The Mark of Cain

November 3, 2011

Looks like Herman Cain is having a three way and not in the awesome sense.  A third woman has reportedly come forward with an allegation that Mr. Cain acted inappropriately toward her.  While I’m sure someday Mark might take a pro-sexual harassment case to the Supreme Court, arguing for the 1st Amendment right to be saucy, for now it is considered unlawful.

A side note to political candidates:  if you have a skeleton or three in your closet, reveal it yourself.  It will come out and you want to control the message.

Sexual harassment is a fascinating area of the law.  Sometimes, and rarely, it is blatant quid pro quo, the old casting couch.  Most times, it is something said that offended the listener, with some sexual or gender based content, that is deemed to have gone too far.  It’s like pornography, Rule 34 aside, you generally know it when you see it.  The hard fought cases are the ones where it is less clear.  According to the article:

she said Cain told her that he had confided to colleagues how attractive she was and invited her to his corporate apartment outside work.

Maybe that implied he wanted to sleep with her.  Maybe he was paying her a compliment and the invitation was platonic or business related.  President Obama is an attractive man and I’d welcome him to dinner at my house.  It doesn’t mean I want to become the First Lady by proxy.  As to the complaint Mr. Cain “settled” or reached an “agreement” on (synonyms to me, different to him), he states that it was about a comparison he made of a female coworker to the height of his wife.  If that was a pickup line, it is the worst ever; what woman gets turned on by a man who compares her to his wife?  I’m pretty sure that violates Ashley Madison’s own standards.  But, she may have taken it as such, and maybe that is what he intended.  There may be more to it, but he isn’t talking and she is bound by a confidentiality agreement.  Given both of these, and whatever the third is, you can see why these cases take a lot of lawyering.

As to the two that settled, it sounds like a year’s severance was given for one, and the other got something confidential.  A year’s severance is a pretty nice package; it’s not nuisance.  Confidentiality, on the other hand, does not imply a large settlement; some companies demand it even for nuisance suits.  They don’t want to set any form of precedent.

Some commenters have suggested she breach the confidentiality clause.  That is a huge no-no.  She’d likely have to repay the money, and the statute of limitations has run on filing a claim.  Plus, she’d probably owe attorneys’ fees.  And we’ve all seen how much it sucks to be hit with attorneys’ fees.  Others have suggested Mr. Cain is violating a non-disparagement clause.  My guess is: no.  Like confidentiality clauses, these are typically one sided.  An employee might get a neutral reference clause, but it usually isn’t as broad as the non-disparagement clause given to the employer.

My advice to Mr. Cain:  don’t blame Gov. Perry or Romney.  Air your dirty laundry now.  And watch what you say in the future.  I don’t want to hear any claim that “is” is ambiguous.

 


Can Connecticut take porn from its prisoners? Should it?

October 17, 2011

Many concerns come to mind when someone thinks about spending time in prison.  First and foremost, there is always the risk of being shanked with a very, very sharp toothbrush.  For the financial criminals, there is the distinct shame of being bested by Bernie Madoff in a game of badminton.  This is to say nothing for the fable of being made someone’s bitch. But what about a lack of porn?

Connecticut’s prisons were very tolerant of pornography in its prisons until recently. (source.)  Now that the Connecticut prisons are pulling the plug on this entertainment, the inmates are threatening to sue.  This is not isolated to the Northeast, either, as a Michigan man filed suit over a guard’s refusal to provide him with pornography, claiming the guard’s action violated his constitutional rights. (source.)

Not to put too dull of an edge on it, but prisons can basically do what they please to inmates. Correctional facilities have staked out the lowest standard of review available under law.  Prisons can enact policies that run counter to prisoners’ First Amendment rights as long as the regulations are rationally related to a legitimate penological interest, a standard that has consistently led to judicial affirmation of anti-pornography policies in the big house. Thornburgh v. Abbott, 490 U.S. 401, 413 (1989); Smith v. Dept. of Corrections, 219 Or. App. 192, 198, 182 P.3d 250 (2008).  In contrast, the next-lowest standard of review – and generally the lowest for non-prisoners – is rational basis review, where a government action must be rationally related to a legitimate governmental interest to be constitutional (and intended as such – no post hoc analysis is allowed).

Courts review a prison’s limitation on the inmates’ First Amendment rights by using the three-prong reasonableness test enunciated in Thornburgh:

  1. whether the governmental objective underlying the regulations at issue is legitimate and neutral, and whether the regulations are rationally related to that objective;
  2. whether there are alternative means of exercising the right that remain open to prison inmates at de minimis cost to penological interests; and
  3. the impact that accommodation of the asserted constitutional right will have on others (guards and inmates) in the prison

490 U.S. at 414-18 (citing Turner v. Safley, 482 U.S. 78, 85 (1987)); Owen v. Wille, 117 F.3d 1235, 1237 (11th Cir. 1997).

As seem in prong 3, rehabilitation interests of prisoners are not all that may be, or is, considered when evaluating these policies.  Courts have found that preventing the harassment of employees who work in the prison is a valid justification for a limitation on sexually explicit materials among inmates. See, e.g., Mauro v. Arpaio, 188 F.3d 1054, 1059 (9th Cir. 1999).

The reach of these policies has been broad. In Washington v. Werholtz, 2008 WL 4998689 (Kan. App. 2008), the Kansas appellate court upheld a policy that banned all sexually explicit material, which included any display, actual or simulated, or description of a variety of acts, including intercourse and masturbation.  While such a policy will cover Larry Flynt’s oeuvre, it will also ban trashy romance novels and some important works of fiction, such as L’ Histoire d’ O.

As long ago as 1989, Iowa grappled with this issue, which made its way into the New York Times.  Under Iowa’s policy, only inmates who had been psychologically screened and approved to view the material – with prisoners whom prison psychologists believed would be obsessed with the material being denied access to it. (source.)  The policy drew a bizarre distinction between how various forms of pornography were treated; inmates who could view porn were allowed to keep “soft-core” content in their cells, while hardcore content was only viewable in a well-supervised reading room.  One then-inmate complained that the reading room was impossible to enjoy under this policy, as the guards filed through the area as if it were a freeway – denying him any privacy in which to evaluate the materials.

In 2006, Indiana instituted a similar policy.  The Indiana Commissioner of the Department of Corrections previously explained that state’s pornography prohibition as something in the interest of both inmates and facility employees.  The Commissioner’s explanation appeals to stay at home moms everywhere, exempting medical and anthropological instances of nudity, but adopts an “I know it when I see it” definition of pornography. (source.)  Ultimately, Indiana’s restrictions amount to subjective, content-based limitations determined by what individuals find stimulating, as opposed to some objective standard by which the content can be evaluated, such as penetration. (Id.)

I strongly disagree with these policies.  While I have not been incarcerated in prison, I question the harmful effects pornography can have on its inmates, and am deeply troubled by the broad sweep that these policies can have – swallowing up non-explicit materials that have considerable value.  While prison exists to deny agency to its inmates, one cannot help but wonder if these policies beg the question about pornography’s supposed harmfulness.  In fact, research shows that more porn = less rape.  While there are other covariants at play, as everyone who has read Freakonomics knows, the results of isolating pornography and analyzing the porn-rape relationship have been in porn’s favor.  Beyond rape, the gratification of pornography may replace or inhibit other criminal or undesired activities as well.  In short, the premises that prison guards’ penological interests rest upon – that porn is bad and makes people do bad things – are beginning to be proven as bullshit.

When I debated the Indiana commissioner on Fox News, his rationale was to “promote public safety in Indiana.” Give me a break. Is Mary Homemaker “safer” because a convict doesn’t have a porn mag? He also stated that he wanted to see his prisoners devote their time to more constructive pursuits. This being Fox, I didn’t get a chance to cross examine him, but I presume he didn’t mean ass-raping one another. The biggest load of bullshit he slung was the meme that prisons need to ban porn because they want to promote a non-harassing environment for prison guards.

Seriously? You want to be a prison guard, but you can’t handle the sight of a guy reading Hustler? I got news for you if you’re “offended” by the sight of a guy jacking it to porn — you can’t handle being a security guard at a candy store, let alone being a prison guard.

The rationale for these bans clearly has nothing to do with “safety,” and it has nothing to do with the feminist-imposed “hostile work environment” bullshit. It has to do with an erotophobic attitude, fostered by superstition, and then fertilized with the crap of cheap political points.

Nonetheless, prisons have erected a high wall around themselves, their guards, and their asinine policies.  In a way, it is logically consistent for an enterprise that exists largely as a consequence of unjust and counterproductive policies such as the war on drugs to have special legal protection allowing it to further screw the people entrusted to its care. See Thornburgh, 490 U.S. at 407 (describing moden prison administration as an “inordinately difficult undertaking”).  As such, challenged to these policies, however well deserved and meritorious they are, seldom succeed.


Brazil denies reality, considers banning racy lingerie ad

September 28, 2011

By J. DeVoy

It has not been a good week at Tom Brady’s house.  First the Patriots lost to the Buffalo Bills, perennial failures and four-time consecutive Super Bowl losers, and now Brady’s better half, Gisele Bundchen, might have her ad for an intimate apparel company banned in Brazil.  Sure, she probably got paid already, but it doesn’t auger well for repeat business.

Naturally, feminists are to blame.

Brazil’s Ministry for Women called Wednesday for the suspension of a television ad featuring lingerie-clad supermodel Gisele Bundchen, saying it reinforces the stereotype of women as sex objects. (source.)

On one hand, the Latin world is very machismo and I can see why this would be a concern in some areas.  To the extent women want to work, they shouldn’t have to face constant degradation and criticism.  Although, if they don’t  have to work, that seems like a pretty sweet deal.  I’m still looking for my sugar momma so I can strike out “Have Career” from my calendar for the next 40 years and replace it with something like “do Ketamine and watch Dr. Who.”

On the other hand, it’s an ad, and sex sells.  Sex especially sells lingerie, which exists to encourage sex in the first place.  You can’t really divorce sex from this product unless you have Ben Stein deliver some kind of monologue about the undergarments’ erotic qualities.

The TV ads [depicting Bundchen in lingerie and heels as she explains to her husband that she wrecked the car, exceeded her credit limit, etc.] send a message “that sensuality can melt any man” and “encourages Brazilian women to use their charms… to minimize the reactions of their husbands,” the ministry said. (source.)

Point of information: This is true.  Does anyone seriously dispute this?  One can still be “equal” and play to their strengths.  in fact, this is the kind of approach we should be encouraging with women, as opposed to training them to rationalize every error to be someone else’s fault, and to charge into any disagreement as if it’s a contentious arbitration.  Know what the latter approach has made women?  Miserable.  Baking cookies for your husband before telling him you wrecked his credit is not that bad of a tactic for all involved.  As they say, if you’ve got it, flaunt it.

The Ministry for Women’s argument rests upon flawed logic, assuming that women must choose between “independence”  (which ironically entails working for someone else most of the time) or supplicating their men by acting sweet and feminine.  Both can coexist, and Brazil’s women will not have to choose between having long hair and soft voices or possessing any degree of self-sufficiency.

Economically, the suppression of beauty benefits those who lack it (whether absolutely or relatively).  It’s why middle-aged women hate their husbands watching porn, and obese girls chide skinny ones for looking “unhealthy,” telling their waif peers that they “should really eat a cheeseburger” — or four.  I can understand the desire to maximize one’s market position, especially when it’s held by only the most tenuous grasp.  But don’t gussy it up as being “for women’s own good.”  Just like every other charlatan who screams that some sweeping restriction of freedom is “for the children!” – or just “terrorism!” – the people pushing this agenda are full of crap, and nobody with firing brain synapsis should listen to them.


Two chicks making out…

September 26, 2011

…is apparently not allowed on Southwest Airlines. (Source)

It is allowed, and encouraged, on The Legal Satyricon.


Do you know who Ruth Orkin is?

August 19, 2011

By Tatiana von Tauber

Ruth Orkin's "American Girl in Italy"

Recognize this photo?

Ruth Orkin photographed it in the early 50’s after meeting another young woman, Ninalee Craig (the model) in Italy while traveling solo.  Together they attempted to capture the experience of traveling alone in Italy. 

Some have claimed this photo is a symbol of harassment.  While Craig claims it’s a symbol of having a “wonderful time”  (source), I think it’s more a symbol of the kind of power feminine beauty has in Italy – and not much has changed in 60 years.  In Germany guys don’t make gestures, in America construction worker comments have killed the romantic potential but in Italy and in France, there still exists a “romance-worship” to the female.  With that comes a level of sexualization, sure, but when placed into the correct context, it’s a turn on rather than any symbol of harassment.  This photograph is a compliment.

By default of existing we are looked at.  Where some see judgment other see compliment.  If more men weren’t afraid of being accused of sexual harassment when none was intended more women might enjoy the compliment of a whistle or two.  Attention isn’t always comfortable but no attention for too long makes for an old, bitter maid.


Jessica Valenti doesn’t understand the Streisand Effect

July 1, 2011

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).)


Grady Judd, at it again, in America’s Wang

June 16, 2011

By Marc Randazza

Following a three-month-long investigation of Theresa and Warren Taylor – Theresa being better known as “Kimberly Kupps” – the Polk County sheriff arrested them both on charges of promotion and distribution of obscene material.  The crime?  Creating pornography in their own home, then selling it both on their paysite and the popular distribution site clips4sale.com. (Source.)

Sadly, this is par for the course in Polk County.  The same Polk County where Philip Greaves, then living in Colorado, was indicted on obscenity charges for writing a book concerning pedophilia.  Let’s not forget the 15-year-old who was suspended from using the bus for three days after he passed gas on it.  And then there was the antique store owner who was charged with obscenity production for taking nude photos of willing participants – even if, at first blush, child porn charges may have been more appropriate.  Maybe I have Polk County all wrong and this is all the doing of dedicated gestapo fuckhead Sheriff Grady Judd.  But then again, Polk County is home to all the drooling, meth-addled retards who keep electing him.

It would be comforting to write this off as another Judd-ism, write a blog post about it, and put the incident behind me.  I don’t even live in Florida anymore; to hell with the place.  This case, however, goes too far.  Consenting adults, in the sanctuary of their own home, filmed themselves having sex — and by all accounts, the content they produced was pretty vanilla (e.g. no fisting, no watersports, no extreme bondage or BDSM, etc.).  In addition, the couple wasn’t exactly rolling in dough from this venture: by available reports, their porn activities brought in $700 per month. (Source.)
Enough for a few nice meals, sure, but not enough to finance a credible criminal defense.

Never one to let common sense or the First Amendment to come between him and a camera, Judd went to the press shortly after these arrests. Fox 13 had the initial interview.

“We want a wholesome community here, we don’t want smut peddlers,” Judd said, “and if they try to peddle their smut from Polk County or into Polk County we’ll be on them like a cheap suit.”

[…]

“They should heed the warning: If you engage in creating or selling obscene materials we are going to lock you up, and we enjoy that,” he said.

The profundity and wisdom of Judd is matched only by Yoda himself.  The last time I checked – I’m only a First Amendment attorney – “smut” is not a prohibited form of speech, much less a recognized category of speech.  Child porn is not protected by the First Amendment.  Nor is obscenity.  Smut, whatever the hell it is defined as, is protected by the First Amendment, as is everything not falling within the child porn and obscenity exclusions.  I’ll refrain from picking the low hanging fruit pointing out the hilarious irony of a peckerwood inbred like Judd mocking a cheap suit.

To Judd, this is a big game. He “enjoy[s]” when he can “lock you up.”  He’s not going to let a few founding principles get in the way of getting his jollies.  After a perusal of my prior coverage of Polk County affairs, I realized I’d left something unsaid that I want to say right now.

Grady Judd: fuck you.

And to the people of Polk County who enable this kind of bullshit for decades on end, fuck you, too.

When I’m not blogging, I’m busy running a law firm, Randazza Legal Group.  You may have heard of it; I have the privilege of defending bloggers, decorated war veterans and porn companies from attacks on their free speech rights.  I do not represent Mrs. Taylor or her husband.  I will, however, be making a donation to their legal defense fund.

I encourage everyone else who values free speech to do the same.  Inability to pay should not be a barrier to justice, especially in a case like this where the fundamental right to free expression is at stake.  Making only $700 per month from their adult business operation, Judd probably just expects the Taylors to roll over and plead guilty – quickly.  They shouldn’t, and we shouldn’t let them.  I do not know if this will be the case, but it’s time for someone to end Grady Judd.  Not to beat him, to ruin him.  To bescumber his legacy and make his name forever synonymous with the worst, most oppressive kind of home-grown terrorism that he’s inflicted onto the people of Florida, deserving though they may be, for decades.  I want him to have a forced, miserable retirement, and his children to quickly – in hushed shame – change their last names when he dies, to forever bury the shameful association.  It is long past time for Judd to be forced into the outhouse where he spends most of his time secretly thumbing through a crusty Fredericks of Hollywood catalogue from 1977, panting while doing so, forever. (Proverbially! rhetorical hyberbole ftw.)