Well that’s an interesting defense argument…

November 28, 2015

An attorney representing “War Machine” a.k.a.Jonathan Koppenhaver, in his trial for kicking the living shit out of his girlfriend, adult actress, Christy Mack (a.k.a. Christine Mackinday) raised an interesting line of defense.

He reportedly argued that you can’t rape a porn actress, because, she’s a porn actress.

In court on Monday, defense attorney Brandon Sua said that Mackinday’s career in adult films constituted consent and that her job instilled in her “the desire, the preference, the acceptability towards a particular form of sex activities that were outside of the norm.”

The sexual assaults Mackinday charges Koppenhaver with, said Sua, were a consensual part of their relationship. He argued that Mackinday had alleged sexual assaults in the past by Koppenhaver, but then dropped the charges rather than face a trial.

District Judge Elissa Cadish told Sua that she failed to see how a person’s choice of profession could determine their constant and ongoing consent to sex.

“I don’t see how any of those activities that she did in adult movies would ever show her consent to the acts with the defendant that he’s charged with,” she said. “I’m not seeing that connection.” (source)

At this upcoming Male Feminist of the Year Award banquet, I’m not exactly a dark horse for the trophy.  In fact, I’m sure that I wouldn’t be allowed within a 1 mile radius of the place.

But Jesus Hello Kitty Christ on a Rocket Powered Toboggan!  Did he really make that fucking argument?  Yeah… seems like he did.  But, I sort of get it… if he can establish that kooky shit was part of their normal sex lives, yeah, maybe.

But that doesn’t get me to where it was ok to beat the living shit out of her.

You see, sometimes you gotta do what you gotta do as a defense attorney.  And sometimes, you gotta tell your client “that’s the dumbest fucking idea I’ve ever heard.”  I’m just presuming that the client came up with that one, because I can’t think of an argument more likely to turn a judge or a jury off to you.

Apparently War Machine also blew a kiss at the prosecutor.  That I can sorta understand.  He’s clearly fucked, so why not go out with attitude.

Although, it sounds like he managed to piss off Judge Cadish. (source)  That’s not particularly easy to do.  She has what we lawyers call “good judicial temperament.”  But, I would not wish to find myself on her bad side.



A guy made an ISIS flag covered in cocks

November 28, 2015

And it is hilarious… as is the fact that the stupid fucking media didn’t notice that they were cocks.  (source)

Peace of Mind for Free Speech in Massachusetts

November 28, 2015

Not just another band out of Boston

Massachusetts has given the world its fair share of musical greatness.  From the Dropkick Murphys back to Jonathan Richman, The Cars to the Pixies, Aerosmith to Mission of Burma.  Bim Skala Bim to the Lemonheads.  The Unband to the Mighty Mighty Bosstones.  Lets put it this way, your musical life would fucking suck without the 617.  (Fine, we apologize for New Kids on the Block.  That abomination cancels out the points we gained from Til Tuesday and Billy Squier.)

But, I gotta be honest.  Like any Patriots fan has to admit that the Pittsburgh Steelers are, to date, the better franchise.  It doesn’t mean I love the Pats any less, but… you might love your wife til the end of time, but you got a set of eyes, and you can tell if another guy’s wife has a better ass than yours does.  Admitting it, if true, just means that the rest of your opinions are valid, since you’re not full of shit.

The fuckin unband

The fuckin’ Unband

So, in that vein, I’ll say that even though I personally put the Unband (the ultimate rock out with your cock band of all time) and The Modern Lovers (say no fucking more) at the top of my Masshole playlist, I can’t deny that the Boston is King, A-number one, Snake Fucking Plisskin riding a Dragon while swinging a mountain lion by the tail above his head, fucking rulers of the universe, when it comes to Boston music.  You can go into a party in Melrose and put on Mission of Burma, and some asshole is gonna say “Turn that shit off.”  Almost everyone loves the J. Geils Band, but put that on in a crowd that would rather hear the Mighty Mighty Bosstones and there’s gonna be words.

You wanna please everyone, then you fucking play Boston.  When New England finally secedes from the rest of this sinking ship of a country, I’ll be lobbying for Roadrunner to be the national anthem, but I wouldn’t be surprised if it lost to “More than a Feeling,” and I wouldn’t mind either.  (Although, the smart asses in New England would probably pick Billy Squier’s The Stroke, just to fuck with everyone).

Brad Delp was about as close to royalty as you can get in Massachusetts.  He was the lead singer for Boston, and his iconic voice ran through the soundtrack to at least two generations of New Englanders.  Sadly, he took his own life in 2007.  (May his soul sit eternally in a sky box at Fenway, eating an endless supply of lobster rolls, sitting in a kiddie pool full of Sam Adams beer, flanked by two hot chicks who shut the fuck up through the whole game).

Boston might have a lot of music, but it only has two newspapers — if you use that term loosely.  We got the Boston Globe, which is pretty decent, and we have the Boston Herald, which is sorta like the New Kids on the Block.  NKOTB was bullshit, but anything with Mark Wahlberg in it can’t be all bad.  And, the Herald has its moments.  But, for the most part, it is not exactly the kind of place that Edward R. Murrow would want to visit, if he came back to life.

After Delp voluntarily merged with the infinite, the Herald ran a series of stories suggesting that Donald Scholz, the band’s leader, was responsible for Delp’s suicide.  The series relied on “unnamed sources” as well as Delp’s estranged wife, Micki, and used bullshit headlines like “Pal’s snub made Delp do it: Boston rocker’s ex-wife speaks.’’  Scholz sued The Herald and its columnists for defamation, for implying that he had a hand in Delp’s death. (Scholz v. Delp at 2).

Just this past week, the Massachusetts Supreme Judicial Court (SJC) ruled that the articles were non-actionable opinion.   (Scholz v. Delp at 4).

The articles were, to say the least, not the greatest journalism, but not exactly the worst.  The writers carefully crafted a story to fit a sensational narrative, implying the opinion that Scholz caused Delp to off himself.  But, the key word here is “opinion.” And, although that opinion was nasty and harmful, that doesn’t make it defamatory.

The SJC quoted the landmark case, Gertz v. Welch: “However pernicious an opinion may seem, we depend for its correction not on the conscience of judges and juries but on the competition of other ideas.” (Scholz v. Delp at 12).

While “[a] statement of fact is not shielded from an action for defamation by being prefaced with the words ‘in my opinion,'” Levinksy’s, Inc. v. Wal-Mart Stores, Inc., 127 F.3d 122, 127 (1st Cir. 1997), quoting Haynes v. Alfred A. Knopf, Inc., 8 F.3d 1222, 1227 (7th Cir. 1993), a statement that does not contain
“objectively verifiable facts” is not actionable.(Scholz v. Delp at 12).

The SJC noted that in some cases, one might be able to come up with a 100% clear reason as to why someone might commit suicide, but this is not one of those cases. Therefore, it was clearly speculation.

The statements at issue could not have been understood by a reasonable reader to have been anything but opinions regarding the reason Brad committed suicide. “[I]f it is plain that the speaker is expressing a subjective view, an interpretation, a theory, conjecture, or surmise, . . . the statement is not actionable.” Haynes v. Alfred A. Knopf, Inc., supra at 1227. See Milkovich v. Lorain Journal Co., supra at 9. See, e.g., Gacek v. Owens & Minor Distrib., Inc., 666 F.3d 1142, 1147-1148 (8th Cir. 2012) (concluding that “anyone is entitled to speculate on a person’s motives from the known facts of his behavior,” and that statements that plaintiff “pushed [the decedent] over the edge,” was “the straw that broke the camel’s back,” and “was the reason for [the decedent’s] death” were nonactionable because they did not express objectively verifiable facts, but, rather, were defendant’s “theory” or “surmise” as to decedent’s motives in taking his own life [citation omitted]). Cf. National Ass’n of Gov’t Employees/Int’l Bhd. of Police Officers v. BUCI Tel., Inc., 118 F. Supp. 2d 126, 131 (D. Mass. 2000) (“the interpretation of another’s motive does not reasonably lend itself to objective proof or disproof”).(Scholz v. Delp at 12-13).

The SJC also noted that the articles themselves were somewhat gossip-column like, and contained cautionary language that would alert the reader to the fact that they were not making a conclusive statement of fact — rather that they were sharing an opinion.

Of course, just because something is labeled “opinion,” that does not necessarily make it legally so. I can write “in my opinion, Bob Smith uses cocaine.” Well, Bob just might have a case against me, if I do that. But, if I say “Bob Smith had white powder on his nose, kept sniffing, and he was talking really fast, so my educated opinion is that he was probably on cocaine.” That would be another story. Why? I disclosed the facts that formed the basis for my opinion. Similarly, I could say “Bob was slurring his words, burping a lot, and kept saying how much he loved everyone, therefore my opinion is that he was using cocaine.” That would be a pretty clearly off-base opinion, but at least I shared my data.

The SJC tackled this issue:

Even a statement that is “cast in the form of an opinion may imply the existence of undisclosed defamatory facts on which the opinion purports to be based, and thus may be actionable.” King v. Globe Newspaper Co., 400 Mass. 705, 713 (1987). By contrast, an opinion “based on disclosed or assumed nondefamatory facts is not itself sufficient for an action of defamation, no matter how unjustified or unreasonable the opinion may be or how derogatory it is.” Dulgarian v. Stone, 420 Mass. 843, 850 (1995), quoting Lyons v. Globe Newspaper Co., supra at 262. (Scholz v. Delp at 17).

By laying out the bases for their conclusions, the articles “clearly indicated to the reasonable reader that the proponent of the expressed opinion engaged in speculation and deduction based on the disclosed facts.” See Lyons v. Globe Newspaper Co., supra at 266. It does not appear “that any undisclosed facts [about Scholz’s role in Brad’s suicide] are implied, or if any are implied, it is unclear what [those might be].” See Cole v. Westinghouse Broadcasting Co., 386 Mass. 303, 313 (1982). Moreover, it is entirely unclear (even assuming that facts are implied) that they are defamatory facts. See id. (Scholz v. Delp at 19).

The SJC upheld the trial court’s dismissal of the claims at summary judgment, noting that Summary Judgment is a favored means of resolving defamation cases. (Citing New England Tractor & Trailer Training of Conn., Inc. v. Globe Newspaper Co., 395 Mass. 471, 480 (1985), citing Cefalu v. Globe Newspaper Co., 8 Mass. App. 71, 74 (1979), cert. denied, 444 U.S. 1060 (1980)).

I wouldn’t call this a SLAPP suit. It wasn’t just a rich asshole trying to suppress criticism. Imagine if you were slathered on the front page of a tabloid, essentially being blamed for your long-term colleague’s suicide. I can really empathize with Scholz here. But, the First Amendment demands that we have room for discussions like this one, and it gives The Herald the latitude necessary to keep its cart open in the marketplace of ideas.

I just really wish that this was not Delp’s legacy. They weren’t just another band out of Boston, and Delp wasn’t just another kid from Peabody, Mass. But, I suppose that there’s some poetry in it — that voice that we cranked in the dunes at night at Good Harbor Beach, or as we drove ridiculously fast up Route 128… that voice won’t ever leave anyone’s head, if that head spent any formative years in New England.

Perhaps it is poetically appropriate that Delp now lives on, giving us all the Peace of Mind that we are that much more free because of him.  I hope that whatever remains of him can find just a little slack in that.

Don’t Drive by Hookers

November 28, 2015

A Los Angeles City Councilwoman is pushing for a plan that would use license plate reader technology to log visits to areas that are “known for” prostitution.  She then wants to use that database to send letters to the vehicle’s registrants, explaining that the car was in such an area.

Councilwoman Nury Martinez seems to have the typical statist mentality about this.

In a statement issued by her office Wednesday, Martinez said, “If you aren’t soliciting, you have no reason to worry about finding one of these letters in your mailbox. But if you are, these letters will discourage you from returning. Soliciting for sex in our neighborhoods is not OK.” (source)

You know what’s worse than soliciting sex?  How about a government that is so fucking out of control and obsessed with a victimless crime that it would destroy all notions of privacy, freedom of association, and presumption of innocence?

I remember getting pulled over one time in a really shitty part of town. Why did I get pulled over?  The cop figured I had to be there to buy drugs or pick up hookers.  “A white guy in a Porsche in this neighborhood?  You ain’t here visiting a friend.”    I managed to convince him that my reason for being there was far less insidious — I was lost.

Screen Shot 2015-11-28 at 9.03.18 AM

Cleaning things up — like dirty Civil Liberties

Under Martinez’ program, my wife would get a letter in the mail suggesting that maybe I was there to fuck a hooker.  But, lets say I was there to visit a friend, or a client, or lets just say that I wanted to sit outside the church and listen to the choir sing.  Lets say I just wanted to drive down the street to gloat at the poors.  Lets say I wanted to drive down the street just because I damn well fucking wanted to.

I don’t see what the problem is with street hookers anyhow.  I mean, they’re a bit low class for my tastes, but if there’s a willing seller and a willing buyer, who am I to interfere?  But, there’s a practical element here t0o — I’ve lived in neighborhoods with street hookers and street drug dealers.  You know what those streets were?  Safe.  Why?  Because violence and property crime was bad for business.

I understand that some moral crusaders just can’t stand the fact that someone might be smoking a joint, or getting a blowjob.  I even understand that my libertarian attitude might not win the day in the marketplace of ideas.  But, I sure as shit can’t see anyone with half a sack of ethics saying that we should turn ourselves into a surveillance and snitch state just so that some ugly chicks in way too high heels don’t give $20 blowjobs to creepy guys.  If you’re going to blow up the Bill of Rights, at least make it worth it.


Rolling Stone: The Bill for Journalistic Malpractice Comes Due

November 28, 2015

Last year, Sabrina Erdely wrote an article for Rolling Stone story about a gang rape in a UVA frat house.  It turns out that she made up the story, and that seems to have caused serious harm to the Phi Kappa Psi fraternity.   Now the bill is coming due, as Phi Psi sued Rolling Stone for defamation.  (source)

The story initially exploded, largely because of the salacious details and a narrative that many wanted to believe.  I was one of the many who bought the story at first, as I confessed in an article last December.

As I wrote then:  Why wouldn’t I believe it? The antagonists were a bunch of over-privileged white fraternity jerks from UVA, it seemed. The victim was yet another young woman who had had justice withheld. The story confirmed what I wanted to believe: that the elite run roughshod over the rest of us. It proved so much, and I “knew” which side was right.

It then came to pass that we were wrong.  Ederly’s story was the worst kind of fabrication / sloppiness.  I don’t know if she made it up with the source, or just refused to fact check, but it was sloppy crap (at best).  When this kind of thing happens on an unedited blog, it is bad enough.  But, one would think that the mainstream press, especially a publication like Rolling Stone, would fact check its story.  Why they failed to do so is anyone’s guess, but they certainly failed to exercise a healthy enough dose of skepticism.  That may cost them dearly, as the fraternity is seeking $25 million in damages.

As a First Amendment advocate, my knee jerk reaction to a big defamation suit is to side with the publication.  We have a right to say what we want, right?  Freedom of Speech?  Freedom of the Press?

Not this time.  Freedom doesn’t mean “freedom from responsibility.”

The First Amendment lets you say what you want, but it doesn’t mean that you can’t be stuck with the bill if you get it wrong.  You break it?  You buy it.

Defamation liability lies when there is a false statement of fact that injures the plaintiff’s reputation.  In this case, Ederly and Rolling Stone certainly did that to the Phi Psi fraternity.

The suit reads “In the most scurrilous traditions of yellow tabloid journalism, Rolling Stone published a devastating story it knowingly failed to verify, in reckless disregard for truth or falsity, or the essential safety, dignity, and welfare of the organization or of those lives it was willing to crush with its defamatory article…The story was simply too tempting, too sensational, to let facts get in the way.” (source)

And therein lies the core of a strong defamation claim.  Rolling Stone will likely claim that the fraternity is a “public figure.”  I agree, it is.  As a public figure, it faces the toughest standard for a defamation plaintiff – “actual malice.”

That standard has an unfortunate name, because it confuses most laypeople into thinking that if the author actually had malicious intent, then that means it was published with “actual malice.”  Even worse, there are some really really shitty lawyers out there who think that is the case too.  I shouldn’t shit on them that hard, because dumb-asses like that help me make a living.

Repeat after me “actual malice has nothing to do with maliciousness.”  You can write about someone with complete malice in your heart – if you write the truth, or even close enough, the First Amendment will usually protect you.  We even allow for some unfortunate mistakes, because the First Amendment needs “breathing room,” as the Supreme Court has said.

In the defamation context, “actual malice” means that the defendant published the defamation either knowing it was false or with a reckless disregard for the truth.  (See New York Times v. Sullivan).  That is “actual malice.”

That standard seems to be met here.  Ederly either made her story up from whole cloth, or all the evidence of it just mysteriously disappeared.  Rolling Stone (at the least) careened toward the wall without even turning the wheel or hitting the brakes.  Even if we are forgiving to Ederly and Rolling Stone, it seems clear that there was a reckless disregard for the truth here.

The First Amendment is there to protect true journalism, and it is even designed to give a wide berth to journalism that simply screws up.  When a public figure is in play, the news is allowed to get it wrong.  But they aren’t allowed to commit gross negligence, and thereby destroy the reputation of an organization, or individuals, who haven’t done anything to deserve it.

As I wrote last year:  I don’t know what Erdely’s agenda was, but it wasn’t responsible journalism. Responsible journalism is hard. It isn’t public relations. A responsible journalist digs for the truth, she doesn’t just take her subject’s agenda and run with it. That isn’t journalism, that’s “gossip,” and like all gossip, it doesn’t do anything positive for anyone.

In this case, I think that Rolling Stone will need to get its checkbook out.  Will it have to pay $25 million?  That seems a little bit ambitious.  But, Rolling Stone should be held responsible for its actions, and I predict it will be.

Where do Syrian Refugees Belong?

November 27, 2015

In what is reported to be the largest demonstration in Polish history, 170,000 Poles rallied against the “Islamization of Europe.” (source)  (the source is somewhat suspect though).  I don’t need to provide sources to show that there are similar sentiments in the United States.

I am both in support of this xenophobia and against it.

When it comes to the United States and Canada, I believe there is no room for such xenophobia.  We are immigrant nations, and if we are “overwhelmed” with a flood of these strange people, with strange customs, and strange languages, and strange beliefs, so what?   It was not so long ago that the Anglo-Saxon “Americans” felt this way about Italians.  (source)   The President of the United States felt this way about Italian Americans:

“The Italians. We musn’t forget the Italians. Must do something for them. They’re not like us. Difference is, they smell different, look different, act different. After all, you can’t blame them…trouble is, you can’t find one that’s honest.”

That was Richard Nixon, speaking in 1974. Today, The Daygo is trustworthy enough that he holds a grip on two of the nine supreme court seats.  In 40 years, maybe we’ll have a Syrian on the Supreme Court.

This is what America is — it is a place that should welcome immigrants.  To the extent that those immigrants change the character of the nation, so be it.  We are an evolutionary society, and if one day there are muezzins calling the faithful to prayer, in Spanish, to a black-skinned majority, that isn’t necessarily a bad thing.  It might not be the America I would choose for our future, but this is America.  You sit on the roller coaster, and it brings you were it will.

On the other hand, I see nothing wrong with European nations being xenophobic.  In fact, I think Europe should slam down the fences and tell the refugees to go the other way.  For those who would call for “diversity,” as some kind of sacred mission, this should resonate.  Do we really want a Europe that no longer has a distinctive “France,” “Netherlands,” “Italy,” or “Sweden?”  I don’t.  When you consider that there have been efforts to deny both Italy and Poland their nationhood and self-determination, I can see a dose of right-wing xenophobia as a healthy thing.

Finally, it isn’t as if there is nowhere else for them to go.  As mentioned above, America should open her arms to immigrants.  But, what about other middle eastern countries, like the super-rich Gulf States?   They.  Give.  No.  Shits.  In fact, a Kuwaiti official reportedly said that they didn’t fit in there.

Now I realize that there is a difference between a Syrian and a Kuwaiti.  But, at the same time, none of the Gulf states consists of borders drawn around “a people.”  They are all artificial borders drawn to keep the oil from being in the hands of one ruler.  There is no individual heritage, no individual language, no individual culture at risk if all of a sudden, Qatar becomes “overwhelmed” with refugees from a crisis that is partially its damn fault.  (Kettle, meet Black, since I’m American, writing this).

It seems to me that the only people who have a right to close the door are the Europeans.  Meanwhile, they’re the only ones doing anything.   Europe ought to close the gate, and the US and the Gulf should open theirs.

A smart way to deal with online sexual harassment

November 27, 2015

This Australian woman came up with a great way to deal with it — tell the little shits’ mothers! (source)  1) It is effective, 2) the kid is likely to actually learn something from his mother, 3) it doesn’t scream to authority to go and throw someone in jail for his thoughtcrime.


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