Popehat

23

Popehat Signal Update: Dream Team Victory In Texas

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I bring good news: top-notch work by generous and dedicated lawyers has produced a free speech victory in Texas.

Last year I lit the Popehat Signal seeking help for J. Todd DeShong, a blogger and AIDS activist. DeShong, a longtime critic of the nutty and conspiratorial junk science occasionally directed at AIDS issues, ran afoul of Clark Baker, an ex-cop and full-blown AIDS denialist who offers "expert" "witness" services. You may recall my description of Baker's phone call to DeShong's mother:

I interviewed Mr. DeShong's mother, a sweet lady with a spine of Texas steel. She told me about how Mr. Baker called her out of the blue and ranted at her. Mr. Baker angrily denounced her son, and told her that, as a police officer, he knew about dangerous people, and that Ms. DeShong should fear that her son would kill her in her sleep. He also threatened that he was arranging for doctors Mr. DeShong had criticized to sue him for defamation. Ms. Deshong pointed out that such a suit would bring no joy; Todd DeShong is not a rich man. "But you have money, right? You have a house, right?" responded Mr. Baker, implying that he might put her assets at risk. "He thought he could intimidate me. He didn't know who he was dealing with," said Ms. DeShong, who sounds like a good person to have at your back.

Baker sued DeShong in federal court in Texas over DeShong's criticism of Baker's AIDS-denialist rhetoric and his "expert" "witness" service the HIV Innocence Group. Baker claimed that DeShong's criticism was not only defamation, but violation of the HIV Innocence Group's trademark rights in its name. Baker's motive may have been mixed: he may have wanted to silence DeShong, but he may also have wanted to use the federal suit to pursue his conspiracy theories about AIDS researchers. I cannot say what his lawyer was thinking, if he was.

Such federal litigation is ruinously expensive to defend; DeShong couldn't afford a defense and Baker might have succeeded in silencing critics through abuse of the legal system. Fortunately, lawyers who care about free speech rode into the breach: D. Gill Sperlein, Paul Alan Levy of Public Citizen, Gary P. Krupkin, and Neal A. Hoffman filed motions to dismiss (attacking the thoroughly specious trademark claims) and a strong motion under Texas' relatively new anti-SLAPP statute.

Last week the dream team won. United States District Judge Sam R. Cummings granted DeShong's motion to dismiss the trademark claims, and then refused to hear the state law claims and dismissed them. The court's ruling held the line on a key free speech concept: using a company's name to criticize it does not violate the company's trademark in the name. Baker had claimed that sites like "HIV Innocence Group Truth" violated trademark rights and were part of an effort to destroy him by discrediting him. But Judge Cummings pointed out "[n]o reasonable person would take one look at DeShong's website and believe that Baker authorized its content." Moreover, the court explained, trademark law doesn't protect a company from criticism. The Lanham Act protects a competitor from profiting from the misuse of another company's trademark; it does not protect a company from vigorous and even ruinous criticism employing its name. Judge Cummings also rejected Baker's argument that DeShong violated trademark rights by using a URL likely to dominate search results for "HIV Innocence Group." That theory, too, would have allowed the Bakers of the world to abuse the Lanham Act to prevent criticism.

I suspect Paul Alan Levy, who has done a lot of important work protecting "gripe sites" and critics from bogus trademark claims, had a strong hand in winning this issue.

Having dismissed the federal trademark claim, Judge Cummings declined to exercise supplemental jurisdiction over the state claims like defamation, finding that state issues (like application of Texas' anti-SLAPP statute) would predominate over federal issues. Therefore he didn't reach the anti-SLAPP motion. That's an increasingly common approach by federal judges in such cases; it's what the judge did in the censorious Naffe case in which I was co-counsel.

Baker has appealed, and could conceivably re-file his censorious screed in Texas state court. If he does, the dream team's work on the anti-SLAPP motion is already done, and I suspect Baker will find no joy before a Texas state judge. I'd lay very good odds that Baker will lose his appeal. Meanwhile, I hope that DeShong's legal team seeks and recovers legal fees from Baker based on winning the Lanham Act claim. The suit was contemptible and represents exactly the sort of case in which federal courts should use their statutory power to award attorney fees to deter such abuse of the system.

Please join me in expressing admiration and thanks to Gil, Paul, Neal, and Gary. Their generosity with their time and talents didn't just help DeShong's free speech: it helped yours. Contributions like theirs are essential to defending free speech principles in a broken system that allows unscrupulous clients and lawyers to silence dissent by inflicting ruinous defense costs. They are heroes.

95

Long Time, No See

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I've been away from the blog for a while.

There will come a time when I'll write about the circumstances of my absence, which were unpleasant. But not today. For now, I'd like to express my gratitude for the support of my family, my co-bloggers here, and the friends who have written and offered good cheer. I'm very fortunate.

I'm back. Send in those story tips, requests for free speech help, abusive and confusingly scatological emails, and thus-and-such.

101

Nazism

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

64

Significant Developments In D.C. Anti-SLAPP Law.

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UPDATE: Mr. Steyn advises me through Twitter that he has declined appeal of the Anti-Slapp motion to dismiss, because he wishes to conduct discovery against Dr. Mann. That makes the video below something of a wretched abortion, but as the other defendants in the case (Rand Simberg, National Review, and the Competitive Enterprise Institute) are moving forward with the appeal, I leave the video unaltered and unedited. My apologies to Mr. Steyn.

_____________________________________

Doe v. Burke is an important decision, handed down last week, on the District of Columbia's Anti-SLAPP statute. The D.C. Circuit Court of Appeals held that an anonymous "John Doe" defendant, sued for libel over internet comments concerning an attorney in a high-profile lawsuit, could immediately appeal the District Court's denial of a motion to quash a subpoena aimed at discovering his identity. The Court went further, and dismissed the suit against Doe entirely.  You may read the Burke decision here:

Doe v. Burke D.C. Anti-Slapp Opinion

This is a significant case. Defamation plaintiffs thinking of using D.C. as a venue for strategic lawsuits against public participation should think twice.  We've previously covered D.C.'s Anti-SLAPP law, extensively, in the lawsuit filed by climate scientist Michael Mann against journalists Mark Steyn and Rand Simberg. You may find our coverage here, and here.  As Steyn, Simberg, and their co-defendants are appealing the denial of their Anti-SLAPP motion to dismiss against Mann, we've invited a guest who is expert in the law of defamation to comment on the case:

Texas v. Johnson … v. Berg

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1989:

wikipedia.org

Texas v. Johnson, 491 U.S. 397 (1989), was a decision by the Supreme Court of the United States that invalidated prohibitions on desecrating the American flag enforced in 48 of the 50 states. Justice William Brennan wrote for a five-justice majority in holding that the defendant Gregory Lee Johnson's act of flag burning was protected speech under the First Amendment to the United States Constitution.

2014:

wpxi.com

BLAIR COUNTY, Pa. — A Blair County man said he was standing up for this American Indian heritage and expressing his beliefs when he hung an American flag upside down and spray painted it earlier this week…

“I was offended by it…” said Allegheny Township police Assistant Chief L.J. Berg. Berg said he took the flag down and charged Joshua Brubaker with desecration and insults to the American flag. “I removed it from the building, folded it properly and seized it as evidence,” said Berg…

In Chief Berg's defense, intelligent people are barred by law from becoming police in many jurisdictions, and so we should perhaps not hold the chief to the same standards that we would use for a decent member of productive society.

The truth about rule

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viaangusI am on the run. I have had a lot of ventures. I will tell you a truth of my ventures.

One day I saw a farm that had no fence. I saw sheep and long neck sheep and goats and geese. In a corner of the farm was a tin tub up side down on a flat form, and a front eyes sat on the tub and watched.

The front eyes was like the man but not like the man. I went to him and asked why all the sheep and long neck sheep and goats and geese were there in the field.

They chose to make me their ruler, he said. I take care of them and do what is right. You are a big, strong bull. I will make you my side bull and you can rule them with me!

I asked, What is rule?

The front eyes said, Watch. So I stood to a side of the flat form.

After some time a goose came up and said, I do not get enough food. I think you should take some of the food from the sheep and the goats and give it to us geese and the long neck sheep. They are strong and we are not strong.

The front eyes said to the goose, You know, you are right! Then the goose left.

Later a goat came up and said, I do not get enough food. You should take some from the long necks and give it to us goats and sheep. They are swift and we are slow.

The front eyes said to the goat, You know, you are right! Then the goat left.

I said to the front eyes, That is rule? You said this and also not this!

The front eyes said to me, You know, you are right!

Then I left the farm that had no fence. I do not want to rule.

A Riddle Wrapped In a Mystery Inside an Enigma

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Bruce Schneier:

https://www.schneier.com/blog/archives/2013/09/the_limitations.html

[ sometimes when ] we were sure of our [ covertly gained information ], we couldn't act because that would reveal "sources and methods." This is probably the most frustrating explanation. Imagine we are able to eavesdrop on al-Assad's most private conversations with his generals and aides, and are absolutely sure of his plans. If we act on them, we reveal that we are eavesdropping. As a result, he's likely to change how he communicates, costing us our ability to eavesdrop. It might sound perverse, but often the fact that we are able to successfully spy on someone is a bigger secret than the information we learn from that spying.

This dynamic was vitally important during World War II. During the war, the British were able to break the German Enigma encryption machine and eavesdrop on German military communications. But while the Allies knew a lot, they would only act on information they learned when there was another plausible way they could have learned it. They even occasionally manufactured plausible explanations. It was just too risky to tip the Germans off that their encryption machines' code had been broken.

The World War II bit isn't news to anyone who reads history (or, for that matter, Neal Stephenson novels).

I had an insight just now.

We know that the NSA collects all sorts of information on American citizens. We know that the FBI and the CIA have full access to this information. We know that the
DEA also has full access to that data. And we know that when the
DEA busts someone using information gleaned by the electronic panopticon of our internal spy organization, they take pains to hide the source of the information via the subterfuge of parallel construction.

The insight is this: our government is now dealing with the citizenry the same way that the British dealt with the Nazis: treating them as an external existential threat, spying on them, and taking pains to obfuscate the source of the information that they use to target their attacks.

Yeah, Godwin's law, whatever, whatever. My point is NOT that the NSA is the same as the Nazi party (in fact, my argument has the NSA on the opposite side). My point is that the government now treats ordinary civilians as worthy of the same sort of tactics that they once used against the Nazis.

This isn't really shocking, given that I think that the government has long been at war with the populace…but it's still a somewhat stark distillation of the trend.

Kaiju Dreaming

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

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

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

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

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

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

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

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

That Claim Won't Fly

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For my money, this is the best lawyer-to-lawyer letter of all time, involving, as it does, a millionaire throwing a porn star off a balcony into a swimming pool by – and I quote – "her vagina".

The issue apparently begins when the porn star grabbed the millionaire's shirt and alters her trajectory (something I'm pretty sure all the tutorials for Kerbal Space Program tell you not to do), thus breaking her foot during reentry.

The letter is from the lawyer of the tosser to the letter of the tossee.

http://totalfratmove.com

I represent Dan Bilzerian and received your letter on behalf of Janice Griffith.

Like your client, the facts of the claim won't, quite, fly.

Maybe your client's theory is that Mr. Bilzerian negligently violated the established standard of reasonable care for one who throws a porn actor off a roof and into a pool during a photo shoot for an adult magazine.

I'll let that one sink in for a moment.

Far be it for me to cast aspersions on the editorial standards of Hustler magazine and "totalfratmove.com", but I'd say that there's a reasonable chance that the entire event (including the allegation of a broken foot, the initial demand letter, and the response letter) was staged.

Even if it's performance art instead of cinema verite, it made me laugh. Go read the whole thing.

Department of Health And Human Services Threatens Blogger Over Satirical Posts

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The blog Addiction Myth is devoted to a very out-of-the-mainstream proposition about medicine: that the entire concept of drug and alcohol addiction is a scam perpetrated by law enforcement, rehab groups, and the entertainment industry. By contrast, the United States Department of Health and Human Services is devoted to mainstream medical and scientific propositions1 It is perhaps inevitable that these two worldviews would conflict one day.

But it was not inevitable that HHS's Office of General Counsel would bumptiously threaten Addiction Myth over obviously satirical posts. That, given minimal good sense, could have been avoided.

(more…)

Terminology and connotations

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The documents were taken from at least 24 supersecret compartments that stored them on computers, each of which required a password that a perpetrator had to steal or borrow, or forge an encryption key to bypass.

Once Mr. Snowden breached security at the Hawaii facility, in mid-April of 2013, he planted robotic programs called "spiders" to "scrape" specifically targeted documents.

This excerpt from Edward Jay Epstein's WSJ article sounds awfully sinister and, well, advanced. Not just compartments, but supersecret, Houdini-defying compartments! Except that "supersecret" just means "above secret"– top secret — and "compartments" aren't physical devices but logical, taxonomic infosec categories.

But robotic programs, of all things… in fact, robotic spiders! Oh, wait. He's talking about mundane bulk copy utilities and scrapers. Nevermind.

However one feels about Snowden's ideological self-presentation and whatever case can be made that he was/is under the control of foreign intelligence entities and using whistleblowing as a cover, I don't think this sort of rhetorical obfuscation is appropriate. The strength of a case should depend on its substance and validity, not on frosting applied through orc mischief or ignorance.

Who the what?

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A. Suppose there's a standard recipe for people who want to make coffee: harvest and prepare (or simply buy) some coffee beans, grind them up, boil them for a few minutes, and serve.

B. Suppose a company — let's call it Feurig — declares a patterned approach toward following this recipe:

  • Provide penetrable cups of a certain size containing prepared, ground beans.
  • Provide a ring sized to hold the cup, a mounted pin to puncture the bottom of the cup, a mounted injection nozzle to penetrate the top of the cup, and a hinged apparatus to automate these penetrations when a cup is inserted into the ring and covered by depressing a handle.
  • Provide an encompassing container capable of heating water, detecting its temperature, and injecting that water into the cup at a rate suitable for cooking the bean dust.

C. Suppose Feurig then implements this patterned approach toward following the recipe by making cups and a device to accommodate and process them.

D. Suppose further that a competing company with an interest in making coffee notes Feurig's success in the marketplace and creates a different machine — made from different materials, employing a different heating, monitoring, and injection facility, and penetrating the cup differently.

E. Suppose even further that yet another company makes a cup different from Feurig's but consistent with the scale of the holding ring  on Feurig's machine and capable of being refilled with arbitrary contents (such as tea or sympathy).

What is the API?

The API is not the standard recipe (A) for making coffee: that's an obvious practice deeply embedded in the common culture and widely exercised in industry and among hobbyists.

The API is not the device that Feurig made as an implementation (C) of the patterned approach that Feurig had declared, and it is not the competing machine (D), and it is not the alternative cup (E).

The API is B: a patterned recipe-following approach capable of being realized in a concrete implementation.

F. Suppose now that a complex culture of innovation and competition has arisen around the API defined in B, and that a company — let's call it Deploracle — comes along and buys Feurig.

Deploracle argues that its newly acquired intellectual property extends not just to the physical brewing device its wholly owned subsidiary invented, but also to the abstract pattern to which that device and its successors (and many knock-off devices) conform to ensure interoperability, substitutability, and some other seven- or eight-syllable word.

That's sort of like claiming IP rights not only over the particular car you manufacture, but also over the general idea of exposing a latch to open a door, providing access to a seat, and presenting a wheel, some pedals, and a feedback display to enable intentional control of a driving machine– a contingent set of conventions that declare a patterned approach to the general recipe for driving a car. (Adherence to those declared conventions of capability and method ensure that many automobile manufacturers can make a car, that many people can learn to drive a car, and that people who learn to drive a car can thereby drive any car that conforms to the expectations implicit in that training.)

So Diabetes-Benz lays claim not only to its actual line of cars, but also to the very idea of doing a car in that way, simply because they declared that convention when implementing their car.

Does that seem right to you?

seemright

D.C. Court of Appeals Agrees To Hear Merits of Anti-SLAPP Appeal In Michael Mann's Defamation Case

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In our last episode of the saga of Michael Mann's defamation suit against National Review, Mark Steyn, the Competitive Enterprise Institute, and Rand Simberg, I explained that the matter was wrapped in a dry, but crucial, procedural issue: the District of Columbia Court of Appeal was faced with whether a defendant who loses a motion under D.C.'s anti-SLAPP law may appeal immediately, or must wait until the end of the case.

As I argued, the strategic implications are dire for defamation plaintiffs and defendants: if anti-SLAPP denials are not immediately appealable than much of the value of the statute is lost to defendants, but if they are immediately appealable then defendants may often delay defamation cases for years.

On Wednesday2 the D.C. Court of Appeal decided to decide, probably. That is, they issued an order denying Mann's motion to dismiss the appeal, and accepting all of the amicus briefs on the issue, and directing the parties to brief the issue of appealability along with the merits of the anti-SLAPP issue. On the one hand, this signifies that the Court didn't think that the procedural issue was completely obvious, and therefore didn't dismiss the appeal or accept it without reservation. On the other hand, the Court still wants to hear more arguments about whether it should be hearing more arguments. The Court also ordered that the appeal be expedited, which means something somewhat different than you or I mean when we say "expedited."

The upshot: the defendants (save for Mr. Steyn, who apparently is not joining this appeal) will get to brief their arguments that Mann's lawsuit should have been dismissed under D.C.'s anti-SLAPP statute. Mann will get to re-make his argument that the appeal should be dismissed because the defendants shouldn't be able to appeal until the end of the case. The Court will then either punt by dismissing the appeal as premature, or agree that D.C. anti-SLAPPs are immediately appealable and address the anti-SLAPP merits.

Stay tuned. The First Amendment and anti-SLAPP issues in the case are very important, and I hope the Court reaches them.

Why Should Guns Trump Principles?

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Charles W. Cooke highlighted this story of state legislation proposed by Florida Republicans:

With supporters pointing to Second Amendment rights, the Florida House on Tuesday gave final approval to a bill that seeks to prevent insurers from denying coverage or increasing rates based on customers owning guns or ammunition.

. . .

House members voted 74-44, along party lines, to approve the bill (SB 424). The Senate also passed the National Rifle Association-backed bill last month, meaning the measure is ready to go to Gov. Rick Scott.

The bill would apply to property and automobile insurers and add language to part of state law that deals with “unfair discrimination.” As an example, the bill would seek to block insurers from refusing to issue policies because of customers’ lawful ownership or possession of firearms. Similarly, it would bar them from charging “unfairly discriminatory” rates based on gun ownership or possession.

The Republican party attempts, with mixed success, to brand itself as the party of small government, reduced regulation, and free markets. This bill illustrates why that branding is not entirely successful — because too many Republicans, given a favored issue (Guns! Drugs! Crime!), are as unabashedly nanny-statish as Bloomberg on his most Big-Gulp-decrying day.

The proposition is, apparently, that because gun ownership is a cherished right under threat, private insurance companies should be regulated and precluded from charging gun-owning customers more based on the insurance companies' risk assessment. I suppose this is a coherent argument taken in isolation; it's just not consistent with economic conservatism. Saying "greedy insurance companies should be regulated and not permitted to charge what they want, because the free market isn't working" sounds, instead, more like a classic progressive position.

Consider, for instance, the position of Republican state representative Matt Gaetz:

But bill sponsor Matt Gaetz, R-Fort Walton Beach, said Floridians have a constitutional right to bear arms, and even one case of insurers taking action because of gun ownership is “too much.”

“How much discrimination based on the exercise of a constitutional right is tolerable?” Gaetz asked.

Gaetz apparently believes that a private insurer charging a customer more based on its own risk assessment is a violation of that customer's constitutional right to do whatever he or she wants. So, Mr. Gaetz: would an insurance company that offers policies covering defamation be violating my First Amendment rights if it charged me — a mouthy blogger — more than a homebound shut-in who never utters or writes a word? Does an insurance company interfere with my right to procreate if it charges me more for a family health plan than an individual one? Should private insurance companies assume the risk of our exercises of constitutional rights? If the government disagrees with the private insurance market's risk assessment, should it intervene? Is it a good thing to increase the power of government bureaucracies and the courts to regulate whether insurance rates are "discriminatory?" Is the insurance market broken and incapable of addressing anti-gun-bias by driving customers away from gun-penalizing insurers and to gun-friendly insurers? I can see why someone would say those things, Mr. Gaetz. I just find them difficult to reconcile with your other positions:

Healthcare and Insurance

Matt Gaetz believes that health care decisions should be made by doctors and patients, not the government. That’s why Matt Gaetz wants to make sure that you can keep the health insurance you currently have. He will fight to keep health care costs down by eliminating junk lawsuits and fraud in the system.

Uh-huh.

This is not new. Florida is the state that passed a patently unconstitutional law purporting to regulate what doctors could ask their patients about guns. Florida is the state that decided the right to carry a gun trumps the right of private property owners to control their property.

Treating guns as an asterisk to principles — treating the Second Amendment as if it empowers the government to regulate private conduct, rather than just limiting the government — is incoherent and un-conservative.