Alleged Copyright Troll Sues Critics

By Jay Wolman

In a page out of Rakofsky vs. The Internet, it appears that one of the law firms and attorney groups frequently criticized as representing copyright trolls, Paul Duffy, John Steele, and Prenda Law, has gone on the offense against its critics.

More details here:

Prenda Law, John Steele, and Paul Duffy file suit against Alan Cooper, his lawyer Paul Godfread, and anonymous John Does

Here:

Copyright trolls Prenda Law, Paul Duffy, and John Steele commence three lawsuits v. Paul Godfread, Alan Cooper and our community

and here:
http://www.techdirt.com/articles/20130303/23353022182/prenda-law-sues-critics-defamation.shtml

copies of the complaints are linked by Jordan Rushie (1st Link). I have not read the entirety of the complaints, but I believe I saw quite a few protected statements that cannot form the basis of liability. Unclear what motivated the suits, but I have a feeling the Plaintiffs will come to regret them.

Editor’s note, the views in this post are those of Mr. Wolman. No other Satyriconistas have taken a public position on this dispute.

Illinois court rules anonymous comment allegations ‘sheer speculation’

A court in the Northern District of Illinois recently concluded that accusations that an internet service provider might have falsified an account in order to leave comments anonymously cannot survive a motion to dismiss.

In Hadley v. GateHouse Media Freeport Holdings, a county board member filed a complaint against the publisher of the Journal-Standard for allegedly defamatory remarks made in the comments on its website. 2012 WL 2866463 (N.D. Ill. 2012).  The plaintiff stated that under an article published by the Journal-Standard, a person using the name “Fuboy” posted the comment: “Hadley is a Sandusky waiting to be exposed. Check out the view he has of Empire from his front door.” Id.  The defendant cited to the Communications Decency Act, reasoning that because it is an internet service provider, it is immune from liability for statements posted on its site that cannot be attributed to it. Id.

The plaintiff countered in his opposition, however, that it is possible that “Fuboy” was actually a creation of the defendant used as a proxy to convey the information anonymously.  Id.  The court rejected this argument, saying that, not only was this allegation not included in the complaint, but claiming this was “sheer speculation,” and the accusation was not enough to survive a motion to dismiss. Id.  For those reasons, the court dismissed the complaint against the Journal-Standard.

The decision is fairly short and to the point, leaving no room for speculation about why the plaintiff might have made this allegation in its opposition to the motion to dimiss.  But Hadley also failed to allege that the newspaper created the comments in his complaint, leading one to believe that the accusation was not grounded in any proof.  It seems that the plaintiff’s counsel were engaged in some creative lawyering in an attempt to work around 47 U.S.C. § 230.  Although no doubt publishers may have created screen names in an attempt to leave anonymous comments in the past, it is few and far between.  Additionally, such an accusation would need to be properly pleaded in the complaint.

This decision shows once again that Section 230 is a powerful tool for Internet service providers.

Couple receives largest internet libel award

A jury in Fort Worth, Texas awarded a husband and wife $13.78 million in a libel lawsuit after anonymous commenters started an online campaign designed to ruin their reputations. (Source). The judgment is the largest ever awarded in an internet libel case.

The plaintiffs—an attorney and a salon owner—had previously been the subject of a criminal trial after one of the defendants in the libel suit, a former client of the attorney, accused them of sexually assaulting her. A jury acquitted them in the criminal case, but the libel case arose after the accuser, her husband, and two of the couple’s employees took their campaign to the internet in a blast of anonymous comments and sites. As a result of the internet campaign, the couple relocated to another town. In all, the plaintiff attorneys compiled about 25,000 posts they deemed libelous. The trial included posts accusing the couple of murder, pedophilia, drug abuse, and other crimes.

Although this particular case presented an extreme instance where false speech greatly damaged one couple, the high amount of the award could mean that anonymous internet commenters might be more on guard, even if what they are saying is purely a matter of opinion or true.

Section 230 Amendment strips websites of immunity from anonymous commenters

Connecticut Sen. Joe Lieberman, who is not particularly known for his friendliness toward the First Amendment, is at it again.  As chairman of the Senate homeland security committee, Lieberman urged Twitter to stop hosting pro-Taliban tweets last fall, in addition to persuading Internet companies to remove blog posts that promote terrorism.

It appears he’s now taking the idea one step further by proposing an amendment to section 230 of the Communications Decency Act. (Source.) Section 230 (47 U.S.C. § 230) grants immunity to Internet Service Providers from being held liable for the comments of third parties to their websites. Basically, it’s what shields review sites like TripAdvisor or Yelp from butthurt business owners holding them liable for disgruntled third parties’ reviews.  It is also what allows all of you to say whatever you want in the comments without The Legal Satyricon being taken to task for it (legally).

However, Lieberman’s proposed amendment would change that. The new language reads:

“No A provider or user of an interactive computer service shall may be treated as the publisher or speaker of any information provided by another information content provider.”

Although Lieberman is touting this amendment as an anti-terrorist effort, this action will have a chilling effect on all forms of Internet speech. Service providers from Comcast to Consumerist may now be treated as publishers to content posted to their websites. This opens up the possibility that review sites and others that rely on third parties for content will be held responsible for those very same deranged, sub-literate contributions. Lieberman’s proposed amendment will have a chilling effect on free speech, as any site that does not want to drown in legal bills likely won’t accept anonymous comments.  If you’re a sissy with paper-thin skin or an obsession with “bullying,” rejoice, I suppose.

Long before the rise of the Internet, anonymous speech has provided an outlet for those who wanted to make their voices heard, but were unable to so for fear of retaliation. The issue of anonymous speech was discussed in great detail in McIntyre v. Ohio Elections Committee, which involved a woman who handed out unsigned political leaflets that opposed a tax levy. The Supreme Court held that such speech was protected:

“Under our Constitution, anonymous pamphleteering is not a pernicious, fraudulent practice, but an honorable tradition of advocacy and of dissent. Anonymity is a shield from the tyranny of the majority.”

Needless to say, inhibiting anonymous speech is an attack on this right in gross.  It will be a grave day if this amendment succeeds.  Although anonymous speech on the Internet is not always the most intelligent, it still has its place in public discourse – for me to poop on.  Civil liberties should not be victims in the attempt to curb terrorism, yet we have already succumbed to the Scylla and Charybdis of the TSA and NSA in entrusting our rights to the benevolent government.  At this point, what’s one more right ceded to the security theater’s alphabet soup?

 

Blasting people on twitter – not cyberstalking!

By J. DeVoy

Pundits were concerned earlier this year when the U.S. Attorney for the District of Maryland brought a criminal action against William Lawrence Cassidy.  His alleged crime?  Posting 8,000 harassing twitter messages about Alyce Zeoli, a buddhist leader in Maryland.  The Court dismissed the Government’s case, as Cassidy’s anonymous speech addressed a topic accorded the highest constitutional protections: Religion.

Admittedly, some of the messages were witty.  Take this poetry, for instance:

Ya like haiku? Here’s one for ya. Long limb, sharp saw, hard drop

Some were more esoteric, such as “A thousand voices call out to (Victim 1) and she cannot shut off the silent scream,” while others got to the point: “Do the world a favor and go kill yourself. P.S. Have a nice day.”

The Court’s Order  is a solid win for the Defendant – and free speech.  Within it, the Court found that 18 U.S.C. § 2261A(2) is unconstitutional as applied to the defendant.  Not only does the First Amendment kick ass, it’s now a tool, albeit a slow-working one, against the federal government’s overcriminalization of daily life.

I strongly encourage reading the whole Order, but most importantly, there’s this:

However, it is questionable whether the same interest exists in the context of the use of the Internet alleged in this case because harassing telephone calls “are targeted towards a particular victim and are received outside a public forum.” United States v. Bowker, 372 F.3d 365, 379 (6th Cir. 2004). Twitter and Blogs are today’s equivalent of a bulletin board that one is free to disregard, in contrast, for example, to e-mails or phone calls directed to a victim. See id. at 378 (contrasting why a federal telephone harassment statute serves a compelling governmental interest and a statute that made it a criminal offense for three or more persons to assemble on a sidewalk and to be “annoying” to a passerby did not serve a compelling governmental interest). (emphasis added)

H/T: EFF

The Aroma of Tacoma Smells Like a Can of STFU.

Back in 2009, Washington State Governor Christine Gregiore signed SB 5688, the so-called “Everything But Marriage” act. Source. Shortly thereafter, a group of concerned citizens calling themselves Protect Marriage Washington got enough signatures to place a referendum challenging the bill. Protecting marriage from what, exactly, remains a mystery but Imma call them “The Protectors” anyway. No word on if they have capes with an Xed-out picture of two guys holding hands. Anyway, shortly after Washington Secretary of State Gary Reed determined the signatures were valid, he received a public records request under Wash. Rev. Code §42.56.001 for the names and addresses of the 137,000 signatory Protectors. The Protectors didn’t like that one bit and asked for a preliminary injunction to prevent Secretary Reed from complying with the request. They are trying to say that disclosing their names and addresses violates the First Amendment because referendum petitions are political speech and the resulting harassment they would (allegedly) receive would stifle that speech. This case wound its way all the way to the Supreme Court. Here’s the Opinion: Doe v. Reed.

Boiled down, the Protector’s main gripe is that the government’s interest in preventing voter fraud and the integrity of the electoral process pales in comparison to the stifling of their first amendment rights because the public records request was made to harass them for their political views. The Big Dogs didn’t buy it. Justice Stevens’ concurrence sounded a little like “Why the hell are we even here?” so that was a treat.  But the Nine did recognize that disclosure requirements could stifle speech in some cases and even allowed for an exemption if there is a “reasonable probability that the disclosure would result in threats or harassment.” They didn’t address whether the request was unconstitutional as applied to this particular petition, so the parties got sent packing back to the District Court in Tacoma to figure it out. Both promptly filed motions for summary judgment. Source.

The Protectors tried to convince the Court that they should be afforded the disclosure exemption because their paltry 137,000 signers are a minority party akin to the NAACP in 1958 or the 60 member Socialist Party in 1976.  Really Protectors? Really? Anyway, Judge Settle disagrees. And even if the Protectors could be granted minority status, they still would have had to produce…uhm….oh yeah. Evidence. But, awshucks, they couldn’t come up with anything to show that they had experienced harassment, threats, or reprisals due to their involvement with the referendum. Oh-did I mention several of the Protectors posted YouTube videos, had television and radio interviews, stood on street corners with signs, testified before the Washington State Legislature, collected signatures in front of Wal Mart and Target, put signs in their front yards, had bumper stickers on their cars, and published articles about their anti-gay position? Yeah, they did that. But we need to protect their anonymity because they might be harassed because of this stupid petition.

Look, part of being a junk yard dog for the First Amendment means that sometimes I have to defend speech I find repulsive. For what it’s worth, I think the Protect Marriage folks are bunch of hate-spewing morons. They seek to stifle the speech of those opposing a view they willingly cram down our throats and then hide behind the very Amendment they kick in the nuts when it comes to other people’s naughty bits. BUT- If they could have come up with evidence showing a probability that they were being harassed, threatened, and harangued to the point they were fearful of expressing their view, I would argue in favor of exempting them from disclosure.  But the Protector’s evidence of harassment consists of testimony that shows a pastor got a call from a *gasp* transgender woman. The horror! Another Protector got flipped off one day *shudder*! One guy even got called a homophobic bigot. The shame! No one was fearful to testify in the case. No one is being clubbed. No one is being swept down the street by fire hoses. The worst they could show is that sometimes the Protectors are called “assholes” and told that their platform “is a bunch of shit”. Well, if the shoe fits, Cinderella…

Jessica Valenti doesn’t understand the Streisand Effect

By J. DeVoy

Imagine if there was an online database of killers, child abusers, bigots, rapists and liars – and they were all women.  Now there is!  Register-Her.com, a project started by Paul Elam, a men’s rights activist and contributor to The Spearhead, uses a wiki-style webpage to consolidate locally and nationally reported facts about women whose documented wrongs range from murder to false rape accusations. [Disclaimer: Like Elam, I also contribute to The Spearhead.]  This is SRS BUSINESS.

One of the first additions to the site as a “bigot” is feministing’s own Jessica Valenti.  Merriam-Webster defines a bigot as “a person who is obstinately or intolerantly devoted to his or her own opinions and prejudices; especially : one who regards or treats the members of a group (as a racial or ethnic group) with hatred and intolerance.”  Without dignifying Valenti’s oeuvre with my attention, this sounds accurate.

If a tree falls in the woods, does anyone hear it?  If Jessica Valenti didn’t shriek like a harpy about “misogyny,” would so many others know about Register-Her.com?  Rather than letting this roll off her back with the cool disposition of an empowered, independent blah blah blah… woman, she posted this YouTube (which, admittedly, I have not watched to completion).

Result: More people know about the site.  Also, male advocates are increasingly stepping out of anonymity, contrary to Valenti’s assertions.  Paul Elam’s real name is… Paul Elam!  My name and identity are well known, and I’m on the record opposing anonymity in advocating men’s issues and any other controversial position  — though I understand and respect why others employ it.  Crime & Federalism offers a counterpoint on the issue here.  I rather enjoy this and, as far as I know, the “basement-dwelling virgin” meme has never been attached to me.  In fact, the biggest critics of women I’ve met are people among the best looking and most successful with women that I know.  In contrast, the basement-confined and virginal types tend to supplicate women and resent men who are successful with women, turning on them for the smallest of reasons (like in the case of Dominique Strauss-Kahn — come on, “forced” oral sex wasn’t a red flag of falsity?).

Just like when Barbara Steisand’s shrill howls – and not even her singing – drew attention to photos of her Pacific mansion online, Jessica Valenti’s plaintive whines drive more eyes to the site.  If she had just shut up, the damage would have been limited mostly to the men who would have found the site anyway – preaching to the choir.  Realizing that the damage was done, Valenti is now trying to scrub the internet of any trace of her existence, seeking the anonymity she criticizes men for using to voice their opinions.  I hope Reputation Defender is still in business!

But enough about a bitter, angry shrew who has to live not only with herself, but also a younger, neckbeard beta husband.  The new site itself, Register-Her.com, is a more worthy topic of discussion.

Is it fair for Register-Her.com to exist?  The Atlantic tells us that it’s the “End of Men.”  Women already kvetch and attack men’s reputations on Don’t Date Him Girl.  There’s no need for free speech to be “fair,” since its mere availability levels the playing field.  This new website fills a void in beating back the myth of intrinsic female virtue, though.  I clicked around to see what the site was about and found that each article is a recitation of sourced, cited and publicly available information.  In some cases, the women profiled in the articles are described in their very own words.  While the site was designed to be provocative, it was not created with the intent to hurt those named within it for the sheer purpose of inflicting pain.  Plus, there are limitations of liability inherent in the site’s design and operation.  Section 230 protects the site’s owner from liability for content posted by others.  To the extent others’ content may wind up on the site, such as a mugshot or screen capture, they tend to be government works – which are not subject to copyright – or tiny snippets of news articles that are almost certain to constitute fair use — assuming the articles’ factual elements can even be copyrighted.

As for litigation that can be pursued against the site… what, exactly?  Where is the disclosure of public facts when all of the site’s information is available from other online sources?  What unreasonable attention has been brought to someone’s private life?  How is aggregation of the news shocking or extreme conduct — especially when Register-Her.com is a republication of what others have written?  I’m confident Elam has the compassion to remove an entry if there’s a good reason to do so, but it is unlikely that reason would be expressed via litigation with even a remote chance of success, even as a SLAPP suit.

I’ve no doubt that this is far from the end of whining and gnashing of teeth over Register-Her.com.  More will come as the site’s contents work their way up Google’s search algorithm.  All they will do, however, is make the site more well-read and well-known. (See also Juicycampus.com (RIP).)

Civil Procedure Fun!

For those of you who are not lawyers, you can play too.

A plaintiff files a defamation lawsuit. The plaintiff lives in California. The defendant lives in California too — in fact, just a few miles from the plaintiff. Where do you file the suit?

A) California
B) California, because you are not an imbecile
C) California, because you are not an imbecile, and you have ethics
D) Virginia

If you answered D, you are “Internet defamation lawyer” Domingo J. Rivera!!!! (Or a reasonable facsimile).

Okay, so what am I talking about?

Public Citizen reports:

Usha Rajagopal, a San Francisco cosmetic surgeon, has tried to use cosmetic surgery of a legal sort to improve the appearance of her online reviews. She is under discipline by the California Medical Board because of the sloppy administration of anesthesia that put one of her patients in a vegetative state. She was also the subject of a devastating article in the San Francisco Weekly which explained that glowing reviews that helped give Rajagopal a favorable ranking on Google search for plastic surgeons in San Francisco, with five stars suggesting that her patients love her, are the product of her having hired a firm that wrote phony reviews.

Not satisfied by adding favorable reviews, Dr. Rajagopal is apparently intent on extirpating negative reviews as well. After several members of the public placed comments on Google maps about her situation, Rajagopal sued the commenters as Doe defendants, alleging defamation, in an apparent effort to remove the negative comments from her public profile. (source)

Public Citizen filed a motion to quash Rajagopal’s attempt to unmask her anonymous critics.  Here’s the Complaint in the case.

This is why I give money to Public Citizen, and you should too.

Twitter looks out for leakers

By J. DeVoy

A common feature of criminal and civil actions against unknown defendants is the need for subpoenas, warrants, or other court orders to ascertain John (or Jane) Doe’s true identity.  For a long time, these have gone unchallenged by companies seeking to mind their own business, avoid the cost and consequences of litigation – or taking a position in general – and the burden of self-defense has fallen onto individual speakers.  Twitter, however, is one of few firms to stand up for its users.

In civil cases, subpoenas to entities with identifying information such as Google, Yahoo, Microsoft (hotmail) and other sites with users’ real names and contact data can result in the notification of a targeted user.  When Google receives a subpoena for information about a gmail or blogger user, Google can inform him or her that it has received a subpoena for his or her information.  This allows the targeted individual to file a motion to quash the subpoena in the district from which it originates, preserving his or her anonymity.

In criminal matters, though, court orders for this data is often accompanied by a gag order.  Because of the more pressing concerns entailed in criminal matters, the concern is that any notification to the target may compromise the investigation.  As a result, the gag order keeps the court order’s recipient from telling the target that it has received a legal request for his or her information.

Recently, Twitter was contacted by federal authorities seeking information about a variety of users connected to Wikileaks, including founder Julian Assange, accused leaker Pfc. Bradley Manning, ex-WikiLeaks spokeswoman Birgitta Jonsdottir and WikiLeaks activist Jacob Appelbaum.  This order for information was accompanied by an above-described gag order, which Twitter challenged.  Twitter won.  This victory enabled twitter to inform individual speakers about the government’s orders for information and move to quash them on their own.

While Twitter could have moved to quash the orders in tis own, this is still a victory for the WikiLeaks crowd.  In an environment where Bank of America, Visa, Mastercard and PayPal have turned against them, Twitter did something to protect their interests.  Even if this legal intervention is saved for special occasions, Twitter’s willingness to step into the legal arena is heartening — especially for an unprofitable service.

Likely Backlash Against Assange’s Self-Righteous Crusade

by Charles Platt

I’m getting an uneasy feeling when I watch Julian Assange using pretentious phrases such as “my philosophy” and “my work.” (See his latest interview, here.) It’s the same feeling I had when I saw the World Trade Center going down. A feeling that I am watching a golden opportunity for people in power to take away some of my freedoms.

Assange’s self-righteous crusade is sufficiently defiant, and is being done in such a pompous style, some kind of retaliation seems inevitable. Already the UN is on record as wanting to “harmonize” efforts to regulate the Internet, in response to Wikileaks. (See this news item.)

I am old enough to remember how publishers got rid of US laws regarding pornography. They fought a carefully executed, incremental campaign. Freedoms tend to be won this way, slowly but relentlessly, in small steps. Media whores who make grand gestures are not useful in this process. They just provide more fuel for backlash.

We enjoy freedoms online because resourceful groups such as ACLU and EFF fought and won test cases. How unfortunate it would be to see those freedoms squashed because of a prima-donna whose “philosophy” and “work” have been of negligible value so far. It’s important to remember that he is really just another content aggregator, and the material that he has revealed has not been of critical significance. Certainly not important enough to justify a battle that we are likely to lose.

Anonymity takes center stage at TED

By J. DeVoy

Chistopher “m00t” Poole, founder of the site that shall not be named, discusses the value added by Anonymous internet use.

Illinois appellate court unmasks anonymous commenters

By J. DeVoy

The Illinois Appellate Court’s 3d District recently overturned the LaSalle County circuit court’s decision to preserve online anonymity for two commenters.  In the comments section of an Ottowa Times’ online article, the anonymous parties accused the plaintiffs, a local couple, of making bribes in order to secure favorable zoning treatment for land they owned.

The dispute’s subject matter raises interesting questions of public importance and privilege for the commenters’ statements.  Still, the commenters’ accusations of the officials’ corruption through accepting bribes calls for a more nuanced argument than merely claiming the statements were mere opinion.  The Tribune and other news organizations filed amicus briefs in the case, arguing in favor of commenter anonymity for the sake of freer, more open discourse.

If appealed further, Illinois will have a chance to weigh in on the standard for unmasking anonymous internet commenters.  Many states have followed the Delaware Supreme Court’s standard in Cahill v. Doe, which requires a plaintiff to present evidence that could defeat a defendant’s motion for summary judgment in order for the court to issue a subpoena that would unmask a Doe defendant.  Though a higher standard than bare “good cause,” all that is required to oppose a motion for summary judgment is an issue as to some material fact.  While some facts are required under this standard, and it prevents devious plaintiffs from baselessly denuding defendants of their anonymity, it is not a particularly high threshold to meet.

Cahill is not the undisputed measuring stick for determining whether anonymity should be preserved or stripped from an internet commenter, though.  In Dendrite International v. Does, the New Jersey Appellate Court set forth a five-factor balancing test for compelling an ISP to unmask an anonymous poster.  The factors considered are:

1) The plaintiff must make efforts to notify the anonymous poster and allow a reasonable time for him or her to respond;

2) Plaintiff must identify the exact defamatory statements made by the poster;

3) The complaint must set forth a prima facie cause of action;

4) The plaintiff must bring forth sufficient evidence for each element of its claim; and

5) the presiding court must balance the defendant’s First Amendment right of anonymous free speech against the strength of the plaintiff’s prima facie case and the necessity for the disclosure of the defendant’s identity.

There is evidence that the multi-factor Dendrite case is becoming the favored standard for evaluating subpoenas that would unmask anonymous defendants.  The Arizona Appellate Court remanded the case in Mobilisa v. Doe to the trial court with specific instructions to apply the Dendrite test, as its application of the Cahill standard was improper.

Assuming further litigation arises in this case, it would be an ideal time for Illinois to adopt the Dendrite test or reinforce that standard’s primacy within the state if it has only scant support.  The Cahill test isn’t bad, per se, but lacks the refinement and explicit First Amendment considerations found in Dendrite’s multifaceted evaluation of the subpoena and its consequences.

The scenario that everyone should fear is the Illinois court bucking the nation and fashioning its own standard, creating yet another test to be evaluated by courts that have yet to decide this issue on their own.  While the Illinois courts would be within their discretion to create such new tests, it is unnecessary; the current tests work fine, even if one is superior to the other.  For Illinois to create a new standard for the sake of demonstrating its own perceived legal significance – at least relative to New Jersey and Arizona – hundreds of truly innocent defendants would pay the cost of divining which standard should apply — a particularly cruel fate for the SLAPPed.

Coalition Requests Inquiry into Hate Speech

by Charles Platt

The National Hispanic Media Coalition, which contains groups with harmless or even benign-sounding names such as Free Press, the Media Access Project, Common Cause, and the Prometheus Radio Project, renewed its demands earlier this month for the FCC to investigate “hate speech” and “misinformation” in the media.

“Hate has developed as a profit-model for syndicated radio and cable television programs masquerading as ‘news’,” they write. And as for the Internet, it “gives the illusion that news sources have increased, but in fact there are fewer journalists employed now than before . . . . Moreover, on the Internet, speakers can hide in the cloak of anonymity, emboldened to say things that they may not say in the public eye.” Well, obviously we can’t have THAT. Anonymity was okay in the Federalist Papers, but–not here, apparently (you can access their document here).

Meanwhile the FTC has released a “staff discussion draft” of ideas to “save” print journalism by innovative strategies such as exempting newspapers from antitrust regulations or funding them with a tax on consumer electronics. This is all very tentative, of course–for now.

The man-hating crowd’s blood lust strikes again

By J. DeVoy

I have no issue with feminists.  In this classic case of taking it too far, however, certain women have descended upon bloggers I frequently read and link to here — Ferdinand Bardamu and Roissy — and are harassing them for promoting “anti-woman” views.  This is correlated with Roissy’s (brief, thankfully) cessation of writing and closely timed with Bardamu taking a step back from daily blogging.  Hopefully it isn’t causative, though it seems unrelated to Bardamu’s slowdown.  Worse, this probably isn’t the first time something in this vein has happened, but I’m noticing it only because it affects blogs I liked.

This attack seems to have two prongs.  First, a jilted commenter from Roissy’s blog has started a campaign to out him; the efficacy of these efforts is unknown.  Because outing anonymous or psuedononymous people is uncool, these materials won’t be directly linked to here, but intrepid readers can easily find them from other web sites referenced in this piece.  Second, and with greater reach, Denise A. Romano, M.A., Ed.M., has been harassing other bloggers with the old vanguard of illogical attacks, shame.  I will not be half surprised if she finds her way to this blog’s comment section, though I hope she does not.  I question whether other Ed.M. holders who read this blog share Romano’s views and appreciate her methods, but I digress.

At the heart of this debate is “game,” the attraction-building strategy I previously discussed and predicted would be subject to attempted suppression because it’s not politically correct.  Game comes in two broad varieties, namely for men and for women.  At its core, it’s based on evolutionary psychology principles that allow its user to present himself or herself in the most desirable possible light.  It will not, however, change the substance of the user.

Romano and other activists contend that game is a misrepresentation that harms women.  First, how does this harm women?  Sociopaths who use these techniques aren’t hurting women because of game – they’re hurting women because they’re sociopaths.  Game is a tool like a hammer, or a screwdriver, or an alligator, and can be used for good or evil.  Second, game itself doesn’t entail misrepresentation.  I doubt Romano would criticize a woman for trying to make her partner feel like a priority to her and attempting to cook well for him as a relationship-seeking strategy, despite the fact that she may be busy or indisposed to cooking.  A man shouldn’t be penalized for employing strategies with proven effectiveness to make himself more desirable to women so long as he’s not expressly lying about material facts such as his marital status, any STDs he many have, or so on.  Romano’s argument essentially considers all styles of personal presentation a lie, which is beyond asinine.

Tolerance means you shut up.

The second layer of this action, beyond protesting game itself, is the punishment of people who provide information about it.  This should be a realm of intense interest for lawyers, law students and anyone else in a demanding field that consumes all of their time and attention, sucking the marrow out of your personality.  Success in life and particularly with women boils down to being cool and interesting.  Generally speaking, lawyers and law students are not cool and certainly not interesting.  As engrossing as we may think it is to debate the scope of the commerce clause and toothlessness of Fed. R. Civ. P. 11, NOBODY CARES.  It’s not a personal failing or defect — just life.

Since at least the sexual revolution, men have pondered why women “only like jerks and assholes”; most recently, the term “douchebag” has been reflexively attached to men who do better than average with women.  My friends in similar educational and life situations have made identical observations, as women acquaintances who were college graduates would furiously rationalize their decisions to date lesser men.  “Lesser” isn’t some petty and idiosyncratic distinction of attending a crapp(y/ier) school, having bad grades or being poorly traveled, but entails clear demarcators of failure such as having children he didn’t support, a criminal record with at least one felony conviction, repeated and flagrant infidelity, and even physical abuse.  From there, two groups emerged within my acquaintances: Those who chose to do something about it, and bitter losers who thought they would win in the end if they never changed and attributed their failings to the fecklessness of women.

Among the former camp, Roissy was a must-read, as he almost specifically reached out to too-driven educated people who spent all their time in high school, college and beyond racking up resume lines without learning how to date, navigate the sexual marketplace, and get out of their own heads.  Truly, the advice there was instructive for people who thought their accomplishments in life would be sufficient to find a desirable and loyal companion, rather than part of a package of factors — sometimes a troublingly small one.  Learning how to use attraction-building techniques while capitalizing on the prestige of a decent education and upward social mobility it demonstrates — or demonstrated, considering the current economy — gave options to men who previously found relationships of varying enjoyability through personal acquaintances and serendipity.  These skills were also used without falling into the stereotypical category of effete, medallion-wearing “pickup artists” mocked in the media.  Anecdotally, these techniques are even more effective on intelligent women who have the intellectual horsepower to revel in harmless teasing and the challenge of a man who doesn’t reflexively accede to their demands.  Indeed, a woman’s receptiveness to these tactics may be a good proxy for intelligence, making this skill even more important upon leaving the bubble of higher education.

To the extent maintaining civilization is a common concern, this kind of information should be disseminated more freely to men; indeed it should be mandatory at good universities so that our most promising minds aren’t given the run-around by women looking for more than a handout.  Granted, this isn’t representative of all women, but women with options, like men with options, explore them; there are far fewer women with no options than men in that situation.  The engineers, accountants, actuaries, dentists and lawyers this country relies on have no reason to settle for the opposite gender’s table scraps, but many don’t know how to do better.  Now they’re being attacked on both fronts, branded as liars and misogynists for using effective techniques to meet desirable women, while the purveyors of such information are subject to life-ruining character assassination attempts by angry strangers.

Admittedly, this is a lot of information and its consequences seem trivial.  Blogs shutter and people stop writing all the time, often for personal reasons.  The issue is that only a small memorial will result, with no conclusive action taken.  I don’t know what that decisive action would entail, though, beyond educating men about the inherent gender biases in law, especially the family court system, and the importance of resisting intimidation.  I once had faith in the lofty rhetoric of Martin Luther King Jr., plagiarism aside, that the arc of the universe would right these wrongs and bring justice to all.  With age I’ve realized that’s crap.  All too often the individual right to be heard is determined by those with the most popular support.  To their credit, men who care about their gender and its fate have been marshaling evidence and intellectual firepower to support their views on the issues facing them.  Unfortunately, it may be time for them simply to scream louder.

Another great proposal for thought-policing law students

By J. DeVoy

With one semester left to go in law school, I’d compare my experience in legal education to being a member of a barbaric tribe of hunters and gatherers.  As a group, there are too many of us for existing economic opportunities, even in good times, yet we cannot simply cut out the undesirables.  For those at the top of the grades/prestige hierarchy, an embarrassment of riches — being wined and dined in faraway cities during interviews and the dog-and-pony show known as summer associateship — is ours theirs.  For everyone else there is little, if anything.  Occasionally, one of the undesirables, someone with low prestige or poor grades, is able to move into one of the few apex positions at the top of the tribe and even transcend it.  Through good lawyering, luck, or connections, he performs the modern equivalent of hitting the dominant alpha lawyer in the back of the head with a really big rock and taking the deceased’s harem, children and physical possessions all for himself.

Juxtaposed with this chaos is the highly regimented legal profession and equally stringent requirements for entry.  As zero-sum as the law student’s realm is, where grades and jobs are finite, a forced superstructure of collegiality creates needless pleasantries and orthodoxy among law students.  People censor themselves for fear of retaliation by professors or future colleagues.  As lax as some would contend the bar is, it does keep out people who would tarnish its reputation.  For instance, avowed white supremacists are precluded from entry.  Similarly, those with nearly half a million dollars in educational debt and no means to repay it are also banned.  But now a new barrier to entry is being proposed.

Danielle Citron, a frequent subject of this blog and erstwhile proponent of stamping out speech she thinks is yucky, was recently on a panel that considered whether jeering people online or making “outrageous” race- or gender-specific comments should be subject to stricter scrutiny upon character & fitness review.  Eugene Volokh offers a probing analysis of the issues this proposal raises.  Two points in particular stand out.  First, this would defeat the rigorous inquiry of ideas and facts that legal education encourages, even if it leads people to take positions Citron and others might find “outrageous.”  I’d shudder to think what this nebulous standard might entail, since reality can lead to some very uncomfortable truths about race and gender.  For instance, black children from rich families are outscored on the SAT by poor whites, a trend that has not improved since the test moved to having three scored components.  Surely some find this outrageous, but the data are clear, and solutions to eliminate discrimination — if there is any, another subject for research — cannot be proposed unless someone brings this information to light.  Forcing someone to risk his or her professional career because of the difficulty in confronting this information is unseemly and contrary to the notion of open, rigorous discussion within the university context.  Without deep, probing examination of tough problems, mediocre solutions arise.  The failure of SAT-optional admissions is one example of this principle, as that process has become the backdoor of dumb rich kids into good schools that the most cynical of us always knew it would be.

Second, as Volokh notes, these kinds of panels — not limited to the AALS, but in general — are a great source of pie-in-the-sky psychobabble, but never produce anything tangible.  Citron herself has been bandying about the idea of requiring the disclosure of prior IP addresses to character and fitness examiners for years, yet it is no closer to being a requirement in any single state than it was at its watershed moment in 2007, the filing of Doe v. [a few dozen AutoAdmit posters].  Until a real proposal or model rule is promulgated, it’s easy and even rational to discount these kinds of panels as Lake Wobegon exercises by people who bemoan the plight of the little people before returning to the warm trappings of tenure and a tower of ivory.  It’s simple: Production counts.  Until such a panel creates something that can be implemented by state bars, they will be looked at with a jaundiced eye.  Meanwhile, people who follow such matters will wonder why the AALS isn’t devoting its resources to wresting sole law school accreditation authority away from the obviously incompetent ABA and shutting down some schools, especially the dubious for-profit ones.

Finally, I feel that it looks I’ve been too harsh on Danielle Citron.  Despite not blogging for long, I have dedicated a substantial amount of writing to her and her proposals.  Though disagreeing with many of these positions, I have respect for professor Citron and especially her prolific publishing.  As of this writing, I’ve requested to be her friend on facebook.  Hopefully she’ll accept.