Author: Ken White

12

Update: Dr. Mario Saad Asks Court To Reconsider Prior Restraint On Epically Ridiculous Grounds

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Last week I wrote about how a Massachusetts federal court rejected Dr. Mario Saad's bumptious demand for a temporary restraining order forbidding the American Diabetes Association from publishing statements of concern about his scientific articles.

As I said, that was not a close call. But Dr. Saad, and his lawyers, are determined, in the sense of "completely out of their minds." They filed a motion for reconsideration, supported by what I will call, in an excess of mercy, a legal brief.

Federal courts strongly disfavor motions for reconsideration; generally you have to cite facts or law that you could not have cited before. Dr. Saad doesn't. Dr. Saad argues . . . well. I won't characterize it. Let me quote it.

Narrowly focusing on the expression of concern – this is speech that has already been published both online and in print format and has been disseminated to countless individuals. Dr. Saad’s request for injunctive relief, asking this Court to order this existing speech to be removed from publication, obviously does not constitute a prior restraint.

In other words, Dr. Saad thinks that when he asks the Court to order the ADA not to publish items in its print magazine, and to take down its online content, that's not "prior restraint" because the ADA has already gotten to speak once.

Dr. Saad does not cite a single case relating to the doctrine of prior restraint, the core issue he is arguing about.

That is not an argument I'd expect from a lawyer. That is an argument I'd expect from a guy trying to start a fight in a bowling alley. That is an argument that shows that the advocate making it either (1) has no idea what prior restraint is and is too lazy and/or stupid to look it up, or (2) thinks the judge is very, very gullible, or (3) both.

As the ADA points out with remarkable patience, that's not what prior restraint means. Prior restraint doesn't mean "once they've said it once you can keep them from saying it again." Prior restraint is when a court uses the force of law to limit speech before a final determination of whether it is lawful. That's exactly what Dr. Saad is asking for.

I cannot immediately recall a lawyer making an argument this breathtakingly ridiculous. I hope that the judge sua sponte imposes sanctions.

Edited to add: A bowling alley line in a prior restraint post wasn't a Lebowski reference. I'm not that clever.

20

Darren Wilson and the Benefit of Doubt

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The United States Department of Justice has released a prosecution memo explaining how it decided not to bring federal charges against Ferguson Police Department Officer Darren Wilson for shooting Michael Brown.

The report is 86 pages long, with 28 footnotes. The report's summary of relevant federal law — what charges are available, what it would have to prove to convict Officer Wilson, and the landscape of use-of-force law — appears correct. I can't evaluate whether the Department has misrepresented what witnesses said or the circumstances of their statements, but the report's evaluation of the credibility of witnesses is convincing: it is based on inconsistencies in statements, inconsistencies with scientific analysis of physical evidence, and other factors that I would use as a defense attorney to attack a prosecution witness. The Department's conclusion that it can't prove guilt beyond a reasonable doubt is likely correct. Its conclusion that there is no credible evidence supporting prosecution, because there is no credible evidence contradicting Officer Wilson's account, is arguable.

Were I still a federal prosecutor, I wouldn't recommend prosecuting the case, and were I Wilson's defense lawyer, I would like my chances much better than the prosecution's chances. I don't disagree with the factual or legal analysis. But I find it remarkable, both as a former prosecutor and as someone who has practiced criminal defense for 15 years.

I find it remarkable because most potential prosecutions don't get this sort of analysis. Most investigations don't involve rigorous examination of the credibility of the prosecution's witnesses. Most investigations don't involve painstaking consideration of the defendant's potential defenses. Often investigators don't even talk to potential defense witnesses, and if they do, don't follow up on leads they offer. Most investigations don't carefully weigh potentially incriminating and potentially exculpatory scientific evidence. If an explanation of the flaws in a case requires footnotes, you shouldn't expect it to deter prosecution.

Instead, I'm more used to the prosecution assuming their witnesses are truthful, even if they are proven liars. I'm more used to contrary evidence being cynically disregarded. I'm more used to participants in the system stubbornly presuming guilt to the bitter end. I'm more used to prosecutors disregarding potentially exculpatory evidence that they think isn't "material." I'm more used to the criminal justice system ignoring exculpatory science and clinging to inculpatory junk science like an anti-vaxxer.

Why is this case different? It's different because Darren Wilson is a cop. Cops get special rights and privileges and breaks the rest of us don't. Cops get an extremely generous and lenient benefit of the doubt from juries. Nearly every segment of the criminal justice system operates to treat cops more favorably than the rest of us.

The Department of Justice report didn't say "we can't prove this beyond a reasonable doubt, particularly because juries defer to cops." It didn't need to. It's understood. The Department of Justice also didn't have to worry about being called out for inconsistent approaches to other reports. That's because when you're a black guy who shoots a white law enforcement officer in self-defense, they don't write an 86-page memo with 28 footnotes about it. They just prosecute you.

It's not unjust that Darren Wilson gets the benefit of the doubt. It's unjust that nearly everyone else doesn't.

59

A Few Comments on the David Petraeus Plea Deal: What Money And Connections Buy You

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David Petraeus, who suffered a fall worthy of a Greek tragedy when was caught leaking classified information to his biographer-girlfriend, has reached a plea deal with the feds, in the person of the U.S. Attorney's Office for the Western District of North Carolina.

As of now two documents are available online. There's the Information, which is the charging document the feds use when grand jury indictment is not required or when the defendant waives that right. There's also the factual basis — the narrative of facts to which Petraeus will admit. These documents reveal that Petraeus has agreed, in advance of charges being filed, to take a misdemeanor.

Generally, poor people react and rich people are proactive. Petraeus is sophisticated and has assets; he could afford to hire lawyers to negotiate with the feds before they charged him. As a result, he was able to secure a pretty good outcome that controlled his risks. The feds let him plead, pre-indictment, to a misdemeanor charge of improper removal and retention of classified documents under 18 USC section 1924. That means even if the federal judge who sentences him goes on a rampage, he can't get more than a year in federal prison — and, given that it's a misdemeanor, will very likely get far less. The Factual Basis includes a United States Sentencing Guideline calculation in which the government and Petraeus agree he winds up at an Adjusted Offense Level of 8, which means the judge can give him straight probation.

It is very difficult to get a misdemeanor out of the feds.

Petraeus' factual basis reveals that he could have been charged with much, much worse. The statement discusses his "Black Books" containing his schedules and notes during his command in Afghanistan; those books contained "national defense information, including Top Secret/SCI code word information." (Factual Basis at paragraphs 17-18.) Petraeus, after acknowledging that "there's code word stuff in there," gave the Black Books to his biographer/girlfriend at her private residence. "The DC Private Residence was not approved for the storage of classified information," the statement notes dryly. (Factual Basis at paragraphs 22-25.) He retrieved the Black Books a few days later after she had been able to examine them, and retained them. Thereafter, when he resigned from the CIA, he signed a certification that he had no classified material in his possession, even though he had the Black Books. (Factual Basis at paragraph 27.) Later, when Petraeus consented to interviews with FBI agents1 he lied to them and told them that he had never provided classified information to his biographer/girlfriend. (Factual Basis at paragraph 32.)

To federal prosecutors, that last paragraph of facts is like "Free Handjob And iPad Day" at Walt Disney World. First, you've got the repeated false statements to the government, each of which is going to generate its own charge under 18 U.S.C. 1001, which makes it illegal for you to lie to your government no matter how much your government lies to you. Then you've got the deliberate leaking of top secret/code word defense data to a biographer. An aggressive prosecutor might charge a felony under 18 U.S.C. section 793 (covering willful disclosure of national defense information) or 18 U.S.C. section 798 (covering disclosure of classified communications intelligence materials or information derived therefrom), both of which have ten-year maximum penalties. Those charges don't seem to require any intent to harm the U.S. — only disclosure of information which could harm the U.S. if distributed. Other than that? You better believe there would be a conspiracy count for Petraeus' interaction with his girlfriend.

If Petraeus were some no-name sad-sack with an underwater mortgage and no connections and no assets to hire lawyers pre-indictment, he'd almost certainly get charged a lot more aggressively than he has been. This administration has been extremely vigorous in prosecuting leakers and threatening the press.

So why is Petraeus getting off with a misdemeanor and a probable probationary sentence? Two reasons: money and power. Money lets you hire attorneys to negotiate with the feds pre-charge, to get the optimal result. Power — whether in the form of actual authority or connections to people with authority — gets you special consideration and the soft, furry side of prosecutorial discretion.

This is colloquially known as justice.

Edited to add: Since I wrote this the actual plea agreement has become available. The most notable part:

8. The United States agrees not to oppose the defendant's request that the defendant receive a non-custodial sentence.

9. The parties jointly recommend the imposition of a two-year term of probation.

So, for those of your keeping score at home: Commander of U.S. Forces in a war zone provides classified documents to his biographer/lover? Misdo, two years probation. 25-year-old small-time musician sells half a pound of pot while carrying a gun? 55 years in federal prison.

24

Weekend Censorious Dipshittery Roundup

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You may take the weekend off. I may take the weekend off. But the censorious spirit never rests, friend.

Dateline: England. MP George Galloway has arranged for his lawyers to send legal threats demanding £5,000 [upon information and belief, about $375,000] from Twitter users who called him an anti-Semite. Mr. Galloway, who has pledged to use any proceeds to build a memorial to Saddam Hussein, has been in the news for yes-butting during discussions of the Charlie Hebdo massacre and declaring his district an "Israeli-free zone." Galloway's legal threats are naturally ridiculous — or would be, if they were uttered in a nation with more sensible libel laws.

Dateline: St. Thomas, USVI: Terri Griffiths, the Acting Attorney General of the U.S. Virgin Islands, does a terrific Tony Soprano impression. She threatened to file criminal charges against the Virgin Islands Daily News for calling her after business hours on a cell phone number she provided in order to seek comment on news stories concerning her public responsibilities. It is not clear if she was serious, drunk, unmedicated, or positioning the Virgin Islands as the site of the next Far Cry sequel.

Dateline: Louisiana State University: Logan Anderson, a 21-year-old junior from Texas who is majoring in mass communications, somehow has an incomplete grasp of First Amendment jurisprudence. She penned an opinion piece in the student paper rounding up the usual suspects in support of censorship of predictably douchey social media app Yik Yak. Anderson's piece is notable for unabashed use of a common trope:

Critics of Bach’s argument for censoring the app argued that doing so would violate free speech — the ever-important bastion of people who like to say rude things on the Internet.

Free speech is constitutionally protected. Hate speech is not.

Leave aside for a moment the communications major's sneer at the First Amendment. Anderson offers a legal proposition: that "free speech" is constitutionally protected but "hate speech" is not. In American law, this is simply false. There is no legally recognized category of "hate speech," let alone any recognized exception to First Amendment protections for "hate speech." This is not subject to reasonable dispute. Please go sell ignorance somewhere else, Ms. Anderson; we're all stocked up here.

16

Judge Tim Grendell Was For The First Amendment Before He Was Against It

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Last week I described how Ohio judge Tim Grendell was abusing his contempt power to lash out at a critic, and how he justified his conduct in a puerile letter to the editor.

Jonathan Adler at the Volokh Conspiracy has picked it up, as has Instapundit and Watchdog.org. Any hope Judge Grendell has of a quiet resolution has been dashed.

With the publicity have come tipsters; Judge Grendell is apparently both feared and despised. One tipster pointed me to a time that Judge Grendell took a different approach to free speech.

In 2003 Grendell was an Ohio state representative. In the context of a symbolic and rather belated vote to ratify the 14th Amendment, he was quoted sneering at the Democratic sponsor of the vote as an illiterate:

Talking about the case that determined "separate but equal," the story said: "Grendell said Mallory should read the case, Plessy
vs. Ferguson, but he doubted Mallory would understand it. 'He's the only reason I might support the OhioReads program,'
Grendell said, referring to the state's volunteer tutoring program."

For what it's worth, Grendell is white and Mallory is black.

This generated condemnation from both Republicans and Democrats. Then-Representative Grendell defended himself, saying he was taken out of context and sounding a ringing endorsement of free speech:

The true irony of the situation is that had I made the comments attributed to me, it would have been my right to do so, without
censure or reprimand, based on my 1st Amendment Right to free speech," he wrote.

2

How did Judge Grendell descend from celebrating his constitutional right to be an ass in 2003 to mouthing platitudes about limits on free speech in 2015? What a curious journey for a "constitutional oriented judge and legal scholar."

56

Update: Judge Tim Grendell's Odd Letter To The Paper About His Censorious Thuggery

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Yesterday I wrote about how Ohio judge Tim Grendell was abusing his contempt power in an unconstitutional attempt to retaliate against criticism.

Today a source provided me with a copy of the letter Judge Grendell sent to the editorial board of a local paper, the Plain Dealer, in response to a critical article.

The letter satisfies my expectations concerning Judge Grendell.

To the Editorial Board ofCleveland.com,
As a constitutional oriented judge and legal scholar, I appreciate the First Amendment and the general right of free speech.

What tha blue fuck is a "constitutional oriented judge," other than an attempt to make me choke on my morning coffee?

Also, note the classic censor's rhetorical move: you always start saying you respect free speech. BUT . . . . [Edit: I am reminded that the technical term for this is "gertruding."]

But the right to free speech is not unlimited. Just as a person cannot stand up in a movie theater and yell "fire", a person has no constitutional right to falsely tell a party in an ongoing child protective custody case that the judge is mentally ill, does not follow the law, and should be "kicked" by that party. Such irresponsible and false speech is just as detrimental to the public welfare and the fair administration of our public justice system as the prohibited movie theater conduct is to public safety.

So much arglebargle.

First: "the right to free speech is not unlimited" is another typical censor's rhetorical move. It's a non sequitur. If you have relevant authority showing that this particular instance of speech is outside the protection of the First Amendment, cite it. Otherwise this is like saying, "well, there are some circumstances where I am allowed to shoot someone" when the cops come to arrest you for shooting your spouse.

Second: Stahhhhp. Staahhhhp with the hackneyed, misleading fire in a crowded theater reference. Protip: the legal analysis of anyone who references that Holmes line is not to be taken seriously.

Third, the generic and conclusory "detrimental to the public welfare and fair administration of our public justice system" is meritless for the reasons I explained yesterday. Most of the language he's complaining about is explicitly opinion and rhetorical hyperbole, and he hasn't come close to offering the sort of compelling evidence of actual disruption of justice required by three quarters of a century of Supreme Court precedent.

In the case in my court, involving the protection of a child in need ofjudicial intervention, Nancy McArthur's false speech encouraging a noncompliant party to continue to be disrespectful of the Court and noncompliant with Court orders was not protected speech. It was interference with a judicial proceeding and improperly impeded the protection of a child.

Judge Grendell's proposition seems to be that if a party to a case asks me about a judge, and I criticize the judge, I'm subject to a contempt order because I am encouraging disobedience. I invite Judge Grendell, with the assistance of a doctor holding a flashlight if necessary, to cite any authority supporting that proposition.

Confidentiality limitations prevent a discussion of any other facts, but suffice to say, the Plain Dealer's Editorial Board and Brent Larkin are mistaken as to both the facts and the law. This is particularly disappointing because the Court provided the newspaper with the correct information before it published its editorial.

Oddly, though the issue is so important to him, Judge Grendell cannot cite a single precedent supporting his unconstitutionally narcissistic view of his own contempt power. Ultimately this letter is reminiscent not of an analysis by a "legal scholar" but of a YouTube comment.

People like this decide on which of your rights the State will recognize.

17

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.3 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.

64

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…)

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.

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.

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?

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.