How to Respond to a Creationist’s Invitation to “Debate”

BlueOllie tips us off to a post by PZ Myers at Pharyngula about a dust up between Professor Nicholas Gotelli and the buffoons at the Discovery Institute.

The Discovery Institute’s David Klinghoffer, a winner of the lifetime asshat award wrote this letter to Professor Gotelli:

Dear Professor Gotelli,

I saw your op-ed in the Burlington Free Press and appreciated your support of free speech at UVM. In light of that, I wonder if you would be open to finding a way to provide a campus forum for a debate about evolutionary science and intelligent design. The Discovery Institute, where I work, has a local sponsor in Burlington who is enthusiastic to find a way to make this happen. But we need a partner on campus. If not the biology department, then perhaps you can suggest an alternative.

Ben Stein may not be the best person to single-handedly represent the ID side. As you’re aware, he’s known mainly as an entertainer. A more appropriate alternative or addition might be our senior fellows David Berlinski or Stephen Meyer, respectively a mathematician and a philosopher of science. I’ll copy links to their bios below. Wherever one comes down in the Darwin debate, I think we can all agree that it is healthy for students to be exposed to different views–in precisely the spirit of inviting controversial speakers to campus, as you write in your op-ed.

I’m hoping that you would be willing to give a critique of ID at such an event, and participate in the debate in whatever role you feel comfortable with.

A good scientific backdrop to the discussion might be Dr. Meyer’s book that comes out in June from HarperCollins, “Signature in the Cell: DNA and the Evidence for Intelligent Design.”

On the other hand, Dr. Belinski may be a good choice since he is a critic of both ID and Darwinian theory.

Would it be possible for us to talk more about this by phone sometime soon?

With best wishes,
David Klinghoffer
Discovery Institute

Gotelli’s response:

Dear Dr. Klinghoffer:

Thank you for this interesting and courteous invitation to set up a debate about evolution and creationism (which includes its more recent relabeling as “intelligent design”) with a speaker from the Discovery Institute. Your invitation is quite surprising, given the sneering coverage of my recent newspaper editorial that you yourself posted on the Discovery Institute’s website:

http://www.evolutionnews.org/2009/02/

However, this kind of two-faced dishonesty is what the scientific community has come to expect from the creationists.

Academic debate on controversial topics is fine, but those topics need to have a basis in reality. I would not invite a creationist to a debate on campus for the same reason that I would not invite an alchemist, a flat-earther, an astrologer, a psychic, or a Holocaust revisionist. These ideas have no scientific support, and that is why they have all been discarded by credible scholars. Creationism is in the same category.

Instead of spending time on public debates, why aren’t members of your institute publishing their ideas in prominent peer-reviewed journals such as Science, Nature, or the Proceedings of the National Academy of Sciences? If you want to be taken seriously by scientists and scholars, this is where you need to publish. Academic publishing is an intellectual free market, where ideas that have credible empirical support are carefully and thoroughly explored. Nothing could possibly be more exciting and electrifying to biology than scientific disproof of evolutionary theory or scientific proof of the existence of a god. That would be Nobel Prize winning work, and it would be eagerly published by any of the prominent mainstream journals.

“Conspiracy” is the predictable response by Ben Stein and the frustrated creationists. But conspiracy theories are a joke, because science places a high premium on intellectual honesty and on new empirical studies that overturn previously established principles. Creationism doesn’t live up to these standards, so its proponents are relegated to the sidelines, publishing in books, blogs, websites, and obscure journals that don’t maintain scientific standards.

Finally, isn’t it sort of pathetic that your large, well-funded institute must scrape around, panhandling for a seminar invitation at a little university in northern New England? Practicing scientists receive frequent invitations to speak in science departments around the world, often on controversial and novel topics. If creationists actually published some legitimate science, they would receive such invitations as well.

So, I hope you understand why I am declining your offer. I will wait patiently to read about the work of creationists in the pages of Nature and Science. But until it appears there, it isn’t science and doesn’t merit an invitation.

In closing, I do want to thank you sincerely for this invitation and for your posting on the Discovery Institute Website. As an evolutionary biologist, I can’t tell you what a badge of honor this is. My colleagues will be envious.

Sincerely yours,

Nick Gotelli

P.S. I hope you will forgive me if I do not respond to any further e-mails from you or from the Discovery Institute. This has been entertaining, but it interferes with my research and teaching.

And the Most Perverted State is…. UTAH!

Oh Utah, thou dost protest too much. It seems that the states where everyone is god fearin’ and porn hatin’ also happen to be the states where the most internet porn subscribers happen to live. See Benjamin Edelman. “Red Light States: Who Buys Online Adult Entertainment?” Journal of Economic Perspectives 23, no. 1 (Winter 2009): 209-230 (PDF here).

Edelman took a look at sales and subscription figures for a number of adult entertainment websites, and he found some of the funniest data I’ve seen in a while. It seems that a more conservative public position on religion, gender, and sexuality translates into higher rates of internet porn memberships. Go figure.

In states where more people agree that “Even today miracles are performed by the power of God” and “I never doubt the existence of God,” there are more subscriptions. In states where more than half of the population proclaims “I have old-fashioned values about family and marriage,” subscription rates are elevated. The same goes for states where Republican education efforts have convinced a majority of the population that “AIDS might be God’s punishment for immoral sexual behaviour.” Source at 219.

Click to expand

Oregon’s Constitution is so protective of free speech, that porn prosecutions there are about as rare as intelligent speeches on technology given by Ted Stevens. On the other hand, the mother-lands of censorship, Utah and Mississippi… why you dirty peckerwoods. All the time you’re trying to censor the internet and anything else you can get your hands on, you’re filling the porn industry’s coffers with your subscription fees!

Although neither Red nor Blue states have a monopoly on porn subscriptions, there is a divide when it comes to conservative vs. liberal porn tastes. In Blue states, the most popular porn sites are adult escort sites. Red states that voted for Bush in 2004 prefer wife-swapping sites, adult webcams, and sites about voyeurism. (Source at 219)

The Dumbest Move Since Drafting Ken Sims

If they're going to act like the old Patriots, they should at least bring back the way cooler old logo

The Patriots are back!

I mean the OLD Patriots. The New England Patriots I grew up with. You may remember them — talent-laden teams that chalked up miserable season after miserable season because of abjectly stupid ownership and management. Remember the name “Ken Sims?” No, not unless you’re a long-suffering Pats fan you don’t. After the Patriots went 2-14 and lost the “stuporbowl” to the Baltimore Colts, they had the first pick in the 1982 draft. As Marcus Allen sat waiting for his number to be called, the Patriots selected some nobody named Ken Sims, who managed to play a full 16 games in a single season only once in his career. In his 74 career games in 8 seasons, he made 17 sacks.

Why draft Marcus Allen when you can have THIS?

In other words, they would have been better off drafting a case of beer. In fact, during the strike-shortened 1982 season, Mark Henderson had a greater impact on the Pats 5-4 regular season record. (Henderson drove the snow plow during the December 12, 1982 game against the Miami Dolphins). Henderson was a convict on a work-release program. When a guy who is out of jail for a day driving a snow plow has a bigger impact on your season than your first round pick, you know that you don’t know shit about managing a football team.

You might be a Pats fan if you realize that a convict is worth more than a first round pick

In all fairness to the Pats, Marcus Allen did sit on the block until the Raiders picked him up as the tenth overall pick. I was friggin’ 12 years old and I knew he would be in the Hall of Fame one day. Guess what? He is. Ken Sims highlight reel includes getting more out of shape than I am, being arrested for cocaine possession, and now holding some season tickets to the Texas Longhorns games.

Why all this history? Because for the first time since 1982, I am absolutely, positively, convinced that there is a meteor buried beneath Foxboro, Massachusetts that makes the Patriots front office behave like goddamned idiots. Maybe Scott Pioli had a way to keep it at bay, but now that he is coincidentally also in Kansas City, let the dipshit gas flow forth so many farts from the asses of the angels of moronhood that watch over Flori-duh.

The Patriots just traded Matt Cassel AND Mike Vrabel to the Kansas City Chiefs for their second round draft pick.

Ah, damn you! God damn you all to hell!

I could tear my freakin’ hair out (what’s left of it). I want to wake up in a hospital, with bright lights and strange faces around me. I want one of them to remove a face mask and ask me “Marc, do you know what year it is?” I want the answer to be 2015 or something like that… and in the years I was in a coma, Tom Brady was traded to the Chiefs, he retired and just decided to bang supermodels for a living. In the meantime, Matt Cassel led the Pats to another three Superbowl titles. I wish I had a remote control like in “Click.” I don’t care if I fast forward through my life.

I just can’t believe it. I’d rather that monkeys take over the freakin’ planet. Mark my words, this is the start of a dark period for Patriots nation.

Bikinis and All Those Nuts and Bolts

Tatiana Von Tauber

By Tatiana von Tauber

Ever wonder what a plumber is thinking about when beneath a woman’s sink?  Put her in a bikini and I bet he’ll be thinking of how to loosen the pipes with a whole lot of pep in his step…

New research shows that, in men, the brain areas associated with handling tools and the intention to perform actions light up when viewing images of women in bikinis. (source)

Now that we can peer into the brain and map the privacy of thoughts, take a guess at how many males are going to go to the doghouse for that brilliant info!

Just what kind of tools and intentions are we talking about here however?  Well men do have an intimate relationship with their penis.  Besides it having a name, it’s fondled, stroked, played with, twirled and tucked.  I won’t go further.  Of course this new research is no surprise but how spooky is it that now science can back up the fact that men think with their dicks? 

I’m sorry.  Were the tools more like hammer and screwdriver where subconsciously a male thinks of ways to build a fertile bikini clad woman a house made out of coconuts because he intends to procreate and stick around to care for the kids? Leave it to evolution to muster up the grand illusion necessary for species survival:  sexual pleasure in exchange for procreation.   And thus, we have the battle of the sexes.

I like Mother Nature’s insistence and demand that sexuality is a must-be-so-get-the-fuck-over-it aspect of life. That be the case, and it’s looking mighty strong that sex is here to stay: Celebrate. Bikinis invite celebration of the female body, assuming the body in it causes the handyman’s brain areas to shine. To me it’s a sign of a healthy man and woman, both still interested enough to look, to have fun with what usually is only momentary fantasy.  What causes the deep-seated insecurity that gives rise to the sick and twisted thought process shared by the Taliban, sex-negative Christians, and sex-negative second-wave feminists — this theory that such momentary fantasy is somehow “harmful?”

Women go out of their way to be more beautiful, thinner, more sexually pleasing yes, to their preferred mating targets, but also to themselves. Boob jobs, liposuction,  Botox, make-up, Brazilian wax, lingerie, high heels, garters, and so on.  Women seek attention from men and men respond.  How far women allow men to go in response is the debatable factor between how men and women treat each other. 

Wearing bikinis is a conscious or unconscious call for attention to our bodies and sexuality.  It’s as skimpy as women are allowed to go while being publically acknowledged as moral, decent and accepted — or at least while being left alone by the police. French fashion historian Olivier Saillard argued  “the power of women, and not the power of fashion” and “the emancipation of swimwear has always been linked to the emancipation of women”. Bikinis are the look at me peacock tails,  ”a mating call”, if you will and they’ll always be in fashion.

The next time you see a second-waver sneering at the thought of a man ogling a scantily clad woman, consider that the man has a biological and evolutionary reason for doing so. In fact, mere ogling is worthy of respect when one considers the physiological and evolutionary forces taking hold of the poor guy’s instincts. And the visual display from the female ignites the instincts in the male, and like so many birds we engage in our complex mating dance of lust, attraction, and love.

Since most countries do not allow women to be on a public beach naked, thus displaying all they may have to biologically offer, the bikini it is.  Swimming with clothes on is less preferable.  But what of my own evolutionary instincts? When I go to the beach,  no way in hell do I check out hot guys without a shirt on.  I wouldn’t want to place myself in a similar category as men place themselves.  Imagine a woman sexually objectifying a man? Horrid, I say.  Absolutely horrid. 

Something to make you smile at the end of a long week

natalia-on-dads-desk

►

My wife took her to Buffalo to visit her grandparents. So, I’ve been watching this on continuous loop for about three hours.

Has the Sixth Circuit Declared Jihad on the First Amendment?

by Jason Fischer

Twice in two weeks, the Sixth Circuit has handed down decisions that are targeted at burdening the adult entertainment industry. As we pointed out in an earlier post and as Professor Salkin explains, the Sixth upheld a questionable Tennessee regulation that creates special licensing requirements for “sexually-oriented businesses.” They also did a number on their previous ruling concerning Section 2257.

If you are an avid reader of the Legal Satyricon, then you are familiar with the infamous little piece of federal legislation which can be found at Title 18, Section 2257 of the United States Code. If not, you can find a little light reading on the subject here and here.

Section 2257 lays out the record-keeping requirements that any producer of sexually explicit images or video must follow, in order to verify that none of the participants is underage. Sounds reasonable, right? Gotta make sure that no one is making child pornography, right? Fair enough, but that isn’t what this particular piece of legislation is doing. It’s suppressing other forms of expression that have nothing to do with underage performers.

As written, Section 2257 requires anyone, who takes dirty pictures or films a naughty movie, must keep special records that show the identity and age of all participants. “Anyone” includes you and your spouse – no matter how old you both are, even if you never plan on showing your kink materials to anyone else. Section 2257 also requires that you and your spouse attach a notice to all of your dirty pictures and naughty movies, which indicates where those records can be found. If a member of the law enforcement community comes to that place, where those records are to be kept, the records must be provided upon request – no warrant required. Failure to do any of the foregoing will result in criminal liability.

It doesn’t take a hard-core civil libertarian to see the issues with a statute that makes punishable, by up to five years in federal prison, constitutionally protected conduct which was perfectly legal before the statute was enacted.

Recognizing these problems with the law, Connection Distributing Co., a publisher of a swingers’ magazines, filed an action in federal court, seeking to invalidate the statute. Late in 2007, after fighting the legal battle for more than ten years, Connection received a victory when the Sixth Circuit Court of Appeals ruled that Section 2257 was unconstitutional. For an in-depth discussion of that ruling, along with plenty of analysis of the First Amendment problems with the law, you can read up on it here.

This would have been the end of the matter, except that the powers that be determined that the issue was too important to be decided by a three-judge panel. As a result, the case was reviewed by seventeen judges, sitting en banc, and that panel decided to reverse the original holding. The court’s full opinion can be found here, but below are the high points:

Our government cannot enact laws that regulate speech based on its content – that would be censorship. Connection argued that Section 2257 was content-based regulation, which violates the First Amendment, because it only applies to certain kinds of images. In simple terms, Section 2257 burdens pictures that would be found in a photo-illustrated Karma Sutra, but not those found in a coffee table book about kittens. However, according to the court, it’s okay to ban speech, as long as the motives for doing so are not based on the content. The court reasons that “[s]o long . . . as the law addresses the collateral or ‘secondary effects’ of the expression, not the effect the expression itself will have on others, it will be treated as content neutral.”

“[T]he law [does not] implicate the central risk of a content-based regulation of speech: that the government has impermissibly interfered with the free exchange of ideas by imposing trade barriers on certain viewpoints but not on others. . . . No doubt, § 2257 favors a particular viewpoint on this issue: Congress is against child pornography and is using this law to prevent it. Although that kind of viewpoint discrimination normally would be fatal to a law, that is not true here because the Constitution allows the government to embrace this viewpoint and to act on it by imposing a complete trade barrier on the production and trafficking of this kind of speech. . . . What we have, then, is a valid speech-related end—eliminating child pornography—followed by a means of achieving that end, a proof-of-age requirement that refers to the content of the speech (specifically defined images) not because of its effect on the audience but because it is the kind of speech that implicates the government’s ban on child pornography. That kind of sensible reference to the content of speech—how else would the government impose a proof-of-age requirement designed to address child pornography?—does not rise to the level of a presumptively impermissible content-based regulation of speech.”

Judge Sutton, who authored the majority opinion, seems to ignore the fact that Congress has already imposed a “complete trade barrier” around child pornography. It has enacted laws that make the production of child pornography illegal. See 18 U.S.C. § 2251 (2006). There are also laws that make transportation, shipping, receiving, and distribution of child pornography illegal. See id. § 2252. In contrast to 2257, these provisions are narrowly tailored to target the specific, permissible goal of Congress that Sutton describes. Shouldn’t they be enough?

Six of the seventeen judges seemed to think so. In four separate dissenting opinions, those judges expressed concern about the application of Section 2257 to private couples, engaged in First Amendment protected conduct while in the privacy of their own homes. Judge Kennedy was not comforted by the assertions, made by the Attorney General, that those couples would not be prosecuted.

“Because federal criminal statutes outlast Attorneys General, the reach of the statute’s text, not a promise from law enforcement nor a recently enacted regulation, is the proper focus of our inquiry.”

Central to the dispute between the majority and the dissenters was the question of how many people, who are engaged in normally lawful activities, would be caught up in the “sweep” of Section 2257. How many is too many? How many is enough to call the statute “overbroad”?

“The majority states that the question of substantiality is: When ‘is it appropriate to invalidate a law in all of its applications when its invalidity can be shown (or assumed) in just some of its applications?’ . . . That could very well be framed as: ‘When is it appropriate to adjudicate unconstitutional applications of a statute on a case-by-case basis versus invalidating a law in its entirety because of some unconstitutional applications?’ The second formulation not only brings to life a central concern that runs throughout overbreadth–namely that unconstitutional applications otherwise may never make it before the court because speakers refrain from speaking, injuring speech and leaving few left to challenge the unconstitutional law–it also presents for consideration the burden–as it pertains to the substantiality of overbreadth–on a private couple in challenging the law as-applied.”

Another constitutional issue, which was raised by some of Connection’s subscribers, was based in the Fifth Amendment’s protection from self-incrimination. Everyone has the right to “remain silent” when they are the subject of a criminal investigation. The problem here is that the regulations surrounding Section 2257 allow law enforcement to use the records, provided in compliance with that statute, as evidence in other matters that are unrelated to the content for which the records were created. The majority refrained from ruling on this particular challenge, claiming that the issue was not ripe for review.

In his dissenting opinion, Judge Clay describes the danger of leaving the law intact:

“[T]he statute itself no longer begins and ends with the record-keeping requirement; because of the 2003 amendment, it now includes the threat of criminal prosecution for child pornography, sexual exploitation of children, and obscenity, based on information in the records required by the statute. . . . Because the statute now explicitly authorizes the government to use the identifying information for the purpose of prosecuting other crimes, the fear of Connection’s law-abiding advertisers that they may one day be subject to criminal investigation or prosecution is not unreasonable. To minimize this concern by stating that adult swingers who follow the law have nothing to fear ignores the reality that law-abiding people unfortunately can mistakenly become the targets of criminal prosecutions, with all of the accompanying burdens.”

One has to wonder if the judges that voted to uphold 2257 are allowing their own personal morality to motivate their decision. Should that kind of results-oriented jurisprudence really be allowed? This observer thinks not. Morality and legality are not the same thing. Isn’t preventing this kind of situation precisely the reason why the First Amendment is part of our Constitution? What say you?

The government has speech rights too.

What? You don't want *this* guy's monument in your park?

by Jason Fischer

The United States Supreme Court this week announced that a city’s government has a right to decide which donated monuments to display on municipal property (source). Justice Alito, writing for a unanimous Court, said that placement of a permanent marker on public grounds represents a type of government speech. As such, the government gets to pick the message.

The dispute began when a member of the Summum religion (which adopts Egyptian customs, such as mummification, with elements of Gnostic Christianity that teach spiritual knowledge is experiential) proposed that a monument to their “Seven Aphorisms” should be placed alongside an existing “Ten Commandments” monument. The city declined to accept the “donation,” and the “donor” sued, asserting a violation of their free speech rights. The Tenth Circuit agreed, and the dispute made it all the way to the High Court.

The Supreme Court rejected the lower court’s reasoning, which asserted that placing a monument in a public park was analogous to making a speech in an open forum. Alito states that the display of a permanent monument is not the same as a transitory expressive act, such as giving a speech or staging a protest.

He went on to explain what might happen if municipalities were forced to put up every proposed statue, in the name of “equal” treatment:

“Every jurisdiction that has accepted a donated war memorial may be asked to provide equal treatment for a donated monument questioning the cause for which the veterans fought. New York City, having accepted a donated statue of one heroic dog (Balto, the sled dog who brought medicine to Nome, Alaska, during a diphtheria epidemic) may be pressed to accept monuments for other dogs who are claimed to be equally worthy of commemoration.”

You can find the full text of the opinion here.

“Hot News” Decision

The purpose of copyright is to “promote progress.” We achieve this promotion by giving authors a limited monopoly over their works, but we don’t give copyright protection to mere facts. It makes sense, since the facts rightfully belong to all of us.

Nevertheless, we do all benefit from news organizations hard work in bringing us the facts. If anyone can just free ride off of the Associated Press’ work, then eventually they are going to stop providing them to us. After all, the AP is a business.

I read an excellent law review article on this subject a while back. See Ryan T. Holte, Restricting Fair Use to Save the News: A Proposed Change in Copyright Law to Bring More Profit to News Reporting. Suffice to say that I get Holte’s point, and I agree with the argument that the public is better served if there are news organizations competing to get the hottest news — and they should be incentivized to do so.

It looks like Holte’s theory gained a little traction this week. The Prior Art reports on Associated Press v. All Headline News Corp and the Southern District of New York’s finding that the AP might have a viable case for “hot news appropriation if:”

(i) a plaintiff generates or gathers information at a cost;

(ii) the information is time-sensitive;

(iii) a defendant’s use of the information constitutes free riding on the plaintiff’s efforts;

(iv) the defendant is in direct competition with a product or service offered by the plaintiffs;

(v) the ability of other parties to free-ride on the efforts of the plaintiff or others would so reduce the incentive to produce the product or service that its existence or quality would be substantially threatened. (Source)

Goldman analyzes the case here.

Sixth Circuit Upholds Adult Entertainment Regulation

Hot on the heels of its recent mental goatse to preserve Section 2257, the Sixth Circuit does it again with an adult entertainment ordinance challenge. I would write about it, but why duplicate Professor Salkin’s excellent effort?

Welcome to the Roll

Look what Zac 'found'

I would like to welcome some new authors to the SatyriconRoll.

1. Patricia E. Salkin and her Law of the Land Blawg.
2. Johnny Peepers and his Dillsnap Cogitations
3. Eric Goldman and his Tech and Marketing Blog
4. Venkat Balasubramani and his Spam Notes

As usual, these additions have been a long time coming.

Patricia E. Salkin, Esq. is the Raymond and Ella Smith Distinguished Professor of Law, Associate Dean and Director of the Government Law Center of Albany Law School. Wow, pretty impressive, huh? Well, those titles aren’t half as impressive as her blawg, which seems to be the only one out there dealing specifically with land use and zoning issues. So why does that interest me, you ask? She follows and analyzes adult entertainment zoning decisions with enough skill that I have added her Adult Entertainment RSS feed to my already overstuffed inbox.

The pseudonymous Peepers has been a favorite of mine for years. Peepers describes himself as “a socio-pathetic degenerate with a penchant for cheap booze, ruphy-laden broads, and dim sum soup.” His writing and subjects aren’t for everyone — but they are definitely for me. Dillsnap Cogitations is for you too if you liked Taxi Driver.

When I’m working on a tech law issue, I’ll usually check Goldman before logging in to Lexis. This blawg clearly falls into the “useful” category. He religiously follows court decisions on tech matters and seems to never sleep. If I were an aspiring law student, I would seriously think about attending Santa Clara just to take classes from this dude.

Venkat Balasubramani is a relatively new addition to the blawgosphere, but has already made a splash. He writes on Electronic Communications, Privacy, ID Theft, Data Protection, Adware, Spyware, and More. The “more” is often as fascinating as his areas of expertise. Best of all, Venkat’s blawger etiquette is outstanding. Spam Notes is the kind of spam you actually want to read.

When announcing new additions to the Roll, I like to also share my methodology:

Dispatches and Link Snatches

Zac's Blog Loot!

Editorial and Comment by Zac “Tzantziki” Papantoniou and Marc J. Randazza (the “J” is for “Jefe de Los Satyriconistas”)

Breaking News: Legal Satyricon Award for “Ass-Hat of the Week” Has Been Amended to Include . . .

. . . Lucie J. Kim! Thanks go to Seth, over at QuizLaw, for alerting us to Ms. Kim’s grandiose display of ass-hattery, due solely for the filing of one of the most ridiculous lawsuits since . . . this one. How ridiculous of a suit did Ms. Kim file, you ask? Well, she filed a class action lawsuit against Miley Cyrus (another ass-hat), claiming that Cyrus mocked Asians in a recent photo by slanting her [Cyrus’s] eyes; for this, Kim is seeking $4 billion in damages.

'Yay! I hit the racism jackpot!' - Lucie Kim.

Ms. Kim has way too much time on her hands, and not enough common sense to realize how much of an ass she is making of herself. For her efforts in furthering legal-idiocy, Lucie J. Kim is a Legal Satyricon “Co-Ass-Hat of the Week.” She can pick up her award, a free lesson on “How Not to Disgrace the First Amendment” at any time, all she has to do is send in an email and claim her prize.

The award includes all she can drink

The Blind Squirrel Award Goes To….

Ken at Popehat has some unlikely props for the Beckettistas. It looks like they are sticking up for Atheists for once.

Epic Lulz: Asinine Video Game Law Pwned By the 9th Circuit

Somewhere, Jack Thompson is crying . . .

Ya, ve shouldn't have kids playing violent video games. Now vere ist my check for za last Terminator movie royalties?

Being that our very own Satyriconista, Christopher Harbin, is working on a detailed post on the matter, we pick up some appetizers from the First Amendment’s uber pwnage of a California violent video game law from Norm Kent and Jon Katz. The law attempted to mandate an additional labeling requirement on “violent” video games, along with, making the act of selling or renting the aforementioned “violent” games to minors, illegal. The idiotic law was struck down by the 9th Circuit U.S. Court of Appeals for being (drum roll please) . . . unconstitutional!

When will lawmakers learn that just because “they” don’t like something, it doesn’t give them (or anyone else for that matter) the right/ability to piss all over the freedoms and rights guaranteed to us by the Constitution?! Thankfully until “they” do learn, the First Amendment will be there, waiting in the wings like a diligent hero, standing strong in stark contrast to the knee-jerk idiocy of the common government lawmaker . . . hip, hip, hooray!

Maintaining Your Health During the Battle of a Trial

Props to Jon Katz, at “The Underdog Blog,” who always gives us the angles that nobody else thinks of. This week, Jon tells us how attorneys can better maintain their physical and mental health during the battle royale, better known as a legal trial.

Many attorneys, both newly sworn in and those who’ve been around the block a few times, underestimate the rigorous toll a trial can take on ones physical and mental well-being. Jon shares some personal tips on how to maintain a “trial ready” body and mind, in his post, “How to stay healthy during trial battle?”

Recent Poll Shows That President Obama Is Capable of Defeating Terrorism and . . .

. . . Jesus? That’s right! HT to Johnny Peepers, at the blog, “Dillsnap Cogitations” for filling us in on a recent Harris Interactive Poll pitting the two men, whose middle names both coincidentally start with the letter “H”, in a battle for America’s #1 Hero; and President Obama emerged on top of Christianity’s lord and savior!

For more on the story, check out Johnny P’s post, President Obama Defeats Jesus as America’s #1 Hero.

Was This Sherriff’s Department Investigation Really Worth Taxpayer Dollars?

Mark Draughn, at “Windy Pundit,” rightfully calls attention to a ridiculous South Carolina Sherriff’s investigation into Michael Phelps’ alleged pot smoking incident. Thankfully, Richland County Sheriff Leon Lott has stated that he is not going to charge swimmer Michael Phelps (with what, I have no freaking clue) after a photo of the 14-time gold medalist showed him smoking from a “marijuana pipe”. Good, now the Richland County Sherriff’s Department can work on solving real crimes, rather than investigating photographs of someone allegedly smoking something from an alleged

Well, except for Kellogg's

“marijuana pipe” (i.e. a device commonly referred to on “the streets” as a “bong” . . . I mean, really, a “marijuana pipe?” That’s just being a little “loose” on the description of such an accoutrement; everyone knows that stoners can go all “MacGyver” on any old thing lying around their bean-bag chairs, and fashion a “marijuana pipe” in 2 min. flat out of a couple of “Lincoln Logs”, 7 inches of yarn, an eye-dropper and an empty 2 liter bottle of cola).

In related news: No Kellogg’s Munchies

Speaking of Michael Phelps. Phelps picked up a bong, so Kelloggs dropped him. NORML ups the ante by telling its members to…. umm…. oh, yeah, don’t chow down on Kellogg’s products when you’ve got the munchies and you’re watching Super Troopers for the 85th time. For some reason, I don’t think this is going to have much of an effect. When you’ve watched someone with mega munchies eat chipotle peppers covered in peanut butter, you realize that a man with the munchies isn’t about to put down the Corn Flakes over some dude who swims for a living.

Top Ten Reasons to Restrict Minors’ Access to Library Books About Sex

Our special guest, Dr. Marty Klein is the author of the book, America's War on Sex and the blog Sexual Intelligence. Click his face to see his amazing blog.

By Marty Klein, Ph.D
Special Guest to the Legal Satyricon

The Topeka and Shawnee County (Kansas) Public Library’s Board of Trustees voted last week to restrict minors’ access to four books: “Sex for Busy People,” “The Lesbian Kama Sutra,” “The Joy of Sex” and “The Joy of Gay Sex.” They deemed the material “harmful to minors.”

Here are ten reasons to support this ban:

10. Most minors have never heard of sex, and these books would confuse them.

9. The books would encourage minors to have intercourse, increasing demand for condoms and therefore the price—oh wait, Kansas kids are told condoms don’t work. Never mind.

8. If minors want to look at sexy books and pictures, they should just go to their parents’ night-table.

7. One local pastor testifying for the ban objected to “exposing our youngsters to this”–and then read explicit lines from a book not being challenged. Using this logic, Kansas book-banners are like Iranian book-banners.

6. Book banning is better than book burning, because book burning causes air pollution.

5. Only kids who can’t use computers read books. Kids should learn to use the internet, which has plenty of information about sex, all of it completely reliable.

4. TV viewing is declining, hurting advertising and therefore the economy. If kids want information about sex, they can look at music videos. This will also increase their vocabulary.

3. Better yet, minors can go to the Parents Television Council website for video clips of the sexiest shows of the week, here and here.

2. Kansas kids can learn about sex furtively, like their parents did–after all, the lack of intelligent sex education never hurt them. That’s why the state Attorney General tried to close Planned Parenthood last year, a state senator tried to shut down the highly-respected University of Kansas sexuality course, and Shirley Phelps of the local Westboro Baptist Church has demonostrated at over 100 military funerals about God hating America’s “tolerance” of homosexuality.

And the #1 reason to support restricting minors’ access to these library books…

1. If we want our kids to read stories about sex, we’ll give them the Bible.

Where book learnin' ain't nothin' but a lib'rul theory!

“Hooters Culture” Causes Stir in Delaware

This just in from the asshat patrol:

Neighbors of a new Hooters restaurant near Newark are fighting to keep it from getting a liquor license, saying the eatery poses the potential for risqué activities that do not jibe with the surrounding community.

“People were concerned about Bikers Night and Lingerie Night and other things associated with the Hooters culture,” state Sen. Karen Peterson, D-Stanton, said of the neighbors near the Astro Shopping Center on Kirkwood Highway, (source)

“Hooters culture.” You have a problem with Hooters culture? First off, you just declared war on Flori-duh. Second, you live in DELAWARE.

Pennsylvania Says No to Hell

Apparently that Highway doesn't run through Pennsylvania

George Kalman, a Pennsylvania filmmaker and the owner of “I choose hell productions” filed suit against the state for rejecting his chosen business name. Apparently Pennsylvania law prohibits business names that “constitute blasphemy, profane cursing or swearing or that profane the Lord’s name.”

I guess Obama was right about those bitter Pennsyltuckians who cling to their guns and religion. They might want to take a look at the First Amendment there in Harrisburg. They are about to get their asses handed to them.

Of course, the USPTO still clings steadfastly to the rule that “immoral and scandalous” trademarks can’t be registered.

I may write more about this if the Eastern District of Pennsylvania’s PACER system ever comes back online. If anyone out there finds a copy of the complaint, I’d love to see it.

Short Url: http://bit.ly/NNAFv

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Technorati :  First Amendment, church and state

First Circuit Turns Libel Law on its Head

John Peter Zenger's trial set the cornerstone for freedom of the press - and Alan Noonan's cracked it.

Introduction

In Noonan v. Staples, in an opinion written by Judge Juan Torruella, the First Circuit Court of Appeals held that a defamation suit based on indisputably true statements could go forward and the plaintiff could prevail, if it was found that the statements were published maliciously. If this case stands, it could wind up making Massachusetts the least speech protective jurisdiction in the United States.

So much for the spirit of Lexington and Concord.

The Trial of John Peter Zenger: A Jury Votes its Conscience, and Lays the Cornerstone for Free Speech

Hop in, we're going to 1735

To really understand what a disaster Torruella may have wrought, you will need to take a trip with me back to New York City in the year 1735. The Governor is Sir William Cosby, and he is both provably corrupt and arguably tyrannical. John Peter Zenger is the publisher of the only independent newspaper in the City, the New York Weekly Journal. (Governor Cosby owns the other paper).

Zenger publishes a series of articles exposing Governor Cosby’s corruption. The articles are indisputably true, and Crosby doesn’t deny their veracity. Nevertheless, neither English nor Colonial law recognized truth as a defense to the charge of “seditious libel,” so Crosby had Zenger charged with this crime.

A copy of Zenger's New York Weekly Journal

Seditious libel had three elements: “first, that the content of the writing was defamatory [of the government or its officials]; second, that the defendant had published the writing or had made it with the intention of publishing it; and third, that he had acted with a knowing and malicious state of mind.”
Susan W. Brenner, Complicit Publication, 13 Alb. L.J. Sci. & Tech. 273, 291 (2003)

It was entirely irrelevant to the defense to say that the words were true. On the contrary, true words that tended to call the plaintiff into disrepute were more likely to harm the plaintiff’s reputation. Accordingly, under colonial law at the time, defamation was a strict liability crime. With this field before him, Zenger stood accused of publishing articles critical of the governor. These articles would infect the readers and “inflam[e] their minds with contempt of His Majesty’s government, and greatly disturbing the peace thereof.”

Zenger’s attorney, Andrew Hamilton, was outraged at the notion that a man could be punished for speaking the truth. He argued to the jury that it should refuse to convict Zenger if it found that his statements were true. The jury agreed and acquitted Zenger.

Little did Zenger, Hamilton, or the jurors know that they had just dragged a piece of legal stone from its quarry, molded it just right, and laid it as the cornerstone of freedom of speech in the yet-to-be-born United States. Ever since, American defamation law has been ruled by the maxim “the truth shall set you free.”

Not anymore. Well, at least not in Massachusetts anymore.

Noonan v. Staples – The First Circuit Sends Massachusetts Back to 1734 via 1902

Alan Noonan learned that padding expense reports wasn't so easy - but the First Amendment suffered

Get back in the Tardis and come back to the present day. Enter Alan Noonan, a Staples, Co. sales director. Mr. Noonan was terminated for violating Staples travel expense policies by padding his expense reports. Staples’ executive vice president, Jay Baitler, apparently wanted to make an example of Noonan, so he sent an email to all employees informing them Noonan’s termination and the reason why. Noonan filed suit against Staples for inter alia libel based on the email.

In order to break a crack in the Zenger cornerstone, Judge Torruella busted out a 1902 Massachusetts law: Mass. Gen. Laws ch. 231, § 92, says that truth is a defense to libel “unless actual malice is proved.”

“Actual malice” means something very specific to First Amendment attorneys. The terms comes to us from New York Times v. Sullivan, 376 U.S. 254 (1964), a case in which the Supreme Court held that even false statements about public officials were protected by the First Amendment unless they were made with “actual malice” — meaning with knowing falsity or a reckless disregard for the truth. The rationale given by Justice Brennan:

There is “a profound national commitment to the principle that debate on public issues should be uninhibited, robust, and wide-open, and that it may well include vehement, caustic, and sometimes unpleasantly sharp attacks on government and public officials.”

However, Torruella’s opinion decided that since Mass. Gen. Laws ch. 231, § 92 was written in 1902, then the term “actual malice” should be given the meaning it had in 1902. By this logic, I suppose that any time an African-American tries to insist that a law applies to them as a “person,” they had better check the date the law was enacted.

In 1902 “actual malice” meant “common-law malice.” And, to support for this interpretation of the law, Torruella relied upon a Massachusetts trial court decision, Shaari v. Harvard Student Agencies, Inc., No. CA 907810D, 1996 WL 1186873, at *9 (Mass. Super. Ct. July 19, 1996) (“To establish ‘actual malice,’ as that term is used in § 92, plaintiff need only prove ‘disinterested malevolence’ rather than ‘knowing falsity’ or ‘reckless disregard for the truth on the part of the defendants.’”). On appeal in that case, the Mass. Supreme Court overturned the trial court decision on other grounds, and said that on matters of public concern, defamation defendants clearly could not be held liable without a finding of actual malice, as defined by New York Times v. Sullivan. See Shaari v. Harvard Student Agencies, 427 Mass. 129 (Mass. 1998). However, Shaari didn’t say anything about matters that were not necessarily of public concern.

“To apply this statute to the defendants’ truthful defamatory statement concerning a matter of public concern, even if the statement is malicious, violates the First Amendment.”

Torruella then decided to take the absence of a specific statement in Shaari about speech that might not be on a matter of public concern and he turned it into a per se rule that private citizens could sue for defamation even when the alleged defamation was truthful. Of course, perhaps that is what the 1902 Massachusetts law says, but federal judges are supposed to also take this little thing called “The First Amendment” into account. I guess Torruella didn’t get the memo on that one. He declined to consider the Constitution when writing his opinion, because the matter hadn’t been briefed properly. I wonder if he has ever read the case Bose Corp. v. Consumers Union of United States, Inc., 466 U.S. 485, 499 (1984) (”[I]n cases raising First Amendment issues . . . an appellate court has an obligation to ‘make an independent examination of the whole record’ in order to make sure that ‘the judgment does not constitute a forbidden intrusion on the field of free expression.’” (quoting New York Times Co. v. Sullivan, 376 U.S. 254, 285 (1964)).

Is the Sky Really Falling?

Maybe. Maybe not.

It is always a cause for concern when a Court of Appeals issues a ruling that is both seemingly brain-dead and which rolls back long-standing Constitutional principles. Well, with the glut of Reagan/Bush/Bush appointees on the federal courts, that’s pretty much what you expect when you go to federal court these days.

Judge Juan Torruella - Just what WAS he thinking?

Sadly, Torruella first created this boondoggle last August in Noonan v. Staples, Inc., 539 F.3d 1 (1st Cir. 2008). In that case, Torruella made the same horrendous finding with respect to truth no longer being a defense to a defamation action, but he ruled against Noonan anyhow — so apparently the case didn’t get much press. Accordingly, shame on me and the rest of the media for not raising hell back then. Now that his panel issued a corrected decision, we’re stuck with it until the First Circuit hears the case en banc or the case goes to the U.S. Supreme Court.

The case doesn’t roll back New York Times v. Sullivan, and Zenger wasn’t publishing letters critical of his ex-employees. Nevertheless, for the first time in recent history, a U.S. court has held that the truth is not a defense to a defamation action. That should scare the living shit out of anyone in Massachusetts who writes a letter, email, blog, or any other written communication that might piss someone else off. Under New York Times v. Sullivan, you can still write anything you want about a public figure, and we absolutely need that right in a democracy. However, when citizens must fear speaking the truth in the state where the Revolution began, then I fear that the Revolution is finally over.

Bob Ambrogi says it well:

“You need not be superstitious to appreciate the import of this Friday the 13th ruling,” Ambrogi said. “It is the most dangerous libel decision in decades. The decision puts a crack in the bedrock that threatens to undermine free speech.”

Other Commentary on this Case

I am really late to the party on this one. Some of my brothers in the legal blawgosphere have already raised the alarm.

1. Robert Ambrogi is really alarmed in “Think You Know Libel Law? Think Again.“
2. Sam Bayard is perturbed in “First Circuit Upends Accepted Understanding of Truth Defense in Defamation Cases“.
3. The ABA reports on Ambrogi’s post.
4. Gordon Firemark flames the decision in Alarming defamation ruling: Truth is NOT always a defense
5. Dan Kennedy at the New England First Amendment Center calls it “A chilling decision about libel” and gives a shout-out to my man Zenger.

Lets just say that the only person happy about this decision is Alan Noonan — and he is now both a public figure and the ass-hat of the week. Before he filed this case, 1500 people knew that he padded his expense reports — now the whole world knows. Smooth move, ex-lax. It drives me nuts that one asshole pads his expense reports and then gets all crybaby about it when he is used as an example to other employees. And the result is that the First Amendment gets shafted in my beloved Commonwealth.