Popehat

15

Dr. Mario J.A. Saad Tries, And Fails, To Censor American Diabetes Association

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Dr. Saad is mad.

Dr. Saad is mad because of something bad — specifically, the American Diabetes Association, through its journal Diabetes, is publishing expressions of concern about some of his scholarly articles, and may formally withdraw them.

Expressions of concern — like formal withdrawal of past articles — are part of the peer review process. It's how scientific journals police themselves and call attention to questions raised about research they've published. Naturally they are a source of annoyance to the authors questioned, as I've written about in the cases of several legal threats against the blog Retraction Watch.

So when the ADA began questioning Dr. Saad's work, he and his lawyers at Deutsch Williams did not rely on the peer review process, or on advocacy or persuasion. Don't be ridiculous! This is America. So they sued.

Dr. Saad sued the ADA for defamation, claiming that they were harming his reputation by printing digital expressions of concern about his work, preparing a print run, and declining to publish him further until their concerns were assuaged. That much — the attempt to vindicate scientific propositions through litigation, rather than through . . . you know . . . science — is banal at this point. What makes Dr. Saad and his lawyers notable is the remedy they demand.

Dr. Saad demanded in his complaint, and sought through a motion, an injunction forcing the ADA to remove its expressions of concern, and prohibiting it from publishing them or withdrawing Dr. Saad's articles. This is aggressive, in the sense of patently ridiculous. Dr. Saad is demanding prior restraint of speech, something that is prohibited (at least as pre-trial relief) in almost all circumstances.

When you are asking a federal judge to do something patently unconstitutional, and you're not a federal prosecutor, you face a conundrum. Do you attempt to distinguish the decades of Supreme Court cases saying that the judge can't do what you want, explaining in creative fashion why they don't apply? Or do you just ignore the issue and hope it doesn't come up? Dr. Saad's lawyers went with the later strategy, which might be called Underpants Gnome lawyering. Their brief studiously ignores the First Amendment, the wall of prior restraint authority, and the equitable doctrine that defamation can't be enjoined.1 The ADA's brief in opposition is more or less "what the fuck, man?" with bluebooking and footnotes.

Lawyers employ Underpants Gnome lawyering because sometimes it works. It didn't this time. United States District Judge Timothy Hillman denied Dr. Saad's request for an injunction politely but firmly:

Whatever interest Dr. Saad has in preserving his professional reputation, it is not enough to overcome the heavy presumption against the proposed order’s validity. This is precisely the type of circumstance in which the law forbids courts from halting speech before it occurs. See Near v. Minnesota, 283 U.S. 697, 716, 51 S.Ct. 625 (1931) (declaring unconstitutional a court order preventing The Saturday Press from publishing a defamatory newspaper); Krebiozen, 334 Mass. 86 (affirming denial of injunction that would have prevented the publication of statements harmful to medical researchers’ professional reputations). The appropriate remedy in cases where a “publisher is to print a libelous, defamatory, or injurious story . . . lies not in an injunction against publication but in a damages or criminal action after publication.” In re Providence Journal Co., 820 F.2d 1342, 1345 (1st Cir. 1986).

This was not a close call.

Dr. Saad may still proceed seeking damages against the ADA, and might, hypothetically, get an injunction against specific statements found to be false after a full trial. But his effort to vindicate his scientific view through force of law has failed.

I offer no opinion on whether the ADA is right, or reasonable, in questioning Dr. Saad's research for scientific reasons. I got through my science/math/bio requirements in college through a Physics for Poets class in which I got a B+ by writing a speculative essay about antimatter derivative of 1950s Heinlein essays. But I do question the reliability of Dr. Saad's research on this basis: how can you trust the science of someone who tried to get a court order prohibiting public questioning of their conclusions? If a new therapy were based on a scientific theory that was defended not with peer review and the scientific method, but with litigation, would you trust it to be used on a loved one? I wouldn't. Dr. Saad may find that his litigiousness has harmed his credibility more than anything the ADA has ever said or done.

Hat tip to the folks at Retraction Watch.

49

Worthy of Contempt: Ohio Judge Tim Grendell Abuses His Office To Suppress Criticism

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Somebody mean bruised Tim Grendell's feels.

They didn't do it directly. Nobody marched up to Grendell and said "you're a petty, totalitarian thug" to his face. Nobody left a hurtful comment on his LiveJournal.

No, somebody said mean things about Tim Grendell in a private conversation with another person, a third party.

Tim Grendell caught wind of it. Now, generally, when people find out that someone is trash-talking them, they have a few options: they can rub dirt on it and walk it off like a goddamn grown-up, they can engage in debate, high or low, with their critic, or they can even sue the critic privately for some sort of redress of buttchafe.

But Tim Grendell isn't people. He's a judge. Specifically, he's a judge on the Geauga County Court of Common Pleas Probate and Juvenile Division in Ohio.

That gives Tim Grendell power — and he's not afraid to abuse it.

(more…)

44

A Warning To All Mankind

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Dear Friends:

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

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

Pony of Death

Yes. Satanists.

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

Hitler pony

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

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

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

Theodore Weinzel

Public Affairs, National Miniature Donkey Association.

37

A Brand New Exchange About Ponies

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David Charles

Jan 15

to me
Hi,

I hope you are well.

Would you be interested in collaborating with me on a free high-end article for publication on your site popehat.com?

All of my articles are of high-end editorial quality and will be 100% unique to you. I will provide a genuine piece that your readers will enjoy reading and will include one link in the body of the article.

Is there any particular area you'd like to see covered on the site? I have a number of topic ideas that I'd be happy to discuss with you further.

Please do get in touch if this is of interest to you.

Kind Regards,
David Charles
Editorial Manager
www.specialistauthors.com

Ken At Popehat

Jan 15

to David
Dear Mr. Charles,

I am well! Thank you for so hoping.

I am intrigued by the offer of a high-end article, particularly one that comes for free. It has been difficult to produce content for the website of late owing to a variety of factors that are best not transmitted by wire over state lines.

There is a particular area I'd like to see covered. Let me begin by asking — are any of your writers capable of addressing health and safety hazards? If so I will elaborate.

Respectfully yours,

Ken White
www.popehat.com

Ken At Popehat

Jan 27 (8 days ago)

to David
Mr. Charles? Are you there?

[email protected]

Jan 29 (6 days ago)

to me
Images are not displayed. Display images below – Always display images from [email protected]
Hi Ken,

Thanks for your email, appreciate you getting back to us.

My name is Aimee, I work with David here.

We are interested in working with you, and wondered if you would be interested in an article focusing on maintaining your brand status internationally online?

The article will be of the highest editorial quality and include one do follow link.

Would you be interested in proceeding?

Kind Regards,

Aimee

Editorial Quality Manager
www.Specialistauthors.com

Ken At Popehat

Feb 3 (1 day ago)

to aimee.w
Dear Aimee,

Thank you for responding! I sure hope David is all right. I was getting worried.

I appreciate your offer of an article focusing on maintaining my brand status internationally online.

Would this article be unique to our site? It would be hard to maintain our brand status even in this county, let alone internationally, if we have the same article everyone else has.

I'm very happy to hear that the article will be of the highest editorial quality. I don't mind sharing with you, Aimee, that we have some editorial issues at Popehat.com. There are fewer after certain legal proceedings involving Clark, but they have weighed heavily on my heart.

Is it possible to seek any customization of the article? I have nothing but respect for your high editors' grasp of multinational brand status issues, but there are certain pressing issues that I think are especially important. I'm wondering, specifically, if the article could address certain fell but little-known risks to brand status (and even to health and security).

Thanks,

Ken White
www.popehat.com

[email protected]

Attachments2:21 AM (14 hours ago)

to me
Hi Ken,

Thanks for getting back to me, much appreciated.

David is fine, he is just a bit snowed under at work now. Thanks for your kind concern :)

The article will be unique to your site, and I will not offer or share the content elsewhere.

You can of course have customization of the article, could you please let me know what you would like included or omitted in particular, and I can work this in.

I would need to request that the article is not tagged as either a guest post, posted by admin or mention Specialist Authors (at my managers request).

Would these conditions be OK for you?

Thank you again for your reply.

Ken At Popehat

4:28 PM (4 minutes ago)

to aimee.w
Dear Aimee:

I am glad to hear that David is all right, and that he has not been, say, trampled. NOT TRAMPLED! I just mean, uh, inconvenienced.

I am thrilled that you will customize my article! I feel that now brand status will be maintained not just internationally, but uniquely. You have no idea how worried bloggers are about their brand getting mixed up with other brands, like that time all those people from InfoWars got here by mistake and started screaming that I was the Whore of Babylon and that their anti-chemtrail-wristbands would protect them from my discussions of defamation jurisprudence. That was brand HUMILIATION, Aimee, and I'd like to avoid it if I can do so legally and consistent with my medical regimen.

So! Let's maintain the Popehat brand, internationally, even in countries that sound like hipsters, like Chad.

Here's what I would like included in the article: the grave physical and psycho-sexual hazards posed to brands by the Grave Pony Menace in the form of the Pony State of America and Canada (PSAC, pronounced "sack," as in ball- or gunny-). We can pretend to ignore it, Aimee, if we live in a Green Zone, like Chicago or Duluth or the Vice President's residence (the Vice President finds ponies distracting). But other places can't ignore it. The ponies — they come. They come. How can something so moderate-sized and fluffy be so inexorable? They come, and they stomp, and trample, and bite, and rear up in a showy and disconcerting way, and they stare into our eyes. When you stare into the pony, Aimee, the pony stares into you, particularly if it has ripped your midsection open with it's snake-quick sharp teeth.

How can we brand, given the threat of ponies? We can work to develop a brand — legal commentary, apocalyptic fantasy, trolling MRAs, art — what what good is the brand when the ponies show up? Lickety-split our customers go from saying "Popehat is where I go for trenchant free speech commentary" to "Popehat is where I went and saw a pony rip out a man's femoral artery and he seemed to do jazzhands as he bled out but that was probably just frightened flailing and they made Clark clean up but the place still smells ominously coppery." That's no brand. How do you pitch that? Hipster or not that will not test well in Chad.

So: in summation, please have your high editors create a piece that explains how Popehat can remain about legally sophisticated and informative snark, INTERNATIONALLY, and not about glistering piles of viscera left carelessly behind by things with names like Shasta and Clip-Clop and Prettypretty. HELP US DEFEND OUR BRAND.

I would be happy, per your request, to mention Specialist Authors. I hope that your Specialist Author who specializes in pony-violence has a name evoking probity, wisdom, and defiance.

I remain, very truly yours,

Ken White
www.popehat.com

P.S. The backlink is fine, but it can only contain a p and an n, not a p and an n AND an o or y.

59

With Great Power Comes Great Responsibility For Chip McGee's Feelz. And For Wombats.

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Bedford New Hampshire School Superintendent Chip McGee is a sensitive man. Chip McGee is sensitive to his duties as an educator. He's sensitive to the instruction and welfare of his students. He's sensitive to the constitutional limits on his power as a government official.

But mostly, he's sensitive to Chip McGee's butt. And Chip McGee's butt hurts. Chip McGee's butt hurts as though Chip McGee was "the Gimp" at Rod Stewart's last acid and cocaine-fueled anal wombat insertion party.

Why does Chip McGee's butt hurt so? Because feelz.

A number of students at Bedford High School were disciplined after making remarks on Twitter about Superintendent Chip McGee’s announcement on the social networking site that classes would resume on Wednesday.

It seems students said rude things about McGee's insistence they attend school the day after a blizzard. Chip McGee understands that the students have a right to speak their minds. After all, the Constitution guarantees even students the right to free speech. But with that great power comes a great responsibility, the responsibility not to upset Chip McGee.

I want to stress that the widespread rumors that Rod Stewart inserted a wombat into my anus are just that - rumors!

I want to stress that the widespread rumors that Rod Stewart inserted a wombat into my anus are just that – rumors! No credible witnesses have come forth to support these allegations. And if any do, they'll be suspended, and it will go down on their permanent records!

“Kids said some very funny, clever things,” McGee said on Thursday. “And some kids stood up and said, ‘Hey, watch your manners.’ That was great. And some kids — a few — said some really inappropriate things.”

And so Chip McGee suspended four of them, for tweeting, from the privacy of their homes, about just what an appalling dildo-bat Chip McGee actually is.

“It’s been a really good exercise in issues of students’ right to speech, on the one hand, and students’ and teachers’ rights to an educational environment that’s conducive to learning,” McGee said. “Kids have the right to say whatever they want about me.”

However, this does not mean students should expect to be able to make inappropriate comments on social media without consequences, McGee said — even though the tweets were sent outside of school.

Actually, the First Amendment means that students do have the right to say that Chip McGee is an appalling dildo-bat from the the privacy of their homes, even on social media, without governmentally-imposed consequences. And Chip McGee, for whatever reason the citizens of Bedford, New Hampshire in their wisdom decided, is the government. Schools may discipline students for speech that disrupts the classroom (shouting, during math class, that "Chip McGee is an appalling dildo-bat") or for speech advocating illegal activity,

But it is not illegal to call Chip McGee an appalling dildo-bat, or "the Gimp" at Rod Stewart's last anal wombat insertion party, from the privacy of one's home, or even on social media. In the first case, this is protected opinion (I sincerely and genuinely believe that Chip McGee is an appalling dildo-bat), and in the second, mere hyperbole. (It was probably just a ferret, or maybe a mongoose.) Particularly given that in Bedford, New Hampshire, Chip McGee is the government. He is The Man, as that wombat, and Rod Stewart, could assure you. And if these students and their parents sue Chip McGee, and win (as they assuredly would) he'll never pay a dime.

“The First Amendment right means you can say what you want, (but) it doesn’t mean that you are free of repercussion,” McGee said. “It can’t disrupt what we’re doing in school … If something disrupts school, and it (occurs) outside school, we not only can take action, we have to.”

McGee said he hopes that students will learn from this incident about “the line” of decent and appropriate commentary.

“You only learn that by checking where it is, and having something happen when you cross it,” he said.

"I support free speech, but" is the eternal cry of the government censor who knows censorship is illegal, but abuses his power because, fuck it, he's the government. In Chip McGee's case, it's a very big but. A but large enough to fit a wombat.

Or maybe a ferret or a mongoose.

UPDATE:

We tweeted these innocuous questions to Chip McGee earlier today.

No wombats, or ferrets or mongeese, were harmed during the making of those tweets. And yet Chip McGee has deleted his twitter account, in record time.

IT'S GONE.

4

On Seeing John Waterhouse's My Sweet Rose

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John Waterhouse, My Sweet Rose, 1908

John Waterhouse, My Sweet Rose, 1908. Photo courtesy of jwwaterhouse.com

Contemplate in all detail
A scintillating allegory
Integrating to avail
Alated visions of the story
Of a maid's respiratory,
Hortatory adoration
Of a floral territory:
Horticultural elation.

Ruminate this painted tale,
Instilling senses desultory
Till the slated sights regale
Your appetite for gustatory
Stimulation, for the glory
Of this vernal fascination
Inundates one category:
Horticultural elation.

Penetrating import's veil,
Distill the scents explanatory,
Requiring that the maid inhale,
Allowing that her laudatory
Attitude be prefatory,
Topiary recreation
Finishing her repertory:
Horticultural elation.

Devotion to this inventory,
Flights of the imagination,
Are baited by obligatory
Horticultural elation.

~David Byron, ca. 1990, for Cathie

38

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

26

Todd Kincannon Has Been Silenced, Or Something

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Last July I described how internet-famous troll Todd Kincannon had filed a federal lawsuit against South Carolina state bar officials, claiming that they were infringing upon his First Amendment rights by threatening him with attorney discipline based on his speech. There have been developments! Sort of.

Kincannon doggedly employs his modest talents to achieve notoriety, like the kid in Rudy if his goal had been to be an third-string insult comic instead of a Notre Dame football player. His litigation strategy has been less persistent. As I argued before, though Kincannon is a lawyer, his initial complaint looked less like a professional federal pleading and more like a LiveJournal post or possibly some sort of law-themed emoticon. Kincannon claimed, both in public and in unsolicited correspondence to me, that he had thrown the complaint together at the last minute to beat the statute of limitations, and would file an amended "more conventional pleading."

That was July 2014, six months ago.

It's not uncommon to file a complaint to beat the opposition to the courthouse, and then amend it to correct any errors or omissions. Most plaintiffs will amend quickly, before the other side files a response, so they don't need the court's permission. Kincannon did not, despite saying that he would. Months passed. Eventually the federal court, of its own accord, issued an order to show cause. The Court pointed out that (1) the summons it had issued had expired after 120 days when Kincannon didn't serve them on the defendants, and (2) the rules require the plaintiff to, as the Federal Rules of Civil Procedure put it, pull his thumb out of his ass.

Ignoring an order to show cause from a federal court is an atypical strategy, but Kincannon does not see himself as someone bound by convention. He didn't respond to the OSC. So a couple of days ago the Magistrate Judge recommended that the court dismiss Kincannon's suit for failure to prosecute. The assigned District Judge will likely follow that recommendation. The dismissal will be without prejudice, meaning that Kincannon could conceivably refile it. I, for one, would not want to return to a federal judge with a complaint previously dismissed for failure to prosecute. I would not expect good fortune.

It is possible, I suppose, that Kincannon has reached some sort of settlement with the defendants. I've never seen defendants accept a settlement that contemplated letting a case die like a pet rat forgotten in the garage, but it's possible. It's also possible that this is part of some shrewd legal strategy on Kincannon's part. Perhaps he has them now exactly where he wants them.

But I feel bound to repeat the question that skeptics asked from the start: was this all some sort of publicity stunt by Kincannon? Was his purpose to excuse his failure to deliver a book — called Racking-Fracking-Argle-Bargle-Libruls or something — though people had prepaid for it? Did he want to generate buzz around his book? Did he want to fund-raise? Did he just want attention? Given the history of state bars meddling in censorship, I was prepared to accept the proposition that there might be some substance to Kincannon's suit. But now — well. Perhaps other more sympathetic followers of the story will offer a plausible explanation. Or maybe Kincannon will explain.

It would be regrettable if Kincannon, through a crass and clumsy tactic, has diminished the credibility of the fight against bar association censorship.

150

A Few Questions For The New York Times About Depictions of Muhammad

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In the wake of the Charlie Hebdo massacre in Paris, some media outlets have published pictures of the cartoons that were terrorists' purported justification for slaughter. Some have not. Some have steered a bizarre middle course and shown people holding blurred cartoons.

The New York Times has elected not to publish the cartoons depicting Muhammad. The Times' public editor explained the decision as follows:

Mr. Baquet told me that he started out the day Wednesday convinced that The Times should publish the images, both because of their newsworthiness and out of a sense of solidarity with the slain journalists and the right of free expression.

He said he had spent “about half of my day” on the question, seeking out the views of senior editors and reaching out to reporters and editors in some of The Times’s international bureaus. They told him they would not feel endangered if The Times reproduced the images, he told me, but he remained concerned about staff safety.

“I sought out a lot of views, and I changed my mind twice,” he said. “It had to be my decision alone.”

Ultimately, he decided against it, he said, because he had to consider foremost the sensibilities of Times readers, especially its Muslim readers. To many of them, he said, depictions of the prophet Muhammad are sacrilegious; those that are meant to mock even more so. “We have a standard that is long held and that serves us well: that there is a line between gratuitous insult and satire. Most of these are gratuitous insult.”

“At what point does news value override our standards?” Mr. Baquet asked. “You would have to show the most incendiary images” from the newspaper; and that was something he deemed unacceptable.

I have questions for the Times in light of this policy.

1. Does the Times maintain a list of gratuitously offensive types of expression, and act based on that list, or does it address items on a case-by-case basis? If there is a list, is it public?

2. How big does a group have to be for the Times to accept its assertion that particular expression is offensive?

3. What percentage of a group must view expression as offensive for you to refrain from that expression? In other words, what portion of Muslims must find depictions of Muhammad to be gratuitously offensive for you to refrain from that expression?

4. Do you consider the degree of offense within a particular group? How do you measure that degree?

5. If there is dissent within a social or religious community about whether something is gratuitously offensive, how do you decide which faction to listen to?

6. Do you consider whether claims to offense may be politically motivated? For instance, if some American group (say, religious conservatives) asserted loudly that use of terms like "Happy Holidays" was gratuitously offensive, would you accept that, or would you ignore it on the basis that it was part of a "culture war?" If Americans claimed that the Flying Spaghetti Monster is gratuitously offensive because it is calculated to mock religion, how would you evaluate that claim?

7. Do you consider the recency of claims of gratuitous offense? If the claims arise relatively recently — when in the past the conduct was tolerated or did not occasion great statements of offense?

8. Does it make any difference to your decision that a particular group will react to what it sees as "gratuitous offense" with violence? Follow-up: if you do consider that, do you evaluate whether responding to threatened violence by not publishing something may encourage more threatened violence?

9. Has the New York Times ever decided not to run a religious image other than Muhammad on the theory that it would be sacrilegious or gratuitously offensive? Which one?

10. The Times has previously run anti-Semitic cartoons when they are in the news, "Piss Christ," pictures of a painting of the Virgin Mary smeared with dung, and pictures of Westboro Baptist protesters in vivid anti-gay shirts. Is it the Times' position that those decisions can be reconciled with this one, or is this a change in policy? If it is a change in policy, is it intended as an institutional one, or one that just remains during the tenure of a particular editor?

11. Please consider the cover of the new post-massacre Charlie Hebdo:

hebdo

Is this picture, leaving offense aside, newsworthy? If so, will you weigh that newsworthiness against the offense you believe it will give, or apply a categorical ban? Do you believe that words can adequately convey the literal, figurative, and emotive impact? If someone asserts that the picture is offensive not just as a depiction, but as a caricature, can your readers evaluate that claim without looking at the picture?

12. Are there particular staffers at the Times who specialize in evaluating and advising about degrees of offense? How are they trained?

13. Do you have a plan for what to do if a group expands its assertions about what is offensive? For instance, suppose that some Muslims begin to assert — vociferously — that depictions of all those it counts as prophets (including Jesus) are offensive and must be avoided, how would you evaluate that claim?

14. There are, as you know, different groups within Islam. What if a reform group began encouraging depictions of Muhammad as a signifier of reform, asserting that the contrary interpretation is false, and that those who attack depictions are wrong about Islam? How would you decide which faction to avoid offending?

15. Let's say some blogger starts a trend of using this emoticon: @[–<. It is widely understood that the emoticon is meant by its users to depict Muhammad, in an effort to illustrate that bans on depictions are unprincipled and can easily be made ridiculous. Would you run the emoticon? Or would you just describe it? How would you decide?

16. Imagine that a segment of Muslims begins to assert that it is sacrilegious to print Muhammad's name without a ṣalawāt like "pbuh." Are there conditions that would arise that would lead you to do so? What are those conditions? Are violence, or threats of violence, one of them?

I'm just asking questions.

92

Charlie Hebdo – Open Thread

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

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

Charlie-Hebdo-Charia-en-Libye

 

CharliehebdoCharlie2Charlie

 

Charlie4

 

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

The goddess of free speech.

The goddess of free speech.

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

26

Bibimbap Sunday

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Every now and then I make bibimbap with the kids on Sunday afternoon. It's labor-intensive, but a good family activity. At this point I can con my kids into doing most of the hard work.

Bibimbap, often called Korean comfort food, is simple in concept: a bowl of rice with some meat and vegetables on top, which one vigorously mixes together into a satisfying mash. But as with American comfort staples like mac and cheese, the variations are endless. Even though it's time-consuming, it's simple, and most kids who can be trusted with sharp implements can make it.

Here's how I did it this time. Purists will find it Westernized. I prefer to think of it as fusion.

(more…)

92

Vote For Popehat's 2014 Censorious Asshat Of the Year!

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Having skipped a year, Popehat will now continue its tradition of polling you, gentle readers, to elect our Censorious Asshat of 2014.

Only people or entities that we've written about in 2014 are eligible. I've culled the many asshats down to a few, based on volume and vigor of censoriousness, ridiculousness, hubris, and an X factor that I know when I see. Noted censorious asshat Brett Kimberlin has ascended to our Censorious Asshat Hall of Fame and is no longer eligible. Don't be greedy, Brett.

Vote early and often! Here are the candidates:

Carl David Cedar, a Texas attorney who threatened blogger Scott Greenfield with violence and lawsuits when Scott criticized Carl for swiping someone else's blog content. In Aggravation: A rare example of threats that are longer than my analysis of them. In Mitigation: ultimately pathetic, like a college sports star gone to seed.

Crystal Cox, blogger and litigant, who won an important free speech victory even as she engaged in a deranged nationwide blitz of frivolous litigation against her critics. In Aggravation: Sued people, including yours truly, in 10 different federal courts for criticizing her. In Mitigation: batshit crazy.

Michiko Shiota Gingery, Koichi Mera, and GAHT-US Corporation, litigants against the City of Glendale, who filed a patently offensive and frivolous lawsuit on behalf of reactionary Japanese factions seeking to suppress a Comfort Women memorial in Glendale because history hurts their fee-fees. In Aggravation: revisionists and atrocity apologists. In Mitigation: none.

Professor Thane Rosenbaum, who tried to do for censorship what John Yoo did for torture: make a legal case for it. Rosenbaum put logic and First Amendment doctrine in stress positions in an effort to justify broad and unprincipled "hate speech" laws. In Aggravation: "Fire in a crowded theater." In Mitigation: As an academic, has had no exposure to adversarial testing of his awful legal theories.

Jim Ardis, Mayor of Peoria, who abused the power of the state to get search warrants to identify and raid someone who authored a clearly satirical Twitter account about him. In Aggravation: Lack of remorse, open use of lap-dog cops and judges. In Mitigation: Streisanded into the stone age.

Bergen Community College, which forced a professor on leave and required him to visit a psychiatrist because he posted a picture of his young daughter in a Game of Thrones t-shirt. In Aggravation: Went straight for the "OMG Virginia Tech think of the children!" excuse. In Mitigation: As modern college administrators, deprived of role models displaying common sense, proportion, or shame.

Dale D. Berkley, Senior Attorney with the United States Department of Health and Human Services, who sent a threatening letter to a blogger over a patently satirical post on government letterhead. In Aggravation: Your tax dollars paid for that. In Mitigation: what else is he going to do all day?

"Crisis Manager" Xavier Hermosillo, who was hired to help repair the reputation of the California town of Murrieta after its residents screamed at buses full of kids, and shrewdly elected to threaten a cartoonist with . . . we're still not sure exactly what. In Aggravation: YOU HAD ONE JOB. In Mitigation: To be fair, threatening cartoonists is a step back from screaming obscenities at kids on buses.

Miles Sisk, who sought to bring the mighty power of the University of Oregon government to bear against mean students who used memes to make fun of student senators. In Aggravation: Betokens doom of our civilization. In Mitigation: where's he gonna learn better?

Ares Rights, a shadowy firm that continues to abuse the DMCA in an effort to suppress reporting on and criticism of clients including the Ecuadorian government. In Aggravation: Persistent, utterly amoral. In Mitigation: managed to shut up Adam Steinbaugh for several minutes.

Roca Labs, which sells pink slime you eat to stop feeling so empty inside, and which is intent on one-upping Prenda Law by suing EVERYONE FOR ALL THE SPEECH. In Aggravation: Preposterously litigious and shamefully intolerant of criticism. In Mitigation: High potential for long-term entertainment and eventual cinematic flame-out.

Ken and Patrick of Popehat, who used Popehat's comments and Twitter feed as their own living room and ejected people who annoyed them when the mood struck. In Aggravation: Remorseless, rude, absent-minded, foul-mouthed, generally douchey. In Mitigation: Only idiots think that's censorship.

Voting closes at 5:00 Pacific Time on January 2, 2015.

This poll is closed!
Poll activity:
Start date 2014-12-29 12:40:09
End date 2015-01-04 11:22:00

Poll Results:

Who shall be Popehat's Censorious Asshat of 2014?

84

The Curious Case Of The T.V. Attorney And Twitter

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I'll confess that I don't watch much television news, but I have run across Greta Van Susteren through the years, principally when she served as an analyst during the O.J. Simpson trial. Since then, it would appear Ms. Van Susteren has parlayed her expertise into a nightly primetime show on the Fox News Channel.

Where she pontificates on matters outside her expertise.

For instance, Ms. Van Susteren, who may be highly qualified to discuss the criminal law, also feels qualified to discuss computer surveillance, security, and international intelligence. But on these matters she has no more business giving opinions than do I. Less, in fact. I know this, because I am one of her sources of news.

Screenshots follow, to punish the guilty.

Greta

Greta2

Now, it may well be that Ms. Van Susteren has been to North Korea three times, and she may well read a bit about the country, but if she is obtaining her news from "the North Korea state-owned news twitter feed," she is obtaining it from a dubious source indeed. The feed's actual author, me2, has never been to the Korean peninsula at all, and cannot read a word of the language. "The North Korean state run media" is a parody, derived in tone more from Soviet Russian newspapers (which I could read) than from Korean propaganda.

How could this have happened? Probably confirmation bias: the Tweet was too good to check. If Ms. Van Susteren had scrolled further down the feed, she'd have found such gems of news as:

or the latest celebrity gossip from Pyongyang:

We're told, by the media, that we should trust their authority, that they have "layers of editors and fact-checkers" at their service. But sometimes they're no better than bloggers, particularly when they venture outside their areas of expertise, or they fail to consult actual experts.

This is not a slam against Ms. Van Susteren or Fox News in particular. The "North Korea state-owned news twitter feed" has taken in many journalists through the years, at publications and websites more and less prestigious, on the right and left sides of the ideological center. It is to say, rather, that we as consumers of what the news media purvey, should be careful about what we're buying.

Trust but verify. Caveat emptor.

UPDATE:

Despite multiple comments at her own site warning Ms. Van Susteren, THIS IS A PARODY, meaning, "Go back and look," Ms. Van Susteren (who has updated her post) merely concedes that "some say" the "North Korea state-owned news twitter feed" is a parody. I myself, and others, have tweeted her multiple times to tell her: "Yes it is."

Greta3

 

It's disappointing that, rather than conceding the obvious, Ms. Van Susteren went with the "some say" dodge. I've fallen victim to benevolent pranks and hoaxes myself: the best course is to offer congratulations: "You got me," laugh, and admit it. So I've offered Ms. Van Susteren time-stamped proof:

I'm sure Ms. Van Susteren gets many replies on Twitter, so perhaps she hasn't read of this. But she has been active on the service, since the world learned the truth about Joe Biden.

It is a sweet puppy. Again, this isn't ideological criticism of Ms. Van Susteren, or of Fox, but an example of confirmation bias. When I want to get ideological, I do it with Juche. SECOND UPDATE: drudge-siren Greta4   If Ms. Van Susteren replies or addresses this, we will update.

THIRD UPDATE:

drudge-siren

Remember when I said this gentle bit of media criticism was non-ideological?

Slate, hardly a bastion of right-wing thought, has just fallen for the same bait (here's a cache). According to Slate, North Korea is enjoying a massive breakthrough in internet technology.

Again, a screenshot to punish the guilty:

Slate3To its credit, Slate has left the story (mostly) intact, and published a correction. A most grudging correction, which hardly acknowledges that author Lily Hay Newman was hacked by … her own gullibility, and again, confirmation bias.

Slate

It isn't a "misstatement," Ms. Newman. It's a failure to read. Again, if you'd only scrolled down the feed a bit, you'd have discovered this recap of the 2014 World Cup:

Or this important news about Ebola in the United States:

Caveat lector.

FOURTH UPDATE: MUST CREDIT POPEHAT AND DPRK_NEWS!

drudge-siren

drudge-siren

Sweet Jesus! The Washington Post!

WAPO1

 

WAPO

 

Layers of editors and fact-checkers.

FIFTH UPDATE!

Newsweek, which isn't saying much, these days, but I'll take it.

Newsweek1

 

SIXTH UPDATE:

Another hour, another scalp claimed from people who should know better.

And finally… Welcome Instapundit readers! Many thanks to Professor Reynolds for the link to this post, which as acknowledged above, demonstrates something he's been saying about news consumption for years: Caveat emptor. SEVENTH UPDATE, AND AN EIGHTH THERE SHALL NOT BE! drudge-siren Newsweek can take a joke. They asked for an interview, and we gave it. And: Mediaite, a site devoted to analysis of the U.S. running dog lackey media, also asked for comment. We complied. EIGHTH UPDATE, FIFTEEN DAYS LATER. The most trusted name in news. "Braggartly." CNN8 CNN has memory-holed that part of the story, but we keep screenshots. Archive here. 

NINTH UPDATE: BRITISH TABLOID EDITION, EIGHTEEN DAYS LATER

The spit-licking hyenas of Britain's Daily Mail may embrace the DPRK, but that will not save them.

DailyMail1

DailyMail2

DailyMail

43

The Statement Of South Pittsburg Commissioner Jeff Powers

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Fellow public servants!

From the reports and the debates on these reports heard at the last city council meeting, it is evident that we are dealing with the following main facts.

First, the wrecking and diversionist-espionage work of disgruntled city employees, among whom a rather active role was played by the police, affected more or less all, or nearly all, of our organizations – economic, administrative, and sewage treatment.

Second, sabotage and espionage are being carried out at the social media level, including Facebook and Twitter.

Jeff Powers of South Pittsburg Tennessee exhorts city workers to crush internet sabotage and wrecking

Jeff Powers of South Pittsburg Tennessee exhorts city workers to crush internet sabotage and wrecking

Third, some of our city employees, both at the center and at the periphery, not only failed to discern the face of these wreckers, spies, and killers, but proved to be so careless, complacent,and naive that at times they themselves assisted in sabotage by failing to discipline or terminate the wreckers.

These are the three incontrovertible facts which naturally emerge from the reports and the discussions on them.

WHAT HAVE WE LEARNED, FELLOW CITIZENS?


How are we to explain the fact that our city employees, having a rich experience in the struggle against all sorts of jay-walking, littering, and sewage leaks, proved in the present case to be so naive and blind that they were unable to discern the real face of the enemies of South Pittsburg, that they failed to recognize the wolves in sheep's clothing and were unable to tear away their masks? What negligence, friends! And how shall it be punished?

Can it be claimed that the wrecking and sabotage of the agents of disgruntled city employees operating in the territory of South Pittsburg can be anything unexpected and unprecedented for us? No, it is impossible to claim this. This is demonstrated by the wrecking acts in various branches of the road maintenance department during the past ten years, beginning under the previous mayor, as is recorded in the minutes of the July 2014 council meeting.

Can it be claimed that in this past period there were no precautionary signals or warnings about the wrecking, spying, or terrorist activities of the disgruntled agents of the water department? No, it is impossible to claim this. We had such signals, and the city council has no right to forget about them.

WHAT IS TO BE DONE? 

What are the facts which our city employees have forgotten about, or which they simply have not noticed?

They have forgotten that city employees at all times act as representatives of South Pittsburg, whether at work, at home, in church, or on the internet. They have forgotten that there is no right to privacy in South Pittsburg. We have an accepted habit of chattering about the cold coffee in the council meeting room, but people don't want to ponder about what this thing is – sabotage by Myrtle Huffines, the mayor's secretary, who has been told, again and again, that we want Folger's, not Maxwell House from the Piggly Wiggly. Sabotage is not a myth, it is a very real and ever-present threat. by wreckers who wait for the opportunity to attack South Pittsburg, to crush it, or to undermine its might and to weaken it within.

It is this main fact that our city employees have forgotten. And so we must bring down the fist of the united peoples and government of South Pittsburg upon these enemies, to remind them of their duty. Henceforth, fellow public servants, fellow citizens, the eye of South Pittsburg shall be upon you all. All of these traitors, and all enemies of the peoples of South Pittsburg must be reminded, that criticism of the city council and its departments is a termination offense. We will pursue these enemies to the death, as we did with the raccoon that was knocking over trash-cans on Woodleaf Road.

The mistake made by the dissenters on the council is that they fail to notice and do not understand this difference between the old and new South Pittsburg, the changes wrought by the traitors of Facebook and Twitter, and, not noticing this, they are unable to adapt themselves to fight with the new wreckers in a new way. I move that the revised policy on social media use by city employees be passed.

Do I have a second?

198

Broken Windows And Broken Lives

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The Broken Windows Theory led to an era of aggressive policing of petty offenses — which in turn led to increased confrontation between police and civilians.

The theory depends upon the proposition that tolerating bad conduct, however petty, sets social norms, and that bad conduct steadily escalates to meet those norms.

Second, at the community level, disorder and crime are usually inextricably linked, in a kind of developmental sequence. Social psychologists and police officers tend to agree that if a window in a building is broken and is left unrepaired, all the rest of the windows will soon be broken. This is as true in nice neighborhoods as in rundown ones. Window-breaking does not necessarily occur on a large scale because some areas are inhabited by determined window-breakers whereas others are populated by window-lovers; rather, one unrepaired broken window is a signal that no one cares, and so breaking more windows costs nothing.

Let's take this as true for a moment.

If tolerating broken windows leads to more broken windows and escalating crime, what impact does tolerating police misconduct have?

Under the Broken Windows Theory, what impact could it have but to signal to all police that scorn for rights, unjustified violence, and discrimination are acceptable norms? Under Broken Windows Theory, what could be the result but more scorn, more violence, and more discrimination?

Apparently we've decided that we won't tolerate broken windows any more. But we haven't found the fortitude to do something about broken people. To put it plainly: just as neighborhood thugs could once break windows with impunity, police officers can generally kill with impunity. They can shoot unarmed men and lie about it. They can roll up and execute a child with a toy as casually as one might in Grand Theft Auto. They can bumble around opening doors with their gun hand and kill bystanders, like a character in a dark farce, with little fear of serious consequences. They can choke you to death for getting a little mouthy about selling loose cigarettes. They can shoot you because they aren't clear on who the bad guy is, and they can shoot you because they're terrible shots, and they can shoot you because they saw something that might be a weapon in your hand — something that can be, frankly, any fucking thing at all, including nothing.

What are we doing about this? Are we pushing back against unwarranted uses of force and deprivations of rights, to prevent them from becoming self-perpetuating norms?

No. We're not pursuing the breakers of windows. If anything, we are permitting the system steadily to entrench their protected right to act that way. We give them second and third and fourth chances. We pretend that they have supernatural powers of crime detection even when science shows that's bullshit. We fight desperately to support their word even when they are proven liars. We sneer that "criminals have too many rights," then give the armed representatives of our government stunning levels of procedural protections when they abuse or even kill us.

Do we really believe in Broken Windows Theory? If we do, how can we be surprised at more casual law enforcement racism, more Americans dead at the hands of police, more matter-of-fact violations of our constitutional rights? We left the windows broken. We helped set the norm. They're just following it.