Eyes on Final Fantasy Forums - Blogs - Raistlin

Glenn Beck and the Department of Irony

Raistlin — Wed, 22 Jan 2014 21:53:25 GMT

Glenn Beck compared Bill Nye's criticism of creationists with the Catholic Church's treatment of Galileo, concluding that Nye was on the "wrong side of history."

I know Beck long ago reached the level of self-parodying, but at this point I think he's in league with the manufacturers of irony meters, because he keeps making mine explode.

Lori Kilchermann is a yellow journalist

Raistlin — Mon, 22 Jul 2013 22:52:40 GMT

In a 2012 story on a meth bust, the Ionia Sentinel-Standard, based in Michigan, decided to run a picture of the bust site farmhouse from 2 years earlier, when a political candidate had held a fundraiser. This led to accusations of the Sentinel-Standard and its editor, Lori Kilchermann, engaging in "yellow journalism," or distorting irrelevant details of a story for purposes of sensationalism or partisanship. These detractors also publicly encouraged others to cancel their Sentinel-Standard subscriptions in protest.

The merits of the accusations are debatable. What is not debatable is that Ms. Kilchermann was really pissed off by them. So pissed off, in fact, that she sued for defemation and other related charges, including tortious interference with a contract or business relationship.

The complaint has been uploaded here, and the above summary really doesn't miss much. The main alleged "defamation" and "tortious interference" were a letter the defendants sent to Kilchermann's superiors complaining about the stuff she put in the paper -- or, in other words, how she was performing her job. If Kilchermann's allegations have any merit whatsoever, then complaining about an employee's job performance to a superior can amount to defamation, and engaging in the marketplace of ideas by encouraging others to disassociate themselves with a business is unlawful tortious interference with the business. In other words: patent bulltrout.

A motion's hearing for summary judgment was supposed to be heard last week, but apparently it was postponed. Which highlights another important issue: despite how utterly meritless this case is, it has still drug on, costing the defendants thousands in legal fees. These baseless cases can still be ruinous to defend without pro bono representation in jurisdictions like Michigan that do not have comprehensive anti-SLAPP statutes.

A SLAPP is a Strategic Lawsuit Against Public Participation, a lawsuit designed to silence a speaker or otherwise punish him for engaging in a constitutional right, or at least make such engagement prohibitively expensive. In the normal course of a civil case, a plaintiff files the complaint, which starts the lawsuit. The complaint does not have to list every piece of evidence or legal argument, and just needs to claim sufficient facts that, if believed, justify the charges. The defendant has two options: filing an answer (making his own factual claims) or a motion to dismiss. Motions to dismiss at this stage are very unlikely to succeed, as they require the court to assume all facts alleged by the plaintiff in the complaint are true, and no discovery is permitted or any other documents consulted. If the case is not dismissed then, the defendant files his answer, and the case moves onto the discovery phase, which can last months and require hours of more work and thousands dollars (depositions, filings, etc.). After discovery, if the plaintiff hasn't shown enough facts to make out his case, the defendant can file a motion for summary judgment. A judge can award summary judgment to a party if there are no material facts in dispute after discovery and one side has the prevailing legal argument.

The summary judgment stage is where most bogus lawsuits are thrown out, as the burden for a defendant to win a motion to dismiss is very high. But as you can see, just getting to the summary judgment stage requires a lot of time, money, and attorney work. The length and cost of the typical legal process allows abusive plaintiffs with some money to punish critics, and most of them will not have the money to put on their own defense and be willing to settle (which usually involves self-censorship).

Anti-SLAPP statutes are designed to fight such injustice. They generally allow defendants to file a special motion to dismiss which, upon a basic showing that a constitutional right is at issue and that the lawsuit was designed to stifle that right, require the plaintiff to proffer sufficient facts and legal arguments to support their case. If the plaintiff can't, the case is dismissed, and the defendant is awarded attorney fees. Robust anti-SLAPP statutes are a hugely important tool for protecting free speech, as they not only massively speed up the process and punish abusive plaintiffs, but also add greater incentive for attorneys to accept potential anti-SLAPP cases pro bono, knowing that they can be awarded attorney fees if they succeed.

Unfortunately, it appears that Michigan does not have an anti-SLAPP statute (there isn't a federal one, either). which is why this absurd case can go on for so long. Lori Kilchermann may or may not be a yellow journalist, but she's certainly a horrible and unprincipled one, who has no problem trying to financially punish her critics. She should not be allowed in any position of authority of any newspaper, and any paper who employs her should be viewed with extreme caution.

That pesky Fourth Amendment

Raistlin — Mon, 03 Jun 2013 22:48:26 GMT

My public defender�s office handles a lot of interesting cases. One of the most notable to come out of my office in recent years was Maryland v. King, which involved a challenge to a state law that permits the police to obtain a DNA sample of all people arrested for a crime, before any conviction and without the need for any belief that the DNA was relevant to the crime the arrestee was detained for. DNA sampling was thus just another routine booking procedure like fingerprinting, but DNA tests were used in this fashion almost exclusively to check �cold case� databases to see if the arrestee had been involved in other crimes.

Police could already get a warrant for a compelled DNA test if they had probable cause to believe the suspect�s DNA would reveal evidence of a specific crime (e.g., a rape case where semen was found), but this was the first law that allowed police to collect DNA as a routine matter, without any needed connection to a crime. The law was challenged in court on Fourth Amendment grounds in King when a compelled DNA test revealed a connection by King to a crime unrelated to the one he was arrested for. The law was all-but invalided by the Maryland Court of Appeals, and the State appealed to the US Supreme Court, which delivered its opinion today.

Legal details and mumbo jumbo�
SCOTUS reversed the Maryland courts and held up the DNA collection law in its entirety, based on flimsy logic and transparent rationalizations. The central basis the majority used to uphold the law was its analogy to routine booking procedures (such as fingerprinting), and the State�s interest in identifying suspects. But as Scalia�s blistering dissent points out, DNA testing in this context is not at all like fingerprinting (which itself has not been explicitly condoned under the Fourth Amendment), because it is not used to identify, but to investigate other crimes.

Fingerprints are a classic and powerful IDing tool. You get a suspect�s fingerprints, and you can run it through a database to get a name and certain criminal histories within minutes. Regardless of whether warrantless, suspicionless fingerprinting should be allowed under the Fourth Amendment, it is indisputably a very useful tool for law enforcement, as it is a quick, efficient, and cost-effective way of proving identities. Fingerprinting may also help solve a previously unsolved case, such as if a suspect left a fingerprint at another crime before he had a criminal history, but that is an incidental effect from its primary purpose.

On the other hand, DNA testing takes weeks, long after the identity of a suspect has almost certainly been proven through other means, and is much more expensive. The databases that house DNA profiles are not meant to identify the person behind the samples, but to compare to other samples collected in unsolved �cold cases� where DNA was collected at the scene. Thus, an explicit purpose of Maryland�s DNA law was as an investigative tool for law enforcement to solve crimes, not to ID suspects (for which it is not efficient or cost-effective) � and notably, identifying suspects is not even mentioned in the law. The Court majority, lead by Kennedy, ignored all of this, and instead appeared to apply a vapid, superficial understanding of DNA tests gleaned from watching an episode of CSI, and an understanding of the Maryland law taken from an editorial on Fox News.

Kennedy claimed that DNA testing serves four different identification purposes: 1) IDing arrestees so cops know who they�re dealing with; 2) Obtaining a criminal history so jails know who they�re dealing with; 3) Ensuring people show up for trials, so higher bails can be set for people connected to past crimes; and 4) Obtaining accurate criminal histories for purposes of setting an appropriate bail. None of these make the slightest bit of sense, unless post-arrest we eliminate the possibility of bail for weeks/months until DNA testing is completed.

This only makes sense if you have a juvenile understanding of both DNA testing and criminal procedure � which is disturbingly common from appellate judges without any trial-level criminal experience. Bail reviews happen almost immediately after an arrest where charges are filed; in Maryland, an arrestee is taken before a commissioner within hours for a preliminary bond, with a right to a bond review before a judge the next business day. A suspect�s fingerprints and DNA would have been taken within a day or two, and so DNA results would not have been back yet. Again, this only makes sense if we start denying bail to everyone before DNA testing is complete.

And guess what? Even if that were permissible, it�s entirely unnecessary. Because fingerprints already uncover any criminal history. I have represented clients at over a hundred bail review hearings (in Maryland, unlike most states, you have a right to counsel at them by statute), frequently conducted just the day after arrest, and by that time the court already knows the defendant�s criminal history.

For this proposition, the Court cites a couple of state-funded studies over a period of 8 years and covering areas from 3 states and finds� a handful of examples where DNA testing would have revealed more of a suspect�s violent past than was known at the time when they were released on bail, and then went on to commit other crimes. Of course, the Court doesn�t mention whether DNA testing would have actually made any difference in those cases, because it almost certainly wouldn�t have.

Kennedy seemed to try to limit the ridiculous holding based on the qualification that the crime for which the suspect was arrested must be a �serious offense.� See, e.g., �When officers make an arrest supported by probable cause to hold for a serious offense and they bring the suspect to the station to be detained in custody, taking and analyzing a cheek swab of the arrestee�s DNA is, like fingerprinting and photographing, a legitimate police booking procedure that is reasonable under the Fourth Amendment.� No explanation exists for what a �serious offense� is, and it will be interesting to see how much, if any, meaning that qualification is given in the future.

And the worst part is? The Maryland Court of Appeals decision agreed that using DNA testing for IDing purposes was in accordance with the Fourth Amendment, and refused to strike down the law entirely. But unlike SCOTUS, the Maryland court actually looked at the law in question, how DNA testing is really done, and why King�s DNA was taken in this case and concluded that Maryland�s law was unconstitutional when utilized for purely investigative, non-identification-based purposes. The Court of Appeals allowed for the remote, potentially unprecedented, possibility of when DNA might actually be needed for identification purposes, such as if fingerprints are altered/destroyed. If the Supreme Court actually bought its own bulltrout, the state opinion would have been affirmed. But the identification nonsense was just transparent, nonsensical rationalizations to get to the desired outcome.

Justice Scalia wrote a strong dissent that ripped apart the majority opinion, mostly for the grounds I already stated. He also pointed out that the Maryland law and DNA testing procedure in question effectively eliminates any possibility that it could be used for identification, for a variety of reasons:

� The law prohibits testing a suspect�s DNA before the first scheduled arraignment date, which is necessarily after any arrest or bail review hearing.
� The DNA database hit linking King to the unrelated previous crime was not discovered until four months after King�s arrest.
� It is not even regularly possible to ID a suspect from a profile based on the FBI collective database, because it only has two sets of profiles: samples from known convicts/suspects, and samples from unsolved crime scenes. Even the known convicts/suspects database does not contain identifying information beyond the DNA profile, because law enforcement is already expected to know that through other means.
� Most devastatingly, Maryland�s DNA law gives a list of exclusive, permitted reasons to collect compelled DNA samples, including to solve cold cases, and none of them involve identifying currently arrested suspects.

This oblivious misunderstanding of the Maryland law at issue in this case led to Scalia�s caustic snipe that �I hope the Maryland officials who read the Court�s opinion do not take it seriously,� because acting in accordance to it would actually result in jail time, as Maryland strictly proscribes any compelled testing of DNA outside of its strict procedures.

But this case was somewhat notable for another reason: a 5-4 split, but not down so-called party lines. Breyer (�liberal�) and Kennedy (conservative-leaning �moderate�) were in the majority upholding the DNA law, with Scalia (unapologetic arch-conservative) leading the remaining liberals in dissent. Breyer is one of the worst Justices on the Court (second only to Alito), and is by far the most wishy-washy. He would permit the police to do a wide range of things as long as he felt like the conduct wasn�t too bad, or if it was only to really bad people (I suspect Kennedy referred only to �serious offenses� to keep Breyer in the majority). Scalia, on the other hand, is terrible on some issues, but great when there�s a clear constitutional mandate: the Fourth Amendment requires warrants for searches for routine investigatory purposes (such as �who committed this rape where we only have a semen sample�), and thus a warrant is required. End of story.

The opinion in Maryland v. King was not only blatantly wrong, but its reasoning embarrassingly bad. It also highlighted (again) what an unprincipled hack Breyer is (the most blatant example of which was when he voted that one courthouse�s display of the Tenth Amendments was constitutional and another was unconstitutional, despite every other Justice on the Court recognizing that there was no meaningful distinction between the two cases). Even Kagan has been better than him on the liberal side, and she was a former prosecutor and Obama ~~shill~~ Solicitor General. But most of all, I�m concerned about what happens to the Fourth Amendment when Scalia retires, and the Court potentially loses from the conservative side its one consistently sane voice.

Information is the enemy

Raistlin — Mon, 27 May 2013 21:04:45 GMT

[I wanted to rant on this issue, but I figured EoEO might be tired of my anti-Obama speeches. Though it is his fault for continuing to give me so much material. :p]

To the government, information is the enemy. That is why the US government has demonized Wikileaks, because it threatens to shame governments for their misconduct. So-called issues of �national security� may have merit on certain, specific occasions, but the broad way the label is used makes it clear that that is not the central concern of the government; the main concern is secrecy.

No President has ever embodied the above principle more than Obama. Despite saying nice things about whistleblowers early in his Presidency, Obama�s administration has prosecuted an unprecedented number of them, more than all previous administrations combined. His administration goes after ever single leak it uncovers (that it didn�t itself plan, anyway), no matter how minor. It is like Obama (or someone very high up in his administration, such as Holder) is a petty, immature bully, who cannot stand the thought of someone disobeying orders. Jon Stewart recently ripped apart Obama on this issue.

Now the administration has argued in court documents that a reporter was engaged in a conspiracy to commit espionage when the reporter talked to a government leak. Not for helping to plan to illegally steal government info, but simply for receiving and publicizing information. One would have thought this sort of asinine and dangerous argument was foreclosed by New York Times v. US, when the Supreme Court told Nixon that he couldn�t prevent the NYT from publishing the leaked Pentagon Papers during the Vietnam War, but Obama has pretty clearly lost any semblance of a sane grasp of constitutional law as soon as he took the oath of office. One of the lawyers in the NYT case has now said that Obama is passing Nixon as the worst President ever when it comes issues of national security and freedom of the press. Considering he is also among the worst on civil liberties issues, after his Presidency is over I suspect much fewer people will disagree with my label of him as one of the worst Presidents in US history.

But I digress. This principle of secrecy has been embraced at every level of government in the US, including our police forces. Despite it becoming routine for state police forces to electronically record interrogations, the FBI stubbornly sticks to relying solely on FBI agent transcriptions, backed only by the agent�s word. How do they justify refusing to use such an easy method of definitive recording? According to the FBI itself:

First, the presence of the recording equipment may interfere with and undermine the successful rapport-building interviewing technique which the FBI practices. Second, FBI agents have successfully testified to custodial defendants� statements for generations with only occasional, and rarely successful, challenges. Third, as all experienced investigators and prosecutors know, perfectly lawful and acceptable interviewing techniques do not always come across in recorded fashion to lay persons as proper means of obtaining information from defendants. [emphasis added]

Let me sum that up for you: 1) There might be a half-second pause when we have to hit the �on� button; 2) we don�t really need electronic recordings, because courts and juries generally believe whatever we tell them to anyway; and 3) oh yeah, and we don�t want them to know the real truth. Not being embarrassed, not being open to public scrutiny, not losing any battle, is more important than the truth. Absolutely horrifying.

In the NYT case, Justice Douglas offered some important words in his concurring opinion that are even more apt and vital today:

The dominant purpose of the First Amendment was to prohibit the widespread practice of governmental suppression of embarrassing information. It is common knowledge that the First Amendment was adopted against the widespread use of the common law of seditious libel to punish the dissemination of material that is embarrassing to the powers-that-be. The present cases will, I think, go down in history as the most dramatic illustration of that principle. A debate of large proportions goes on in the Nation over our posture in Vietnam. That debate antedated the disclosure of the contents of the present documents. The latter are highly relevant to the debate in progress.

Secrecy in government is fundamentally anti-democratic, perpetuating bureaucratic errors. Open debate and discussion of public issues are vital to our national health. On public questions, there should be "uninhibited, robust, and wide-open" debate.

If only the government itself shared that value. But the ones in charge are the ones who most value secrecy, to the detriment of the country and everyone else in it.

Cop Science is Junk Science

Raistlin — Mon, 11 Mar 2013 22:55:53 GMT

Last week, I almost had my first trial. And it was going to be one of the most complicated cases to appear in Maryland District Court (which covers non-jury misdemeanor cases): a challenge to so-called Drug Recognition Experts.

Take this hypothetical scenario: a woman is pulled over for driving over a dividing line (�erratic driving�). The cop talks to her, asks if she�s been drinking. She denies it, but seems a little out of it. He asks if she�ll take a preliminary breath test, and she accepts. She blows a .00. The cop asks her out of the car to perform a �field sobriety test,� with mixed results; she stumbles a bit on the balance tests, and her responses to questions are a bit delayed. The cop asks if she is on any medication, and she responds that she takes insulin and prescription stimulants for various medical disorders, and has taken them for years. The cop then arrests her for driving under the influence.

At the police station, the woman is examined by a Drug Recognition Expert. The DRE is just another cop, but with some additional training. The DRE asks her some questions, checks her vital signs, and examines her eyes. He then looks at the DRE Matrix, which contains a list of symptoms as they relate to each type of drug. The DRE then diagnosis the woman as under the influence of a CNS stimulant, and the case goes forward to trial. At trial, the DRE testifies that the woman was driving while impaired by a CNS stimulant, and not impaired for any other drug, medical condition, or physical circumstance. There is no other evidence of drug-induced impairment. The court finds her guilty of DUI.

DREs are, in short, magic cops. In Maryland, they receive 10 days of training, most of that done by other cops or prosecutors. In a DRE case before mine where I sat second chair, the �expert� testified that he spent maybe a couple of hours during his training with an actual doctor. He had gone to college, where his major was accounting, and he had taken one course in biology. Yet after just 10 days of training regarding the different types of drug (both legal and non-legal), the DREs are supposedly able to diagnose someone as impaired by a specific type of drug, excluding all other possible causes, including medical conditions. In my hypothetical case, the DRE would testify that the woman was impaired by a CNS stimulant and not by, for example, low blood sugar. Because they have zero knowledge or training in medical conditions, and do not even have access to the suspect�s medical history during their �examination,� this borderline-supernatural ability presumably comes about through magic.

An example of a DRE matrix. Note the overpowering odor of feces.

It is bulltrout. Not just ordinary bulltrout either, but flagrant, brazen bulltrout. Medical doctors with three years of schooling and several more years of training would be tentative to make such a judgment, yet DREs claim to be able to do it easily after a 10 day seminar of cops and prosecutors, with a couple of hours chatting with a doctor. Yet, like most cop sciences, courts are eager to accept their conclusions. �Cop science� means �science� that is completely made up by law enforcement with little to no backing in the scientific community. Law enforcement has a history of making up trout in order to make investigating and prosecuting people easier, including fabricating science-sounding techniques that are in fact pulled out of their collective ass. The field sobriety test (stand on one foot, say the alphabet backwards, etc.) is one such cop science, albeit a less harmful one. But another cop science with a HUGE impact on the criminal justice system is drug-sniffing dogs.

Cops rely on drug dogs all the time, and courts readily accept a drug dog�s alert as sufficient probable cause to justify a search of someone and/or their property. And of course that�s justified, right? K9 units are everywhere, searching for drugs or bombs or tracking down suspects. Dogs have an incredible sense of smell which has been relied on by humans for centuries. Surely drug dogs are reliable.

And drug dogs are reliable� at least, if you consider flipping a coin to predict the presence of drugs to be reliable as well.

In reality, drug dogs are incredibly unreliable. The significant independent studies (see pages 4-9) regarding the accuracy of drug dogs are filled with findings on how unreliable they are. And yet drug dogs go through extensive training and retraining by law enforcement to earn their qualifications. How does that add up?

Well, the training is bulltrout. It is routinely not double-blind (meaning that the handlers know where the drugs are), which is hugely significant. Because dogs not only have an incredible sense of smell, but they also are extremely sensitive to body language, which is their primary method of communication with other dogs. Dogs are very sensitive to their handlers actions and expectations; even if a handler is not intentionally trying to encourage a dog to alert, the dog can read the handler�s body language. This isn�t just speculation either, as studies have shown that the handler�s belief has the most impact on whether a drug dog alerts. In the field, when a police officer is expecting to find drugs, the dog will react to those unconscious signals (or even conscious ones in the case of some cops). And where the handlers are just as oblivious as the dogs as to the presence of drugs, a drug dog�s alert is simply inaccurate.

Sorry, Fido. You're actually useless.

Recognizing this, a couple of years ago the Florida Supreme Court issued a groundbreaking decision that held that a drug dog�s alert is NOT by itself sufficient for probable cause unless the handling officer testifies to the dog�s reliability through field data � the dog�s hits and misses in actual cases. This does not solve the problem, as police routinely record a dog�s alert as accurate if there is any indication that drugs were ever on a person or in a car (the dog is then detecting the �residue�), but it would be a big step forward.

Unfortunately, just last month the US Supreme Court reversed the FSC�s decision, ruling that a drug dog�s training by itself can render the dog reliable. There was one opening left: apparently the trial defense attorney did not challenge the legitimacy of the dog�s training, that argument was waived on appeal, and SCOTUS did not address it. Even so, challenging the drug dog culture is an uphill battle. It may even be futile.

Fortunately, challenging DREs does not look quite so hopeless. Locally, there was a comprehensive case consolidating over a dozen felony cases in another Maryland county, where a Circuit Court judge found that DREs are junk pseudoscience and their conclusions should not be admissible. The full opinion is here (I had trouble viewing the file on my browser, but I could view it in Acrobat Reader after downloading the .pdf). Other courts and states have accepted DREs based on ridiculous premises, such as accepting law enforcement organizations as the relevant scientific community that DREs need to be accepted by in order to be valid. But with the great weight of evidence and the scientific and medical community nearly uniformly on one side, future challenges are not quite so bleak. Hopefully this is one cop science that can be forever killed off, but there�s still a long ways to go.

A federal case about cock suckers

Raistlin — Thu, 20 Dec 2012 23:37:01 GMT

Yesterday, a federal Court of Appeals decided the fate of a trademark on �cock suckers,� which are rooster-shaped lollipops produced by a woman named Marsha Fox in support of the University of South Carolina Gamecocks. The trademark examiner denied her trademark on the grounds that it was �scandalous,� and the federal court affirmed.

In support of this ruling, the court cited a law originally passed in 1905 that prohibited the issuance of trademarks if it �consists of or compromises immoral, deceptive, or scandalous matter.� That provision is still enforced today. The Court has interpreted that provision to allow for the refusal of trademarks where the subject �invokes a vulgar meaning to a substantial composite of the general public.� What follows is an overview of the vulgar definition of �cocksucker� and fellatio, which is mildly amusing in a court opinion if you are also mentally 12-years-old (there was also a rather forced semantic argument about whether �cock sucker� was any different from �cocksucker,� but the PTO and court rejected that distinction out of what I can only assume is an irrational anti-cock bigotry).

The opinion, of course, is stupid. This is not another rant about free speech, because the courts have held, rightly or wrongly, that this unequal treatment of speech does not implicate the First Amendment; Fox is still free to use and advertise her �cock suckers,� but the federal government will simply not use its resources to protect it (I would still argue that this unequal preference of the government against certain speech implicates the First Amendment by chilling protected speech that involves profanity/vulgarity; the court�s reasoning for the contrary seems a very strained rationalization for the law�s pathetic attempt at moral authority over language). The decision is stupid because it mindlessly enforces puritanical policies that are about 50 years behind the times.

It is time to get real: swearing is no big smurfing deal. People swear all the time now, and cuss words are ubiquitous in society and in media. Yet in the US, there are no swear words on cable TV before a certain time of night, and on public broadcast channels, a network can be fined for a single fleeting swear uttered by an unconnected person. If you just watched daytime TV, you might think swearing never occurred in public, but you would only have to venture outside to realize how untrue that is. This trademark is denied solely because it references something sexual in a rather obvious double entendre (I can only imagine Gamecocks supporters are well used to such jokes by now), based on a 1905 law that is still being similarly applied today. It is time we as a society grow the smurf up and get over this inconsistent taboo against naughty words.

Plus, double entendres are just great. What red-blooded male hasn�t sent a picture of a rooster titled �mycock.jpg� to a girl on the internet?

So I have a message to the Patent and Trademark Office as well as the Federal Circuit Court of Appeals: suck my cock.

The New York Times Editorial Board Are Shameless Liars

Raistlin — Sat, 01 Dec 2012 22:35:18 GMT

I made this a blog post because it's kinda long and I didn't think a lot of people in EoEO would care. I just wanted to rant about an issue that often bugs me.

It�s easy to get caught up in sports team politics, where you root for your side because of certain labels, not for any ideological reasons. This is apparent with the lack of liberal protest for many of Obama�s policies, despite him being by many measures even worse than Bush on civil liberties and other �liberal� issues. But most mind boggling to me, however, is the self-labeled liberals who decry Citizen�s United.

Brief overview: Citizen�s United was a 2010 Supreme Court decision that struck down a federal law that prevented corporations from spending money on private political activism (also called �independent expenditures,� which just means political spending not directly connected with any candidate�s campaign or campaign funds). In that case, the federal government sought to prevent a movie that was critical of then-Presidential candidate Hillary Clinton, because that movie was funded largely from corporate funds. The Court ruled that that was unconstitutional, because such a movie was pure political speech that warranted the highest First Amendment protection.

This decision almost immediately drew widespread criticism from liberal corners, many of which, like the New York Times editorial board, apparently never read it.

Last month, Supreme Court Justice Alito, who I have absolutely no respect for at all and consider far and away the worst person on the bench, defended the 2010 decision in Citizen�s United. Alito argued that eliminating a corporation�s political advocacy is constitutionally prohibited in part because of the difficulty of drawing a distinction with media corporations and protecting their speech rights. The New York Times was not happy with that.

Originally Posted by NYT

But Justice Alito�s argument wrongly confuses the matter. It is not the corporate structure of media companies that makes them deserving of constitutional protection. It is their function � the vital role that the press plays in American democracy � that sets them apart.

[�]

The Citizens United majority never explained why any corporation that does not have a press function warrants the same free speech rights as a person. Neither did Justice Alito. Meanwhile, the false equivalence of money and speech put forward by Citizens United and the money it unleashed is wreaking havoc in our politics.

There are so many things wrong with this. Let�s start with the oblique criticism of the �false equivalence of money and speech.� Of course spending money constitutes speech. The Supreme Court has long held, correctly, that �speech� for First Amendment purposes constitutes pretty much any expression or activity that is meant to express a viewpoint. Protesting is speech, flag burning is speech, and giving money to support a political viewpoint is speech. And even if it wasn�t speech, it is equally unconstitutional to put financial barriers up to inhibit speech. For example, a law that requires protestors to pay the city for the resulting police overtime required for security is unconstitutional, because it is a financial burden on speech. Prohibiting an organization from using its funds on speech is a burden on speech, even if, for the sake of argument, the spending itself is not speech (which it clearly is).

Secondly, and this is where the NYT really should read the actual opinion, the Citizen�s United majority in fact did address why all corporations have the same speech rights as media corporations. Quite eloquently and accurately (citations left in because I�m too lazy to remove them all):

Originally Posted by Citizen�s United majority

The media exemption discloses further difficulties with the law now under consideration. There is no precedent supporting laws that attempt to distinguish between corporations which are deemed to be exempt as media corporations and those which are not. �We have consistently rejected the proposition that the institutional press has any constitutional privilege beyond that of other speakers.� Id. , at 691 ( Scalia, J. , dissenting) (citing Bellotti, 435 U. S. , at 782); see Dun & Bradstreet, Inc. v. Greenmoss Builders, Inc. , 472 U. S. 749, 784 (1985) (Brennan, J., joined by Marshall, Blackmun, and Stevens , JJ., dissenting); id. , at 773 (White, J., concurring in judgment). With the advent of the Internet and the decline of print and broadcast media, moreover, the line between the media and others who wish to comment on political and social issues becomes far more blurred.

The law�s exception for media corporations is, on its own terms, all but an admission of the invalidity of the antidistortion rationale. And the exemption results in a further, separate reason for finding this law invalid: Again by its own terms, the law exempts some corporations but covers others, even though both have the need or the motive to communicate their views. The exemption applies to media corporations owned or controlled by corporations that have diverse and substantial investments and participate in endeavors other than news. So even assuming the most doubtful proposition that a news organization has a right to speak when others do not, the exemption would allow a conglomerate that owns both a media business and an unrelated business to influence or control the media in order to advance its overall business interest. At the same time, some other corporation, with an identical business interest but no media outlet in its ownership structure, would be forbidden to speak or inform the public about the same issue. This differential treatment cannot be squared with the First Amendment.

And that does not even go into the difficulties of determining what is �media� and what isn�t. Obviously a national newspaper like the NYT or TV news would qualify (though maybe it shouldn�t�). But what about a regularly-issued newsletter? What about a website with relevant news updates? It�s partially for this reason that courts simply given every speaker the most protection allowed for the type of speech at issue.

Quite simply, the First Amendment has never been interpreted to give the press any rights over any other speaker. I have exactly the same free speech rights to make this blog post that the NYT has to publish its insipid editorial. The NYT�s reliance on the �press function� as a justification for such a distinction shows a complete ignorance of not only First Amendment law, but the Citizen�s United decision itself. It is impossible to reconcile 200 years of First Amendment jurisprudence if you create a non-media-corporation exception to speech rights, and the liberal support seems to come from the widespread (and justifiable, I might add) negative perception of corporations as a whole. But the First Amendment does not allow us to pick-and-choose a disfavored class of speakers to which we deny free speech rights.

I don�t have the energy for another full defense of Citizen�s United as a whole, so I'll leave it at those points. But I will say that the First Amendment principles here are so strikingly obvious, that the Citizen�s United party was unqualifiedly supported by none other than that conservative, corporatist shill� the ACLU.

The Citizen�s United decision was a major First Amendment victory that should be applauded by social liberals and civil libertarians. The fact that it isn�t just goes to show that sports team politics (in this case, us vs. corporations) rules our political debate.

Goddamn women ruin everything

Raistlin — Wed, 28 Nov 2012 00:50:18 GMT

I learned so many new things today.

Did you know that the battle of the sexes is intensifying? To women, settling down and getting married is of utmost importance, but men don't want any of that anymore. Men don't want to deal with modern women. And do you know why?

smurfing feminists.

That's right, feminists have ruined everything. They've caused women to stop being women (assuming "woman" is defined as "subservient cook and baby-maker"). They've royally pissed men off: first they started wearing pants, then they started taking our jobs, and now they're actually providing for themselves. What the smurf, women? Don't do you know I can't be a MAN unless I provide for someone else?

Although on second thought, this change is actually pretty sweet for me. Men don't really want committed relationships and responsibilities anyway. We just want to smurf bitches for as long as we can get away from that. Men are happy to be able to date forever without getting married, because it's impossible to have any sort of emotional and financial commitments in a relationship without a ceremony and government label affixed to it.

If you think the above is just too ridiculous for anyone to actually say seriously, I suggest you click on this link.

Contrary to what feminists like Hanna Rosin, author of The End of Men, say, the so-called rise of women has not threatened men. It has pissed them off. It has also undermined their ability to become self-sufficient in the hopes of someday supporting a family. Men want to love women, not compete with them. They want to provide for and protect their families � it�s in their DNA. But modern women won�t let them.

It�s all so unfortunate � for women, not men. Feminism serves men very well: they can have sex at hello and even live with their girlfriends with no responsibilities whatsoever.

I want to vomit.

And what sparked this sexist bulltrout?

According to Pew Research Center, the share of women ages eighteen to thirty-four that say having a successful marriage is one of the most important things in their lives rose nine percentage points since 1997 � from 28 percent to 37 percent. For men, the opposite occurred. The share voicing this opinion dropped, from 35 percent to 29 percent.

Yes, that's it: slightly more women now consider marriage "one of the most important things in their lives" than men. This should go in the dictionary under non-sequitur; the conclusion does not follow from the facts.

From the "no duh" department

Raistlin — Sun, 25 Nov 2012 07:03:36 GMT

Sex makes people happiest, per new study

In other news: rain is wet, Iceglow doesn't understand paragraphs, and Tifa's Boobs has boobs. Shocking, I know.

Pop quiz

Raistlin — Sat, 10 Nov 2012 00:40:23 GMT

Your car bursts into flames in the middle of the street about 100 feet from your house. What do you do?

If your answer is "run inside, grab some Kool-Aid, and then throw the Kool-Aid on the flames," you think very similarly to alleged gang hitmen in my area.

"You can't yell fire in a crowded theater"

Raistlin — Sat, 22 Sep 2012 16:43:19 GMT

Well no trout, Sherlock.

The fact that you can't yell fire in a crowded theater is a point brought up in almost every debate about free speech in the US. And it has annoyed the hell out of me for years. It's always used as a justification for free speech being absolute, which is a position no one ever argues to begin with, during debates over whether a certain form of censorship is good or not. But unless the censorship at issue involves yelling fire in theaters, the point makes no goddamn sense. What the hell does it have to do with whether "hate speech" or Holocaust denial or any other type of speech should be illegal?

The phrase was originally uttered by former Supreme Court Justice Holmes, one of the most overrated jurists in US history (let's just say Holmes voted to uphold forced sterilization laws). The case was Schenck v. US (1919), where SCOTUS affirmed the conviction of Schenck for badmouthing the draft. Literally, that's all he did; he said the draft violated the Thirteenth Amendment, was despotic, and other scathing critiques. He did not advocate violence, law-breaking, or anything else, as the opinion explicitly stated that Schenck's advocacy "confined itself to peaceful measures such as a petition for the repeal of the act."

And that's what people are quoting: a Supreme Court opinion that flagrantly violated fundamental free speech rights by upholding the punishment of simple political advocacy that the government did not like.

I was reminded of my pet peeve when I read this excellent article from a lawyer who also hates people reciting that point. The article goes into the history of Schenck and subsequent cases, including Holmes's full reversal when he realized just what he had helped unleash. It's well worth reading for anyone interested in the development of free speech law in the US.

So enough of Holmes and fires and theaters already. We have thankfully moved well beyond anything Holmes had to say on freedom of speech.

There are really people capable of using the internet that are this stupid

Raistlin — Mon, 13 Aug 2012 20:20:05 GMT

In one episode of Sherlock, Watson discovers to his amazement that Holmes was not aware of the basic, preschool-level fact that the Earth revolves around the sun. That information is meant to result in shock from any recipient because of course the Earth revolves around the sun, and every single living being on the planet knows that. That Holmes is able to ignore such common information is a sign of what a unique individual he is, and that no one real could be quite like him.

Well, as they say, life imitates art. We haven't quite reached that level of basic ignorance, but we got closer than I would have thought possible.

It is rather rare for people's capacity for stupidity to shock me anymore, but it has reached a new low after some people mentioned that the Olympics first started sometime around 3,000 years ago. Now I know what you're thinking: "Oh, there were probably some Young Earth Creationists who claimed the Olympics could not have started then, because the world's population hadn't recovered from the Flood yet" or some such nonsense. But no, it is worse. Much, much worse.

Originally Posted by NATALiA @nmacdonalddd

how could something happen 3000 years ago when we are only in 2012? #mongol

Some of these were probably trolls. But I've checked the twitter accounts of a few, and I've verified with a fair degree of certainty that the above tweet was legitimate. In response to this image being circulated, @nmacdonalddd was barraged with messages about, well, calendars. She responded with the following tweets (among others):

FS I DON'T STUDY THE HISTORY OF THE PLANET:/:|:/

Originally Posted by In response to a brief explanation of AD/BC

oh..... thanks learnt more in this 5 mins than I did the whole 2 years of standard grade history :):):)

Before people start criticizing the American education system, this particular woman is apparently from the UK or nearby (or so I assume from her spelling and diction).

My life in comic form

Raistlin — Mon, 16 Jul 2012 03:39:19 GMT

I have discovered a new webcomic which accurately portrays my life right now.

Something like this happens at least a few times every day. Fucking French.

Study everything.

I want this armadillo. I mean, between the rapping and sunglasses, it would be the coolest pet ever.

I wish it were that easy.

And speaking of comics, the new SMBC is spot on. It also applies to 99% of religious debates.

"ShlupQuack is a whore" and other statements that will cost me money

Raistlin — Mon, 09 Jul 2012 01:04:00 GMT

Everyone knows what slander is, right? A defamatory statement that is spoken. Well generally to recover any damages for a slander lawsuit, a plaintiff has to show actual (or special) damages, meaning a measurable economic harm, such as being fired from a job. General, presumed damages for loss of reputation are not available except for the very worst kind of slander, that does the very most kind of harm. This is called slander per se.

What are the types of slander per se, you may ask? Well, the type of statements that do the most harm to a person, as you would expect: that directly relate to the plaintiff's professional ability in his or her trade; that assert that the plaintiff suffers from a particularly horrible disease; that assert that the plaintiff is guilty of a crime of "moral turpitude" (as in, not a traffic violation); or... wait a sec, "imputing unchaste behavior if the plaintiff is a woman"? What the fuck? :Oo:

That's right. One of the very worst things you could ever possibly say, up there with accusing someone of murder or of having the plague, is saying that a woman is not the demure, innocent, ladylike person that she obviously is. We must award such a woman for the irreparable damage done to her reputation that must be protected at all cost. What dastardly person could ever do such a horrible thing to a poor, innocent woman incapable of defending herself in the public sphere full of people that might think that the woman may have -- gasp! -- slept with someone outside of marriage! The horror! I would expect a woman to faint at the mere thought.

I have no idea if slander per se has actually been followed recently in this context, but it is still the recognized law in the majority of states (it even showed up in a practice bar exam question!). The very fact that it was taken seriously enough to be put into my torts outline at all is rather worrisome.

SUPREME COURT APPROVES DEATH PANELS, END OF AMERICA

Raistlin — Thu, 28 Jun 2012 19:34:01 GMT

I made this a blog post instead of an EoEO thread because I doubt many of you care that much about the details.

Today, the Supreme Court issued a massive opinion upholding the Affordable Care Act, aka �Obamacare� (CNN�s hilarious screw up notwithstanding). I disagree with the decision, but in a somewhat surprising way. On a strictly constitutional level, I think Chief Justice Roberts�s opinion (which while not technically the Court�s opinion in all respects, ends up controlling all the results) is entirely correct: penalizing/taxing the uninsured is not a valid exercise of Congress�s commerce clause power, but Congress does have that power under its tax powers. But as I disagree that Congress invoked their tax powers in this case, I disagree that the ACA is constitutional.

The provision at issue was the so-called individual mandate provision, which demands that almost every US citizen �shall� retain health care by 2014 or face a �penalty� on their tax returns. The ACA has other provisions which explicitly create or mention taxes, and Congress deliberately used other language for the individual mandate. This was done because, as Congress and Obama repeatedly stated, the mandate was not a tax, but a penalty for noncompliance. They tried to distance the mandate as far as possible from a tax, because a majority in Congress would likely not have supported anything that could be spun as a �tax increase.�

And, in fact, the first part of the Court�s opinion explicitly concludes that the mandate is not a tax, by saying the Anti-Injunction Act does not bar the lawsuit. The old Anti-Injunction Act bars any suit challenging the legitimacy of a tax before the tax is collected. The only remedy for an unconstitutional or otherwise illegal tax is to sue after its collection for a refund. Therefore, if the mandate is a tax, suit to prevent its enforcement would be barred by the AIA. The Court easily dismissed this argument:

The text of the pertinent statutes suggests otherwise. The Anti-Injunction Act applies to suits �for the purpose of restraining the assessment or collection of any tax.� �7421(a) (emphasis added). Congress, however, chose to describe the �[s]hared responsibility payment� imposed on those who forgo health insurance not as a �tax,� but as a �penalty.� ��5000A(b), (g)(2). There is no immediate reason to think that a statute applying to �any tax� would apply to a �penalty.�

Congress�s decision to label this exaction a �penalty� rather than a �tax� is significant because the Affordable Care Act describes many other exactions it creates as �taxes.� See Thomas More, 651 F. 3d, at 551. Where Congress uses certain language in one part of a statute and different language in another, it is generally presumed that Congress acts intentionally. See Russello v. United States, 464 U. S. 16, 23 (1983).

That seems entirely accurate to me. The main issue following that, then, is whether the mandate is a legitimate exercise of Congress�s power under the commerce clause of the Constitution. Roberts dealt with this issue with similar ease, finding that the mandate is an unprecedented and illegitimate expansion of those powers:

The individual mandate, however, does not regulate existing commercial activity. It instead compels individuals to become active in commerce by purchasing a product, on the ground that their failure to do so affects interstate commerce. Construing the Commerce Clause to permit Congress to regulate individuals precisely because they are doing nothing would open a new and potentially vast do�main to congressional authority.

Again, I agree with this 100%. Which should have been the end of the matter.

But wait, there�s more! Basic constitutional interpretation generally requires courts to resolve any ambiguities in favor of upholding a statute as constitutional. Roberts and the majority twists this judicial guideline into the power to effectively rewrite the law in order to make it constitutional:

The most straightforward reading of the mandate is that it commands individuals to purchase insurance. But, for the reasons explained above, the Commerce Clause does not give Congress that power. Under our precedent, it is therefore necessary to ask whether the Government�s alternative reading of the statute�that it only imposes a tax on those without insurance�is a reasonable one.

Roberts goes on to conclude that the individual mandate can be reasonably read to create a tax. And so therefore the mandate is a tax, not a penalty. �But,� I can hear you asking, �wouldn�t that mean the Anti-Injunction Act would apply to bar the suit?� No, silly, that only applies when Congress intends a tax, and since the Court created this tax out of thin air, the AIA wouldn�t apply.

Don�t think about it too hard.

The dissent is justifiably critical of this analysis:

The phrase �independently authorized� suggests the existence of a creature never hitherto seen in the United States Reports: A penalty for constitutional purposes that is also a tax for constitutional purposes. In all our cases the two are mutually exclusive. The provision challenged under the Constitution is either a penalty or else a tax. Of course in many cases what was a regulatory mandate enforced by a penalty could have been imposed as a tax upon permissible action; or what was imposed as a tax upon permissible action could have been a regulatory mandate enforced by a penalty.

[�]

In answering that question we must, if �fairly possible,� Crowell v. Benson, 285 U. S. 22, 62 (1932), construe the provision to be a tax rather than a mandate-with-penalty, since that would render it constitutional rather than unconstitutional. But we cannot rewrite the statute to be what it is not.

This goes beyond mere interpretation to judicial legislating, fixing Congress�s errors so it wouldn�t have to. Yes, Congress could constitutionally pass a tax on the uninsured. But the proper judicial remedy for its failure to do that is to strike the law down and let Congress pass a constitutional one.

Is today�s result the horrible, America-damning decision some conservatives are claiming it is? No. As far as I can tell, there would be exactly zero effective difference in applying the ACA if Congress had properly labeled the mandate as a tax (though of course that does not discredit any legitimate policy concerns with doing so at all). My only point is that if that�s what Congress wants to do, Congress has to actually do it. The Court should not step in and mangle the clear intent of the law (which the Court unhesitatingly accepted with regards to the AIA) in order to save Congress from its own politicking.