normal values.

My Russian friend was a fish, and it wasn't until he got out of the water that he could look down and exclaim "Holy shit! That is why I felt so wet all the time!"

Well, lucky us – we live in the West where the schools, the media, and the government aren't all held captive by one totalitarian ideology, so we get a diversity of viewpoints and can see how things really work.

I'm joking, of course. (more…)

27

Love Is Kind Of Crazy With A Spooky Little Movie Like You

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Our friends at Quarter to Three, one of the best gaming sites on the web (and one not involved in #Gamergate!) are compiling a list, with detailed reviews, of great horror movies from the past two decades. 31 movies in 31 days. You know all about The Texas Chainsaw Massacre and Night of the Living Dead, but have you seen Audition? Did you know that "The Call of Cthulhu" has been filmed, and that someone, somehow, actually made a decent film based on H. P. Lovecraft?

Great-cthulhu
One of my rituals, every October, is to watch a mix of classic and newer horror movies. The people behind this series know what's good, and I'm looking forward to watching their recommendations. But if you're squeamish, don't click!

66

Dinesh D'Souza's Sentence Isn't Remarkable

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Recently I wrote about political pundit Dinesh D'Souza's selective prosecution claim and about the support for him at sentencing. Today a federal judge sentenced him to five years probation, eight months of that in a community confinement center, community service, and "therapeutic counseling."

A few comments:

1. The sentence isn't remarkable at all. Both sides agreed on the sentencing range under the United States Sentencing Guidelines. Though the recommended sentence under those guidelines was 10-16 months, the judge had discretion to go lower or higher. Probation with a term of home detention or "community confinement" is a very common approach to a nonviolent first offender with a low guideline range. For a 53-year-old with no record, this is roughly in the middle of the array results I would expect. In a case like this I would have shot for probation conditioned on home confinement but told the client that a short term in custody or a term in "community confinement" was a strong possibility. You may see it as unreasonably lenient or hash, but federal criminal practitioners won't.

2. A "community confinement center" sounds Orwellian, but it's just a halfway house. It's like a halfway house used for recovering addicts. Imagine a slightly dingy and run-down house in a not-quite-good neighborhood, with a group of people and someone on staff usually there. Being in a halfway house means that for eight months D'Souza will have to sleep there, but will be allowed to leave to go to work, church, and the doctor, or to other activities permitted by the house supervisors.

3. "Therapeutic counseling" sounds Orwellian but isn't. The BOP doesn't have people to counsel you on politics. Counseling as a condition of probation is typical. Available counseling includes drug, alcohol, marital, parenting, anger management, psychological, and so forth. I don't know what particular element of D'Souza's background resulted in the counseling condition, but there's absolutely no basis to jump to the conclusion that it's meant to reeducate him.

Remember: usually you can't rely on media reports of criminal justice events.

47

American Spectator Surrenders To Vexatious Litigant and Domestic Terrorist Brett Kimberlin

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Last year I wrote about how vexatious litigant and unrepentant domestic terrorist Brett Kimberlin filed a blatantly frivolous RICO suit in federal court in Maryland seeking to silence and retaliate against those who had criticized him.

Now the American Spectator, a conservative magazine, has ignominiously surrendered to him.

Many were suspicious the Spectator had reached some agreement with Kimberlin when he abruptly dismissed the American Spectator from the RICO case. He did so without serving the Spectator and with prejudice — meaning that he cannot re-file the claim. Those suspicions were confirmed when articles about Kimberlin disappeared from the site. As Lee Stranahan first reported, past articles about Kimberlin on the site have mysteriously disappeared. Most don't seem to be cached anywhere, with the exception of this one by Robert Stacy McCain, the Spectator's co-defendant in the RICO case.1 Most are just gone.

Settling a lawsuit is generally a business decision. When clients tell me they don't want to settle because of the principle involved, I explain that the justice system is terrible at sorting out principles. It is very good at putting people in jail, and mediocre and inefficient at moving money from one person to others (mostly to lawyers), but it's a terrible vehicle for vindicating right or wrong. Generally settling a lawsuit — even a vexatious one — is a rational economic decision by a defendant, taking into account a broken system and the ruinous cost and distracting nature of litigation.

But the American Spectator is not most defendants, and Kimberlin's RICO case is not a typical vexatious lawsuit.

The American Spectator purports to be a magazine — it purports to be about journalism and vigorous expression of opinion. It's true that it's highly partisan, but not unusually so. It's sort of a Salon for people who think Hilary Clinton killed Vince Foster. De gustibus non est disputandum. But it relies upon free speech. The First Amendment is essential to its operation. Indeed, even this week it was urging defiance to what it saw as Democratic Party threats to free speech:

Will we keep the First Amendment safe from Harry Reid? asks @jpcassidy000. http://ow.ly/BEsKy

Moreover, the Spectator has traditionally urged defiance in the face of politically motivated defamation claims. Such exhortations to resist "liberal" "tyranny" are common to the Spectator. And any publication — from the New York Times to somebody's LiveJournal page — relies for any credibility upon the proposition that it will say things even if some people do not like them.

But the American Spectator caved, and removed content.

Was it about the expense of litigation? True, it's expensive. But as far as I can tell the American Spectator never sought pro bono help from any free speech networks. Even though I experienced considerable difficultly when I sought pro bono help for the individual codefendants, it is very likely that an entity like the Spectator would have been able to find free or reduced-cost help, perhaps from ideological allies. And bear in mind that some of the individual co-defendants, even though they are not lawyers, have been vigorously and successfully litigating against Kimberlin pro se.2

Did the American Spectator have doubts about the merits of the case? Did it think Kimberlin might have a point? If it thought that, it is not competent to evaluate such things. Kimberlin's Second Amended Complaint is vague and ambiguous about his claim against the Spectator:

Defendant The American Spectator published numerous defamatory articles by Defendant McCain and then removed them. Defendant McCain complained to the editor and the articles were then republished in February 2014 with different urIs. The sheer number of articles published by the American Spectator about Plaintiff demonstrates malice an intent to harm him and his business prospects. For example, in one, titled "Terror By Any Other Name," Defendant McCain imputes that Plaintiff was involved with swattings . . .

The complaint goes on to quote one of the stories at length without specifying what is false or defamatory about it.

As I have written before, the claims are patently frivolous. Some of the scrubbed articles rely on published court opinions and newspaper articles to tell Kimberlin's history. Others discuss his lawsuits seeking to quell speech. One of them quotes my analysis of why epithets used against Kimberlin are protected opinion. Moreover, even if the American Spectator honestly (but stupidly) thought that some portions of one or more of the articles were defamatory, that does not explain or excuse them scrubbing all mentions of Kimberlin from their web site. Vexatious and censorious litigants frequently demand that all mention of them be removed; actual journalists or commentators worth reading don't do it.

Most litigants settle. But some litigants are, or should be, different. Their cowardice in the face of frivolous litigation impacts everyone. Universities — which rely on free expression — are different, which is why it was unacceptable for the University of St. Thomas School of Law to pay money to vexatious litigant Joseph Rakofsky rather than defend the right to write about public court proceedings. Any institution that bills itself as a "magazine," that has pretenses to journalism or commentary, is different as well. American Spectator has a journalistic and social obligation to defend itself and therefore defend free speech against censorious litigation. By surrendering and scrubbing content, the Spectator has abetted and encouraged abuse of the legal system and emboldened people like Kimberlin to sue to remove speech they don't like. They've betrayed their purpose. That's unacceptable.

It would be inaccurate to say that the American Spectator will lose credibility generally as a result of this decision. Its breathless partisanship and assorted oddities limit its credibility to its target audience of the like-minded. Doing this will wound its general credibility in the sense that the Weekly World News would hurt its credibility by doing a very one-sided hit piece on Bat-Boy. But this surrender will, and should, eviscerate its credibility with its target audience and its readers. First, how can it be taken seriously as an institution willing to speak truth to power if it caves to a frivolous lawsuit by a domestic terrorist?3 Second, how can they be taken seriously as a conservative institution that will question liberals, when they yield to a blatant attempt to abuse the legal system to retaliate against conservative viewpoints?

No. They're done.

A number of serious thinkers and good writers have written for the Spectator over the years. It's possible for a serious person to write for an unserious publication. (I have to keep telling myself that, since I wrote a couple of things for Salon.) But at some point it's fair to ask a writer why they are associating with a particular publication. I propose that we begin to ask that of anyone writing for the American Spectator — by email, by Twitter, by whatever medium available. Take, say, Ben Stein. You're an in-print and on-screen tough guy, Ben. Why would you continue to write for an institution that acted this way? Just asking.

I wrote to the American Spectator and its Managing Editor seeking comment, but did not receive a reply. I would like to ask them some questions. Did they even attempt to find someone to offer a vigorous First Amendment defense? Did they pay Kimberlin money — money he will use to sue other critics? If they think they faced liability risk, what particular statements of fact do they think were false? And is this going to be a thing now?

36

A Grumble: United States Courts Website Misinforms About Free Speech

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

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

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

Funny story.

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31

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

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

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

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