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Doctor Liable to Patient's Sex Partner …
... for negligently (and erroneously) telling the patient he had tested negative for an STD.
Eugene Volokh | 7.18.2019 3:21 PM
So the Connecticut Appellate Court held Tuesday in Doe v. Cochran, by a 4-3 vote; you can read the majority and the dissent. Courts are split on this question (and its analogs), as pp. 11-12 of the dissent note. The majority notes that its opinion is limited, though it's not clear whether the limitations (e.g., to exclusive romantic partners)will remain tenable in future decisions:
[T]he duty that we recognize today … extends only to identifiable third parties who are engaged in an exclusive romantic relationship with a patient at the time of testing and, therefore, may foreseeably be exposed to any STD that a physician fails to diagnose or properly report. And the physician fully satisfies that third-party duty simply by treating the patient according to the prevailing standard of care and accurately informing the patient of the relevant test results. Whether there are other, broader circumstances under which a physician may be held to owe a duty of care to a nonpatient third party who foreseeably contracts an infectious disease as a result of the physician's negligence is a question that we need not resolve today.
I think the majority is generally right: To quote the Restatement (Third) of Torts:
An actor ordinarily has a duty to exercise reasonable care when the actor's conduct creates a risk of physical harm.
A doctor's telling the patient that the patient has tested negative for a sexually transmitted disease creates a risk of physical harm to the patient's sexual partners—it increases the likelihood that the patient will have sex with them, or will have sex with them without proper protection. (The STD here was herpes, which can be spread even if the man wears a condom, but apparently condom use does decrease the risk; also, herpes medication apparently reduces the risk of spreading the virus as well.) And the risk to the third party is certainly foreseeable.
If the doctor or the doctor's employees acted unreasonably—for instance (as alleged in this case), the doctor "misread [the] lab report," or the doctor "misinformed his staff member," or "the staff member misinformed [the patient]"—then they should be held liable. That's not some special new legal duty; it's just the basic duty that all of us have to act reasonably when our actions create a risk of physical harm to others.
The Restatement does note that, "In exceptional cases, when an articulated countervailing principle or policy warrants denying or limiting liability in a particular class of cases, a court may decide that the defendant has no duty or that the ordinary duty of reasonable care requires modification." That's why, for instance, most courts have adopted various so-called "no-duty" or "limited-duty" rules, such as the rule in most states that a social host who serves alcohol to guests can't be liable to third parties who are injured when the guests drive drunk. But I don't see a basis for imposing such a limitation here.
Eugene Volokh is the Gary T. Schwartz Distinguished Professor of Law at UCLA.
JesseAz
July.18.2019 at 6:08 pm
Medicine is not a 100% domain. These tests are statistical with false positive rates and false negative rates. Let's stop this bullshit of hiding medicine providers for bad outcomes that randomly exist. There's a difference between negligence and bad outcomes.
This is just a generalized argument of medical lawsuits in general.
James Pollock
There's a difference between having a test with a known error rate, with a test that produced an inaccurate result, and having a test that produced a positive result and telling the patient the test was negative.
TwelveInchPianist
"…the results were positive for genital herpes. The defendant delegated to a member of his practice staff the task of informing S of the test results. The staff member incorrectly told S over the phone that his STD test results were negative."
QuantumBoxCat
July.18.2019 at 10:25 pm
You can't quote a passage from the legal opinion in a post about a legal opinion! It's not fair to those who don't want to read and instead just want to say if it's not 100% infallible then no one should be responsible.
Maybe if there were a YouTube video or a tl:dr thqt I could understand, it would be okay. Otherwise, not fair.
Jason Cavanaugh
Poor guy should've argued for qualified immunity.
great Unknown
Unfortunately, for most STDs there is no immunity of any kind, qualified or absolute. Nature is not subject to the self-serving whims of our legal system.
[Eugene Volokh] Doctor Liable to Patient's Sex Partner … – Jehtro Lewis – Blog
[…] from Law https://reason.com/2019/07/18/doctor-liable-to-patients-sex-partner/ […]
Mississippi Gubernatorial Candidates Out-Billy-Graham-ing Each Other
Being alone with women is scary
Irina Manta | 7.18.2019 9:02 AM
First, Mississippi gubernatorial candidate and state Rep. Robert Foster refused to have a female reporter accompany him on a campaign trip, an otherwise standard practice. Not to be outdone, his competitor Bill Waller Jr., the former chief justice of the Mississippi Supreme Court, stated that he would not spend any time alone with a woman (who is not his wife) in a personal or professional setting. According to CNN, here's Waller's murky statement:
"I just think it's common sense. I just think in this day and time that appearances are important … transparency's important. And I think that people need to have the comfort of what's going on in government between employees and people. And there's a lot of social issues out there about that," Waller told the news outlet on Monday. He said his goal "is to not make it an issue so that everyone's comfortable with the surroundings and we can go about our business."
Waller told Mississippi Today that in his 22 years serving on the state Supreme Court, he never found himself alone with a female colleague.
This reasoning was similar to the one that Robert Foster had provided:
"I trust myself completely, but I don't trust the perception that the world puts on people when they see things and they don't ask the questions, they don't look to find out the truth. Perception is reality in this world, and I don't want to give anybody the opinion that I'm doing something that I should not be doing," he said.
Given Waller's statement that this has been his practice for many years, even the most creative minds won't be able to blame this one on #MeToo (they might still try with Foster, though). So how are we to understand these men's attitudes? Here are some possibilities:
While they would deny this as the reason, these men don't trust themselves not to misbehave around women. This should make them look bad to voters.
Their wives don't trust these guys around women. Voters may want to inquire why that is, and the reasons may well end up looking bad to voters.
These men don't trust women not to behave inappropriately toward them. Any women. This should make said men look bad to voters.
These men don't trust how journalists would present such interactions and/or they don't trust the public in how it would view Important Men spending any time alone with women. In other words, these candidates don't trust voters with something fairly basic. Why should voters trust them with much more important things?
If I was a voter in Mississippi, I would feel either 1) suspicious or 2) fairly insulted and stereotyped by now. I expect that individuals in that state are no less able to form judgments about human relationships than individuals anywhere else, even if their politicians apparently hold them in lower regard than I do. The exclusion of women from the same professional opportunities as men is a long-standing problem. Occasionally men express concerns about "what will people say" as a reason not to provide mentorship in a number of settings. This only becomes the reality if we let it become self-fulfilling–meaning, if interactions between one man and one woman are treated as inherently suspect.
Whenever I hear of stories like in Mississippi, or in fact ones where men did misbehave, I am reminded of how somehow none of this was a problem during my clerkship year. As it happened, I clerked for a Southern male judge (Judge Morris S. Arnold of the U.S. Court of Appeals for the Eighth Circuit) who had an all-female crew of three year-long clerks, one permanent clerk, and one administrative assistant. The fact that it was all women that year was coincidental, and most years it was a mix of genders, including with male majorities.
Never once did I think my judge acted inappropriately toward me. None of my co-clerks ever reported anything to me, either. Sometimes several of us spoke to him in chambers, and other times it was just one of us. Neither did that ever feel uncomfortable nor did anyone else think it was strange.
I have yet to meet anyone who speaks ill of Judge Arnold for any reason. He had (and I believe still has) a happy marriage with a lovely wife. If he could pull off healthy professional relationships with all his female employees in Arkansas over a decade ago, these Mississippi gentlemen could surely give it a shot in 2019.
Irina Manta is Associate Dean for Research and Faculty Development, Professor of Law, and Founding Director of the Center for Intellectual Property Law at the Maurice A. Deane School of Law at Hofstra University.
Show Comments (252)
mad_kalak
July.18.2019 at 9:14 am
Irina makes a huge mistake here in that it's not that the candidates are afraid of one particular woman or even women in general. They are not. They are afraid of the media and the men and women who "believe all women." So like a group of woman who go on a girls night out having a designated driver and mother hen, they are rationally weighing the chances and deciding it's worth it to be careful because the downside is so small.
Also, I would love Irina to opine on the Muslim practice of purdah.
Ben of Houston
July.18.2019 at 10:12 am
The Kavanaugh incident made this the most rational choice. The standard has dropped to "proof by accusation if you cannot prove that you never met". It doesn't even require a full accusation with a place and a date. This means they are having to prove a negative to avoid any and all accusations.
As long as there is one bad actor willing to lie (and there will always be many), acting defensively is coldly logical no matter what your opinion is of society at large.
Feminists are shocked, shocked, that when the metoo movement blew up, public opinion surveys showed men reported that they were less likely to mentor female direct reports.
OtisAH
Two things: Kavanaugh was not falsely accused, and Kavanaugh has a lifetime seat on the Supreme Court.
That sir, is a matter of opinion, and why the Pence rules makes sense, subjectivity.
Now that I've calmed down. Think about it. We have no evidence that the party happened. Nothing at all. What chance does a man have in a normal situation when he can be shown to be alone with a woman in a situation that at least definitely could have happened? The only logical solution would be to either always have a camera on or never be alone with a woman ever.
He was falsely accused at least 4 times. 3 of those, if memory serves are currently under incitement for perjury, and one was withdrawn. The final accusation, Ford's, has only a half-accusation on her part (missing a definitive when and where) while having no cooperating evidence that they were even at a party together.
That is a standard that wouldn't fly with any court other than a lynch mob. If you believe it, you are evil.
MarkW201
I am going to assume that by "under incitement" you actually meant to say "under indictment." I cannot find any report of any of Kavanaugh's accusers being indicted for perjury via the normal legal process (as opposed to being accused of perjury by a partisan political actor, something that has no legal weight). Which accusers are you referring to, and when and where were they indicted?
Brett Bellmore
They've been referred to the DOJ for perjury, and I see no sign that the DOJ took any interest in responding to the referral. So, no indictment, though based on the public record, they certainly opened themselves up for it if a prosecutor had felt like going after them.
Armchair Lawyer
Judy Munro-Leighton? You know the one who accused Kavanaugh, then recanted?
If you want a text book definition of "mansplaining" here it is.
Considering that it is concerning the thoughts of a pair of men and men in general, mansplaining is reasonable. It is the authors "femsplaining" that is offensive, as she is from a completely different culture from the men she criticizes.
Furthermore, she ignores one fact any small child knows. "Villains exist". That undermines all of her points about it being offensive to women in general.
Mainsplaining and being correct often have a significant overlap, if you were to create a Venn diagram (particularly in this situation).
Sarcastr0
Mainsplaining and being correct often have a significant overlap.
I'll take that as a complement.
LiborCon
You simply replace the word "explaining" with "Mansplaining", so you can make even the act of explaining something sexist.
Did I mansplain that right or do I have to dumb it down further so a feminist can understand it?
The number of guys here who aren't super clear on what mansplaining is but would like to comment confidently about what they think it means anyhow is highly amusing.
jubulent
The number of men here mansplaining the term mansplaining is worryingly high.
It's just another biased nonsense word created as a substitute for argument. Like 'manspreading,' 'assault rifle' and 'high capacity magazine.' When you can't justify saying something is bad with real words, you use the nonsense words. Saves you the humiliation of being proven wrong. Or even having to know what you're talking about.
It has a definition. You're not using it. And then you call it a nonsense word because it never happens.
Look up the meaning. LOL.
I hope you realize you've become an ignorant parody. just because someone makes up a term, it doesnt mean that term has any value. For example, you're the definition of a cuck.
But if you're going to use that term – especially this term – don't misunderstand what it means.
Yeah, it has a definition. "the explanation of something by a man, typically to a woman, in a manner regarded as condescending or patronizing."
In other words, all it means is a man explaining something when somebody else would prefer they didn't.
The entire concept is still more evidence that feminism is a fiendish plot to sabotage women.
I mean seriously, what the fuck?
"Don't you dare refuse to meet with women alone!! And when you meet with them, for god's sake, don't ever explain anything to them!!"
I mean, are women trying to get us to not take them seriously?
I'm sure sometime soon we'll be seeing a news item, "Men reluctant to explain things to women after being accused of "mansplaining".
And women will be all like, "How dare they!"
You okay?
Well, clearly not, if I think the concept of mansplaining is bullshit, amiright?
EscherEnigma
The Billy Graham rule long predates any current event. The cause-effect you propose obviously cannot be.
While the rule itself predates current events, current events have shown the wisdom of the rule, and encouraged its increased use.
If I were a voter in Mississippi then all other things being equal, I would probably vote for someone who tried to follow the Billy Graham/Mike Pence rule over someone who didn't simply because they are less likely to find themselves being falsely accused in an era in which just the accusation of impropriety can be enough to derail someone's career. Kavanaugh was slandered with false accusations in order to make the process as painful and punishing to the nominee as possible so that he'd withdraw and delay any future nomination until after the midterm election where Democrats hoped that they might be able to retake the Senate. McCain was falsely accused of having an affair with a lobbyist on the front page of the New York Times after he secured the Republican nomination for President. So yeah, false accusations is something that the Left does and will continue to do so long as they think it will work. Denying them the opportunity to do so is just the smart thing to do.
Rev. Arthur L. Kirkland
You are ignoring the likelihood that a right-wing prude is gay.
Michael Masinter
Forget it Jake, it's Mississippi.
apedad
Do these Billy Graham-style candidates also avoid being alone with homosexuals?
I'm sure you think that is a witty comment. I assure you it's not. To respond, though, I'm sure they never ask if someone is gay or not, though if the fellow is a poof they might naturally avoid one another.
Let me ask you, then, has there been a problem with gays accusing straight men of hitting on them or making unwanted sexual advances? Some sort of Kevin Spacey situation?
If a "straight" man is hitting on another guy – he's not straight. And yes – there are plenty of examples of people in power abusing their positions to get sexual favors. And more often than not its a man.
So, in your opinion, to respond to apedad's point, a straight man likely need not worry about being alone with a gay man (or vice versa). Thus, apedad's attempt at a dig falls flat on multiple levels.
If a straight man is worried about women making up stuff, might as well be worried about men making up stuff. m_k. The fact that this isn't as much of an issue points to another cause than just worrying about perception/perfidy.
And I suppose that when false accusations of homosexual sexual assault become as common as false accusations of heterosexual assault, we'll all have to go about wearing collars with recording devices 24/7.
But I don't see that as likely, because the demand that a woman's accusation be treated as automatically true is just that, a demand concerning women's accusations. It's rooted in radical feminism, and homosexual men don't get the advantage of it, and aren't likely to.
You are assuming that false accusations of heterosexual assault are common. Which is begging the question.
Also, i'm not even sure accusations of heterosexual assault are all that common regardless of their truth value. More common than a decade ago, but I'd need to see some proof they are more than anecdotally common. i.e. just like homosexual accusations.
"You are assuming that false accusations of heterosexual assault are common."
Yes, I do actually pay attention, thanks for noticing.
Not like you to make anecdotes the author of your reality. Wait, nevermind – using anecdotes to build a narrative you mistake for reality is your thing.
Vast majority of sexual assault claims are never prosecuted. The only way you get a small number of false accusations is excluding the population where the D.A. has no evidence.
Why ate you so ignorant about literally everything?
I'm going to assume you posted this before dismissing my link further down the page?
" I'd need to see some proof they are more than anecdotally common."
Here you go, from RAINN, and anti-sexual violence group. Only about 2% of allegations are proven true.
This is when the idiots will ask you to prove them false instead.
DodgerBobH
Unrelated in any way to this argument, I applaud Sarcastr0's appropriate use of the phrase "begging the question." It's misused an awful lot.
SimonP
It's so interesting to me that you're thinking about it only from the heterosexual male's perspective.
As it happens, gay men (or men who are only perceived to be gay) have historically been accused of sexually harassing or abusing straight men, quite often. And yes, the straight men lobbing those accusations are typically believed.
"….quite often."
Where do you get that?
"Let me ask you, then, has there been a problem with gays accusing straight men of hitting on them "
Why would anyone assume a hard-right, Bible-thumping, socially conservative Republican politician is not a closeted gay man?
Other than ignorance and lack of familiarity with history, that is.
Still waiting on some sort of a list, Rev.
Bob from Ohio
"Billy Graham-style "
Billy Graham was the most admired American for decades. You [and Manta in the original post] use him as a sneer. I can assure you that his name is not a sneer in Mississippi.
It's called "The Billy Graham Rule," you putz.
That may help to explain Mississippi's deplorable condition.
It was more likely the 150 years or rule under Democrats prior to the mid 90s.
Snorkle
Can't speak to Graham or these virtue-signaling snowflakes, but Falwell certainly didn't avoid being alone with Giancarlo Granda.
Potiphar's wife is unavailable for comment.
John Meuser
I believe you're wrong in your judgement here. This is a fairly common (if old fashioned) practice in rural conservative parts of the country. My dad follows this practice himself. It's not about not trusting themselves or other women, it's the fact that when you live in a rural area where everyone knows everyone else, gossip can be something that can ruin your reputation very quickly. Avoiding even the appearance of opportunity of infidelity is a powerful way to avoid such gossip.
"when you live in a rural area where everyone knows everyone else, gossip can be something that can ruin your reputation very quickly. Avoiding even the appearance of opportunity of infidelity is a powerful way to avoid such gossip"
Getting an education, developing marketable skills, showing some character and ambition, and leaving the can't-keep-up backwaters would be a better plan.
What if someone grew up in a rural area who has marketable skills, has character and ambition, and decides to stay in the hometown to, I dunno, make it a better place?
Should blacks kid leave the ghetto? Do hispanic kids need to leave the can't keep up barrio?
C'mon man, where the originality in your act. Drop your pants, get some laughs at least.
Can't have a reason thread without the racism.
I know, Rev is pretty racist isn't he.
My dad is a successful large scale farmer. How would you suggest he do this outside of a rural area?
by razing, say, San Francisco, plowing it, and planting it. Which would be a massive improvement. And it comes with its own fertilizer.
From an office in a city. Most "farmers" these days never step foot on a farm.
So, if that's the case, these "farmers" better be able to get their tractor to connect to the internet. 😉
What a bizarre comment. I don't believe you know anything at all about "farmers."
Do you think the guys at the CBOT trading desks are farmers, or something? 😀
I believe you're wrong in your judgement here. [Goes on to cite rural practice with little relevance to the present examples or stated rationales.]
I believe you're wrong in your reasons here.
How many revelations by right-wing politicians who turn out to be closeted gays will be necessary before these rubes strt refraining from being around men, too?
Please provide a list of prominent right wing politicians who turn out to be closeted gays. Note, just because a man is not out marching in a Pride parade, it does not mean he is in the closet.
All I can think of is the former Speaker of the House from IL (maybe), but was he in the closet? The toe tap guy (Larry Craig) who got busted at the airport? Please exclude Lindsey Graham, nothing but unconfirmed rumors about him, and if someone had something on him, he would have come out by now.
Á àß äẞç ãþÇđ âÞ¢Đæ ǎB€Ðëf ảhf
Memory says there have been several; common enough that it no longer catches my attention, like that spate of preachy types caught visiting hookers and having affairs a few years back.
No references, because there have been too many to bother remembering. You may as well ask me for global warming alarmists who travel by airplane to conferences decrying air travel.
I dunno, if someone makes a claim, and you ask for evidence to back it up, and they are unwilling to provide it, that kinda makes their claim weak, does it not? Your response of appealing to the trope isn't evidence either, but a boomerang of balsa.
Your proof was absence of memory, which is hardly convincing either.
As a news junkie, I've got a pretty good memory for these things. You think pulling up the name Larry Craig happens on accident?
And I'm from Missouri, the "show me" state. Extraordinary claims require extraordinary evidence, which is somewhat lacking Rev's assertion. You're more than welcome, like a tag team WWE match, to help him out if you'd like.
Standing by….
Extraordinary claims require extraordinary evidence, but this isn't an extraordinary claim.
But here's a list. I found in in five seconds on Google. And since it was never "confirmed", that one doesn't even include J. Edgar Hoover.
Not to mention that when you get to non-famous folk, the "anti-gay bully in high school who came out years later" isn't that uncommon a guy.
No, it is an extraordinary claim based on the quantity by which Rev was saying it occurs. I never doubted it happened, moreover, I gave at least two examples of occurrences.
Rev made the claim it happens all the time, but then when he provides a list, gives 14 names going back 82 years. That's not a lot of occurrences.
So, if you're saying the exception proves the rule, you've not even proven the rule itself to use the exception to it as proof of it.
Google "conservative politicians who were closeted gays" and you get your choice of countless top-20 lists. You can even specialize with something like "18 homophobic leaders who turned out to be gay or bi".
Give it a try and develop a new life skill with your mastery of the Google internets……
Noted. So I will do your homework for you. *sigh* I did a DuckDuckGo search with your term.
Top 20. Boy, that's sure a lot then. Many in that Ranker list (#1 result in my search) are not politicians. Rev must be right when there is a whole 20 of them over the last 20 years or so years, which is about as far back as that list goes.
The NewNowNext #2 result goes back to the 1970s with overlap with the #1 result in terms of names. And some of those politicians are small town mayors. Gotta dig really, really deep for that top 20 list. It isn't even Buzzfeed list status.
#3 result is from HuffPo, again with overlap, listing the same names frequently, and it only goes 17 deep.
Confirmation bias much? Care to try again?
You're sure going out of your way to deny what seems to be pretty common knowledge.
You're trying real hard to deny the scarcity of the event in question. It's common knowledge that the Space Shuttle crashed twice, but Space Shuttle crashes don't happen very often.
"Please provide a list of prominent right wing politicians who turn out to be closeted gays."
I generally oppose performing basic research for right-wing rubes; how are they to learn if their betters are always spoon-feeding them?
But here are a dozen examples you claim to have missed: Bob Allen (Florida), Roy Ashburn, Bruce Barclay, Robert Bauman, Richard Curtis, Mark Foley, Phil Hinkle, Troy King, Edward Schrock (Virginia), Ralph Shortey, Jim West, Steve Wiles.
I'll add these names as a bonus, just because: Randy Boehning and Wes Goodman.
Here is a another head start if you wish to become informed.
Ah, so your supposed proof is actually evidence of rarity. You list 14 politicians with careers going back decades upon decades, in one case to 1937. I didn't look up all of them.
My good friend, statistics, clearly shows me that, even if all 14 of them were politicians that were in office today, that it's not common.
Back of the envelope, let's assume that half of senators/congresscritters/governors are Republican (generally speaking this is about where we are at most times). If all 14 were part of that list and in office over the past 10 years, that comes out to .004% of all Republicans in high office have had gay sex scandals.
Sorry bro, cool story though.
I humbly note, that I forgot to move the decimal over to places, that is .4%. Still, let's go back to 1937 then, 82 years ago, one of the examples given. If half of all politicians in high office were Republican, and there are 14 examples Rev gives, that means every year there is a 0.0583698% chance there was a gay closeted Republican sex scandal.
Never mind that in 1937, and indeed prior to 1980ish, virtually everyone, even liberals were in the closet.
Keep on denying. You'll convince more people that way.
Makes me wonder how crowded *your* closet is.
So, your only defense is to accuse me of being a closeted gay engaging in projection? That makes your blabber even funnier.
Hes the only one using actual facts dumb fuck. Maybe choose words more carefully. Maybe you should google the word common.
I provided a head start. Do your own research. Or drive to the nearest modern, successful town and ask someone there to do it for you.
Carry on, clinger. Until you are replaced, that is.
Jeff_Kleppe
If you ever want to see how liberals truly view homosexuals, look to how they treat closeted conservatives. If you ever want to see how liberals truly view racial minorities, look how they treat black and brown conservatives. There is no hatred like the left has for the groups they claim to represent.
I should also note for any new commenters here that while Rev. Arthur L. Kirkland purports to talk down to and malign conservatives, it is he who is hiding behind a pseudonym in order to express his supposedly "correct" opinions. His pseudo may be understood as directly equivalent to Antifa's use of black masks.
Yes, liberals are the real racists.
Not the party defending sending a citizen back where she came from.
I'm sorry, but between the accusations of treason, support of clearly false accusations of criminal misconduct, attempts to impeach him contrary to all evidence, support of active terrorist organization Antifa, and even actually calling for Trump's assasination, an off the cuff angry remark is hardly a new low in our national discourse.
This time it's the President of the United States, dude.
He didnt state to use force. Countries ar not races. He basically told her to put her money where her mouth was. Turn around the corrupt states she seeks to emulate before bringing corruption here. You did read the entire comments, correct? Oh, its sarcastro, silly question.
He didnt state to use force
He doesn't need to. He's the President of the United States riling up his base that someone doesn't belong because of their viewpoint, Jesse. You and I both know where that ends.
And what you're saying he was saying about go to the states you want to emulate? That's not what he said. Telling that you need to rewrite it in your head to make it more palatable to defend.
"Never once did I think my judge acted inappropriately toward me. None of my co-clerks ever reported anything to me, either."
Could that have been the luck of the draw, professor? What if you had been hired by Judge Kozinski? The 'clerks staying quiet' part might not have been much different, but the 'judge acted inappropriately' part could have been an entirely different matter.
Here's another possibility for these men's attitudes:
1. They read the New York Times article of July 1, 2017, reporting the results of a Morning Consult poll commissioned by the Times, in which a majority of women polled deemed it unacceptable to have dinner or drinks with someone of the opposite sex other than their spouses. Women also considered it inappropriate to have lunch alone with a member of the opposite sex by 44% to 43%. 38% of women polled felt that being in a car alone with a member of the opposite sex was inappropriate, and (of particular concern to me as an employer) one woman in four even felt that work meetings with members of the opposite sex were inappropriate.
Link to article here: https://www.nytimes.com/2017/07/01/upshot/members-of-the-opposite-sex-at-work-gender-study.html
Got a comment on this, Irina?
"Women are always right, except when they disagree with me, then it's internalized misogyny"
"If I was a voter in Mississippi"
But you are not. None of your four theories seem likely to be how a typical Mississippi voter views things.
This is just a "gorillas in the mist" post where the "sophisticated" foreigner observes the strange [to you] customs of the natives.
Noting that this behavior could not be a reaction to the #MeToo movement because it preceded that movement ignores an important reality. There are intelligent people of great foresight who can anticipate potential consequences well before most others. I find them mostly among conservative circles.
Smooth Like a Rhapsody
Did Clinton rape Kathleen Willey?
Did Kavanaugh assault Balsey Ford?
Your opinion on these questions will determine how persuasive you find this post.
Krayt
This is more like old-school where your kids (or tenants ALA Citizen Kane) need to keep the door open. It is an appearances thing, but because the door is open, it is "impossible" to fool around.
It is a guarantee to the parents or landlord (or voters in this case) that nothing could possibly be going on. Which is silly but there you go.
Because we all know what happened when Kane eventually closed the door.
He lost the election.
This is the most tendentious essay I've seen in Reason in some time, and that's really saying something.
WJack
Definition of tendentious:
"[M]arked by a tendency in favor of a particular point of view : BIASED"
I agree that this blog is not worthy of the Volokh Conspiracy.
It's a cold day in hell, but apedad and I agree.
Ossicle
Irina's analysis fails, she is too cosmopolitan to get this. In addition to the good points made by Meuser and Number 2, I'd add that these candidates' decisions will appeal to voters because they basically represent a "f**k you" to all the abrasive, snowflake women making dubious claims and ruining men's careers. And the f-u elides into other, related areas where men are getting shafted, e.g., Damore getting fired by Google for expressing obvious truths. There's a lot of suppressed anger over these things; these candidates are being politically astute.
"Politically astute" and "childish goddamn morons" are not mutually exclusive, sure.
bernard11
I don't understand how you can function in a professional setting without sometimes being alone with a woman.
Suppose you're a lawyer. Do you refuse to work on a case with female colleague? Do you refuse to met alone with a female client?
Do you never go to lunch with a female co-worker.
Truly bizarre.
"I don't understand" got that part right.
That's for sure.
There's nothing bizzare about it at all. In a world where you might have enemies willing to lie to take you down, and a woman's accusation is widely regarded as proof of guilt, the only real defense is making sure you always have an alibi.
Manta doesn't want to admit that's what is going on here: It's a defense against false accusations; A woman can't accuse you of raping her if you can prove you were never alone with her, so that you always have witnesses that it didn't happen.
Its not only bizarre – it shows a complete lack of maturity and blatant sexism on behalf of the male. I would not trust any male who said he couldn't be alone with a woman to walk my dog let alone be put in position of power where he has influence over public policy.
What's also bizarre that in 2019 people like you continue to defend this behavior.
Your attitude shows a remarkable lack of awareness of other people's world.
awildseaking
It's not bizarre in the slightest. Men and women are not the same. Men are larger, stronger and more aggressive. That's why most rapists are men and why it's different for us. It has nothing to do with our maturity or beliefs about women. The abuses of false accusations made by the sex(es) we sleep with to damage others require everyone to have an alibi all of the time.
Gay men and women are just as concerned about being falsely accused. It's about being alone with a potential sexual partner, nothing more.
"The CDC's nationally representative data revealed that over one year, men and women were equally likely to experience nonconsensual sex, and most male victims reported female perpetrators. Over their lifetime, 79 percent of men who were "made to penetrate" someone else (a form of rape, in the view of most researchers) reported female perpetrators. Likewise, most men who experienced sexual coercion and unwanted sexual contact had female perpetrators."
Scientific American story on CDC report on female rape
The guy isn't saying he can't be trusted to be alone with a woman. He's saying the woman can't be trusted to tell the truth about what happened while they were alone, so he doesn't dare risk what she might say later.
Only somebody who thinks they're privileged against false accusations due to being in the party that generally levels them could view that as an unreasonable stance for somebody in politics to take.
What a great working relationship. "
"I can't trust that this colleague with whom I'm working on this project/case/whatever isn't going to suddenly make a baseless accusation of assault."
Good cooperation there. Note that the rule seems to apply to all women at all times, including those you may have worked with for years.
How would you feel if a colleague of yours said he didn't trust you not to make a false accusation of some sort of misconduct? Because that's what this is about. It reflects a basic mistrust of all women. I mean, do you worry about a male colleague telling people you suggested that the two of you pull some sort of scam?
The issue is when the baseless accusations are believed, despite being baseless.
Let's draw an analogy for you, one which you may appreciate. A time ago, domestic servants used to be more common. Often, they'd take care of the children of their employers, as well as having their own children. And in general, most children were good. But sometimes, a particularly "clever" child would dislike a servant (or their child), for whatever reason. Now the child couldn't fire the servant. But, if they claimed to their parents that the servant (or their child) stole something of theirs….
The servant would be fired. The parent wouldn't question their child, there was no due process, even if the accusation was just he said/she said, the servant was gone. And the child gets their way.
Were all children like this? No. Most? No. But maybe a couple. Or maybe emotions or another issue hit, that just…pushed. But as a servant, they couldn't tell which was which. They'd be ultra careful…about all of them.
Oh woe is me – to live in this age as a White male when :
(1) The only racism is unfair accusations against snowflake butthurt White males
(2) The only sexism is unfair accusations against snowflake butthurt White males.
It must be a miracle that I've yet been crushed under this heavy yoke of brutal oppression. Sometimes I wonder how life would feel free of the relentless discrimination I suffer as a White male. Hell, it's a wonder I can keep a sense of humor…….
Spoken like a Girondin.
General observation : Snowflake butthurt white males are such drama queens. Sometimes historically erudite ones (I grant that), but histrionic melodramatic drama queens….
Thanks for the compliment, but I can't hold a candle to VD Hanson. But at the end of the day, though, all ya did was is just level an ad hominim.
This concept of "white fragility" is curious, because the whole concept of it was created by non-whites complaining about whites being racist, like it was they themselves who are "fragile." To play dime store psychologist, it's a massive projection problem.
No; I pointed-out your analogy was colossally absurd and ineffectual. I'm completely immune to fear of the guillotine, just as I am to most conservative pearl-clutching trauma.
I'm curious : What's the whole appeal of this silly victim-hood shtick anyway? Brother Brett above claims right-wingers are the only ones prone to this hysteria because they're the only victims. Whether fantasy or lie, that's clearly not true. Yet it's always right-types weeping and gnashing teeth over the extinction of the white male. Post after post here from snowflakes whining over the danger of being alone in a room with a women. Can't you see how pathetic that is?
Meh, you don't understand the analogy. The Girondins thought they were safe, they thought they could use the energy of the radicals for Revolution, but keep them in check and not take the Revolution *too* far. But the center didn't hold and they were purged. It doesn't have to be literal. Sheesh.
To answer honestly, though, the extinction of the white male stuff is overwrought, because white males are way to competent, on the whole, to not be valuable as a group to society. They will always be in power and wealth, to some large extent or another, because of intelligence alone, not to mention that women find white men attractive. Now, I hope you understand, though, that if one group is in charge for a long, long time (in Western Civ), that it is perfectly rational to not want to be displaced from the top of the hierarchy. That's just human nature, please tell me you can get that, at least.
As for the "whining"…that's where you misinterpret rational self interest in explaining why we are not acceding to the wishes of feminists as whining. Note, it's not men bitching about this Graham rule stuff, it's women like Irina "whining" that men are adapting to the new norm post metoo norm by looking out for number 1. Think of it like this, many men, even if they want equality between the sexes, are not willing to volunteer to go to the front and fight. That, again, is just human nature, and I hope you can understand rational self interest. If you can't, then there is no hope for anybody on this subject.
I understood your analogy perfectly, which is why I said it was wacko. There is no danger on my horizon of being swept away by the revolutionary justice you cringe trembling over. As long as I behave with a modicum of manners, tact, and decency there is a sub-atomic chance I'll be targeted by your fantasy feminist harpy medusa (though I bet she looks great in thigh-high black boots). Yes, there have been a few MeToo cases which seemed unwarranted – Aziz Ansari comes to mind – but the vast majority don't. Heads-up : Women deal with a towering Mt Everest-size pile of sh*t. That's where MeToo comes from, not from some ultra-Deep State conspiracy against snokeflake butthurt males, White or otherwise.
I'm glad your natural competency, value, intelligence, and sexiness frees you from much fear of the anti-White male jihad. Might you also take comfort from the fact that being from the "group is in charge for a long, long time" also has security value?
That's just a suggestion for your added peace of mind.
Lastly : It's not "rational self interest" when it's irrational posturing. You do understand how the two are mutually exclusive?
Aww, poor women, having to deal with life being tough. Like everyone else in all of human history. Not long ago, men and women just had to work pretty hard to get enough to eat.
So you think that the leftists don't eat their own? I'm afraid to inform you that it happens routinely, and I can't help your ahistorical ignorance. But let me give you an example from the opposite side of the aisle. You know how non-Trump Republicans are gone after, so are the moderate liberals? Well, take a look at what happened the the woman in charge of Planned Parenthood. Happens all the time buddy.
And I was talking about white men in general, being on the whole, competent and valuable and considered attractive. White women are generally as well, and since people naturally are attracted to their own kind, white people aren't disappearing from the face of the earth any time soon. But even you have to admit that there is a concerted effort to push white men from their (generally earned) positions in the dominance hierarchy.
David Nieporent
From this week's USA Today/Ipsos poll:
" Do you agree or disagree with the following statements? – People who call others "racist" usually do so in bad faith"
All respondents: 47% agree, 29% disagree.
Republicans: 71% – 3%
Independents: 46% – 18%
Democrats: 31% – 35%
Hell, even non-whites agree more than they disagree, 44% – 24%.
I can't speak for lawyers, but in the professional world, it's fairly easy.
You can't avoid, say, being alone with a woman on a elevator without looking strange by stopping to get off. But it is actually fairly easy, to avoid being alone with a woman elsewhere. Always leave the door open to your office for starters.
A female colleague ask you to lunch? Suggest that X from accounting tag along (even if it is another woman). Always bring a co-worker for a client lunch. If the co-worker is a woman who is meeting the client with you, then you say "meet you at X restaurant." Also, you always bring your significant other to those after work get togethers, and avoid the spontaneous ones, saying that you have family obligations. If you go to the holiday party at least, people don't think your anti-social. And these days, less and less people want anything to do with their coworkers after work hours.
Emails – stay strictly professional as these are archived. Instant Messenger gets tricky if a co worker starts flirting, as this is not archived, but because it is not face to face, just say you have a phone call after short spell.
Bored Lawyer
Yes, you reveal your ignorance.
I have been doing this very thing, which for me as an Orthodox Jew is a religious requirement. (The Talmud ascribes this to King David.) And yet somehow I managed to function as a lawyer for 20 years, in the process having my name published as counsel on some 50 published decisions in my area of law.
in the process having my name published as counsel on some 50 published decisions in my area of law.
Weird. I checked "Bored Lawyer" in Westlaw, but didn't find you.
Check out the special "Boring" database. 😉
King David an authority on sexual morality?
He paid for his sins. Did he write the rules before or after he send the man to the front to get killed hide the cuckolding though?
Well, good for you, but it might help progress the discussion if you could explain what you have done in situations where other lawyers might be alone with someone of the opposite sex.
Have you ever mentored a female associate? Worked for a female partner? Worked closely with only a female associate as the only junior on the matter?
[I am assuming you're a male. Just a guess, but the sexes would obviously be reversed if not.]
Is this one of those legalistic things where, if you're in a semi-enclosed space that is continuous with other open air spaces where there might be other people, you're not "alone"? So you can have a private discussion with a female in your office, as long as the door is open a crack on a hallway that connects with your secretary's desk down the hall?
Yes to all.
Don't know what you mean by "one of those legalistic things." If you are somewhere where the door is open and anyone else (a secretary, another partner or associate) can just walk in, it is not a problem. That is always the situation in the day time — others walk into my office from time to time without asking. The fact that someone can come in at any time is an obvious deterrent. (Same applies to an elevator. They can stop at any time and someone can walk in.)
It is really not hard to do, if you use common sense and discretion.
Don't know what you mean by "one of those legalistic things."
What I mean is whether you have to employ somewhat attenuated reasoning to reach the conclusion that you're in compliance with the underlying prohibition, formalistically rather than functionally. Based on what you've said here, you can be alone with a woman, in an office with an opaque, closed door, on an office floor where no one else is actually then known to be, so long as the door is unlocked, you have an "unannounced entry" policy, and there's a non-trivial chance that someone might be on the floor at any time during your meeting.
Most people would just call that "alone with a woman."
And what about lunch?
I mean, there might just be the two of you at the table, but in a restaurant.
What's the big deal with that?
Do you drive to the restaurant separately or together? Once there, is all conversation strictly work related? What are the chances that someone will see the two of you together, even across a table, and think that you're buddy-buddy enough to go to a sit down meal together….which is what people do on a first date.
Do you consider a lack of a sign of success, as a lawyer, if female associates are not mentored?
It depends on whether you think of lawyers as businesspeople.
I'll be honest, and say that I don't know what you mean. If it means what I think it means, then I would say lawyers as professionals can have a successful career and worthy career and never mentor a single woman ever. This could whether on purpose or just accident of fate, that no woman (due to self selection or when he was a lawyer, not many female laywers pre-1970s) ever crossed his path.
Sorry Irena,
We live in a world today, where weak sexual allegations can destroy a career in politics. The case example of Matt Dababneh in California is a good example. It's very much worth a read. It doesn't matter if the story shifts. It doesn't matter how many witnesses are on the other side. A weak allegation, sometimes for political gain, and your career is done. There's no effective defense, not alibis, not character witnesses, nothing. Except maybe "I'm literally never alone with a woman who isn't my wife".
And that sucks for women in general, if they can't ever be with a male mentor in a non-public situation. But if these weak allegations by a handful of women are forcefully acted upon, despite their weakness, despite any defense a guy might offer…. A guy has to make a choice. Risk his career, or make a policy choice that avoids that risk.
IamtheBruce
Hadn't ever heard of Dababneh, but here's another example for you: https://www.thecoastnews.com/burgan-to-serve-two-days-in-jail-for-false-accusation-against-phil-graham/
Larvell Blanks
You're leaving out option 5, which is probably closest to the truth — they don't want to be the target of false accusations like Kavanaugh or Clarence Thomas, and if they are, they want their defense to be believed.
Neither one of those men was falsely accused. And both of those men sit on the Supreme Court.
That, sir, is a matter of opinion, and thus you perfectly illustrate the reason why the Pence/Graham rule is not such a bad idea.
As for Kavenaugh, it's hard to expect a high school kid to abide by it, because so much of a male's time/energy at that age *is* to get a girl alone!
It really isn't.
If two masses of people have differing opinions upon examining the same data, and there is no objective way of observing the true reality, then, indeed, it's a difference of opinion.
I take it you're not a positivist then. Your Solipsism is noted though.
Neither Thomas nor Kavanaugh was falsely accused. We have two perjurers on the Supreme Court.
Based on what evidence, pray tell? You confirm the point that a man has to act to prove a negative in these cases, as these women are believed with nothing at all to support the claim.
So I take it you mean, when you say, "based on what evidence?" you mean other than the sworn witness testimony of the putative victims. Anything else you want to categorically disallow as inapposite, so as to more easily entrench your own evidence-less presumption of innocence?
Even given the sworn witness testimony, all of which in Kavenaugh case was, to put it loosely, about a firm as wormwood, then you admit here though, that if he had followed the Graham Rule, he wouldn't have been accused, or, that there would be more than one witness.
Plenty of evidence that Kavanaugh perjured himself during his appeals court confirmation hearing, and note that whatever th strength of the evidence presented in the Ford matter, Grassley took care to railroad the nomination through without really looking any further.
It was a disgrace.
I think the whole "we like beer" contingent perfectly understands that Kavanaugh was lying – they just don't mind it because they felt the whole proceeding was bullshit. I wish they'd be honest about it instead of force the rest of us to play their doublespeak games.
Sure, some evidence you see that he perjured himself (maybe, maybe, not in my opinion, but okay)…but not that that he attacked Ford, who herself lied. There is no evidence of that, other than Ford's testimony, of dubious worth.
We were talking about the he said, she said aspect of this question, not what "boof" means or whatever you're citing.
So, there's a great new book out about the Kavanagh trial. It rather heavily implies that Ford perjured herself…extensively.
See, it seems that Ford was not exactly an angel in High School. Now, the Trump administration decided not to pursue that route. But, in hindsight, looking at the evidence there, and what Ford actually said….
Is that the book produced by two Federalist-Heritage-Olin-Bradley clingettes?
I thought the Graham Rule was roughly, "Don't socialize with women not your wife except in the company of others," not, "Don't drink irresponsibly and rape women."
Did it occur to you, that if you don't socialize in the company of women, then you wouldn't be drinking around them, then one would not drunkenly try to rape them (because they aren't around)?
The Graham Rule would not seem to preclude men from socializing with women in a party situation.
"So I take it you mean, when you say, "based on what evidence?" you mean other than the sworn witness testimony of the putative victims."
So… the accusation is evidence that it's not a false accusation?
A weak allegation,
Matt Dabebneh contradicts your entire argument. And that you had to pick him is telling that you have no way to refute what the author of this piece is stating.
Nice appeal to ignorance there with your strawmen about how these men think. How about addressing the elephant in the room: false accusations have serious political power in 2019. They will tarnish your reputation, destroy your professional network, and even cost you your job, your family, neighborhood, and life. You may even be jailed wrongfully only to be released decades later after exonerating evidence is presented. Yeah, I wouldn't want to be "alone" with women in a private setting either.
See my post above, and the New York Times article I linked to. These men appear to be behaving in a way that the majority of American women who want them to behave. Kind of galling for a woman to be criticizing them for doing what women apparently want.
I'm surprised no one has mentioned VP Pence, who got a lot of flak during the election for this very policy. It's easy for oh-so-cosmopolitan city slickers to sneer at quaint rural attitudes, and says more about the city slickers intolerance and lack of empathy, and their lack of interest in trying to understand anything outside their immediate area of expertise.
Also shows one of the worst traits of modern liberals: their contempt for others extends to discounting agency for others, and that they, the social justice warrior elites, no so much better what is good for others.
You're right; modern liberals should afford their rural compatriots the same kind of respect and deference they afford Muslims, Sikhs, conservative Jews, and their conventions of dress and intermixing.
oof!
MatthewSlyfield
"Here are some possibilities:"
Here's one you left off. They don't trust women not to make false accusations that would be very difficult to disprove without additional witnesses.
A woman is far far far more likely to avoid reporting an assault than she is to file a false one.
Note the difference between a Type I and a Type II errors, though, and why from a man's perspective, it doesn't matter if she is more likely to ignore it.
"Maybe" nothing. A woman is far far far more likely to avoid reporting an assault than she is to file a false claim.
So fucking what? False claims demonstrably happen. The #me too movement is doing everything it can to make it impossible for men to defend themselves against false claims. If they get their way, the only defense will be to avoid ever being alone with any woman.
Yes, false accusations demonstrably happen… in extremely rare instances. Of course, that's all some people, like yourself, need to declare that all claims are false. And your #metoo gibberish is just gibberish. Back to your daily pants-wetting.
"The purpose of this paper is to report the findings on the incidence of false rape allegations from a long-term study of one city's police agency. This investigation is a case study of one police agency in a small metropolitan area in the Midwestern United States. This city was picked because it offered an almost model laboratory for studying false rape allegations. False rape allegations were investigated from 1978 to 1987. A ranking police official notified the investigators whenever a rape charge was declared false and provided records of the case. In the study, 41 percent of the total disposed rape cases were officially declared false."
That study is a well known outlier, Brett. He classified as false reports allegations where the police told him an accuser had recanted.
Doesn't take a genius to see the flaw in that methodology.
"He classified as false reports allegations where the police told him an accuser had recanted."
Seriously? If it makes sense, any sense at all, to count allegations as true, then we have to treat recanted allegations as false.
Are you seriously proposing a rule where women's accusations are evidential, but their recantations aren't? If anything, recantations should be more reliable, they're 'admissions against interest', they lay the woman open to charges of filing a false police report.
Is anyone in these studies counting all allegations as true, though?
"That study is a well known outlier, Brett."
Outlier from what? Most studies assume allegations are true if they are not shown to be false. See here for and example.
The consensus of studies on the issue is Between 2 per cent and 8 per cent.
From YOUR link, TiP:
Kanin reported that 41% of 109 consecutive rape cases investigated by the police department of a small, Midwestern city over a 9-year period were determined to be false reports. Unfortunately, Kanin provides little information about the methods used to evaluate the police department's system for classifying cases. The study did not appear to employ a definition of a false report
He apparently used no systematized method for analyzing the police reports (e.g., a coding system) or any system of independent raters or coders to guard against bias. These are particularly
important limitations, given that the police department he was studying used procedures that are now specifically discouraged by the U.S. Department of Justice and denounced by the IACP. According to Kanin, the police department always made a "serious offer" to polygraph the alleged victim
So you claim, but there is not real way to back that up.
No one can possibly get a real count of "not reported" incidents, and to be fair on the other side, every reported rape that doesn't result in a criminal conviction should be counted as a false accusation.
KenveeB
Yes, but if you're a man who doesn't sexually assault women, you don't have any reason to worry about a woman avoiding reporting an assault. It has nothing to do with you, because you don't sexually assault women. So the question is not which is more likely, it's is the one that could actually happen to you a possibility? And if so, what can you do to reduce that possibility?
Kind of like even if prostate cancer is far more likely that, say, pancreatic cancer, I don't worry about the rates of prostate cancer because I'm a woman and it can't affect me. Telling me how much more common prostate cancer is doesn't change anything. I'm still going to be concerned with the one that might actually affect me.
Kenvee, you're conflating sexual assault, with unwanted advances, and other very gray area subjects. Just ask Aziz Ansari. Having a woman say "he promised me a job if I would s*ck his d*ck" would be all it takes to ruin a career, and no assault is involved.
Frankly, as a woman, I figure you'd be worried that some woman might do this to a male you are close too, like a brother.
Robert Beckman
That's only of interest to sexual assaulters.
Men who don't sexually assault women are concerned that they'll be accused of something they didn't do, not concerned about not being reported for something they didn't do.
And that's especially true if you think the people you're engaging with are inherently dishonest (and I wonder why a conservative politician might think that about a reporters…), increasing the risk of any false report. Then throw in a clear personal bias against them and their politics, and the value of a false allegation is tremendous.
I'm pretty sure even men who DO sexually assault women aren't scared of the possibility that they might fail to report it.
Rossami
A, so what. See Matthew's comment for more.
B, prove it. We have no good statistics on either the incidence of unreported assaults (if we did, they wouldn't be unreported) or the incidence of false accusations.
All it takes is one villain. You only need one, and the higher you go, the bigger a target you are.
Good evidence that Gary Hart was set up. And that could very well have led to a different president if the weak Dukakis/Benson ticket did not happen then. https://www.theatlantic.com/magazine/archive/2018/11/was-gary-hart-set-up/570802/
Gary Hart brought that shit on himself by inviting/taunting the press to look into the allegations, which were about adultery not assault. It's possible that if he'd done the ol' "That's a private matter between me and my family" two-step, which was still viable at the time, or the "I've been a bad boy and I'm sorry" soft shoe things might have turned out differently.
Shorter Irina Manta: Stop making it so difficult for feminists to use false accusations as a political weapon against you.
Shorter jubulent: I can't read.
Even shorter OtisAh: wrong.
Enjoying the unvarnished movement conservative commentary from the Conspiracy's carefully cultivated following, Prof. Manta?
Do you think she spends even 30 seconds perusing the comments? You've got a high opinion of the value of your input to this blog. Somin does a drive by now and again in them, Volokh himself is nice enough to clarify here or there, and only Bernstein actually engages.
Most of the value of my contributions involves demonstrating the hypocrisy, partisan polemics, misleading nature, and faux libertarianism of many Conspirator contributions.
That, and directing attention to the diffuse intolerance and ugly backwardness of many of the Conspiracy's carefully cultivated right-wing followers.
tkamenick
Take out men v. women for a minute. Change it to teacher and student. Do you think it's wise for a teacher and a student not to be alone together? Do you agree that being behind a closed door with one student is something that should be avoided? Do you think teachers are taught not to give rides to students alone? Now, do you think those rules/pieces of advice are given because they're worried the teacher will assault the student? Or something else?
Think through that and maybe you'll begin to understand why a personal policy like this isn't a sign that somebody is untrustworthy (untrusting perhaps, but such caution is generally a benefit).
Now, do you think those rules/pieces of advice are given because they're worried the teacher will assault the student?
The thing you're forgetting, however, is that those rules apply regardless of sex. If you refused to have a closed-door meeting with anyone, that wouldn't be a problem. Refusing them only to women, or only to Jews, or only to blacks? That is a problem.
[Irina Manta] Mississippi Gubernatorial Candidates Out-Billy-Graham-ing Each Other – Jehtro Lewis – Blog
[…] from Law https://reason.com/2019/07/18/mississippi-gubernatorial-candidates-out-billy-graham-ing-each-other/ […]
You skip a fifth bullet – These men don't trust others (including their political opponents) to take innocent events and interactions out of context in order to attack their reputations.
In skipping that fifth bullet, you display a distressing (and from your comments in the article, probably willful) ignorance of the number of false accusations and the damage they cause to the families of all involved.
I would agree that the exclusion of women from professional opportunities is a problem. It is, however, an inevitable consequence of the extremes of the #MeToo and "Believe All Women" phenomena.
I am glad you had no problems during your clerkship year. I will point out that you admit it was over a decade ago during a time when accusations were taken as just that – accusations pending evidence. I question whether your own clerkship would have been equally uneventful in today's climate of guilty-until-proven-innocent.
Lee Moore
She's just trolling, nothing to see here, move along.
But while we're on the subject of Republican politicians trying to minimise the target they present to the media artillery, why on Earth do some of them still give interviews without making and keeping their own recording ?
You're much more likely to be torpedoed by a sly edit than a Christine Blasey Ford. For one thing a sly edit requires much less effort.
I suspect a lot of them, at the federal level anyway, are suffering from a kind of Stockholm syndrome.
Or maybe the constant often gauzy claims of being taken out of context are more eyewash than truth.
That wouldn't explain the stupid failure to record the interview yourself; That's saved more than one interview subject's ass.
But it isn't a failing limited to conservatives, it seems to be universal. It just bites the left less often because they're usually being interviewed by allies, not foes.
Or, it is helpful to politicians to not have a second record so they can lean on media bias.
neoteny
None of my co-clerks ever reported anything to me, either.
Which means nothing: they could have been silenced by the trauma of living in a rape culture which is invisible to you on account of you being white & (presumably) cisgender.
Every week, without fail, I sit down and spend exactly zero hours, zero minutes and zero seconds worrying I will be falsely accused of sexual harassment or assault and rape. But then I'm an adult who treats women respectfully. Your mileage may vary.
Do you wear a seatbelt, even though to drive carefully?
I don't worry about it, either, but that's because,
1) I don't work in politics, so I don't have a target painted on my back.
2) I work in an open office, my job never puts me alone in a room with a woman.
Point 1 is by far the most important.
Add 3) you are not a student at a US-based college or university – maybe peer-level to number 1.
2 kind of implies 3, but, yeah. Glad I'm not in college today! We're strongly considering sending our son to study abroad, in no small measure to keep him out of the insane asylum American colleges have become.
All the conservative men here, some of the libertarian men: bitches be lying.
Feels backlashy; like a last gasp.
Subjective opinion. From the perspective of the OP, sounds like whining that she wants it both ways; men to not be jerks but non-jerk men not to worry about jerk women.
Yeah it's subjective – that's why I said feels.
Though your argument that it's unreasonable for someone to both not want to be sexually assaulted and also not want to be preemptively treated as the worst kind of liar is a trip.
It's called the Precautionary Principle. Think of it how you wish conservatives would act towards global warming. When one is not 100% sure what could happen, or what exactly is going on, so you take the worst case scenario and rationally act to mitigate it.
Taking the precaution of never fully trusting a woman doesn't quite sound like robust risk management.
Neither does the way liberals worry about carbon emissions.
Often, the disagreement between left and right is a matter of how we analyze risk. Liberals worry about being shot, thus they want to remove guns. Conservatives worry about being shot by democrats, so they want to be able to shoot back, and they worry about the government having all the guns. Liberals look to government and don't see a risk of tyranny as mush, so they don't worry about government having all the guns. etc. etc.
"Often, the disagreement between left and right is a matter of how we analyze risk"
True enuff, but then you follow up with a cartoon. Let's up the game, and I'll use myself as a example: I live in a large city with a poor reputation for crime. But though I reside in a so-so neighborhood and walk a mile to work & back daily (at every hour of day and night), there's little danger I'll be victimized; the heavy crime is focused in much poorer areas. And if those odds are small, the chance a gun will serve me any positive use is absolutely microscopic.
You want risk analysis? If people bought guns like they do any other tool – for the slightest possibility of real need – there would be millions upon millions less guns in circulation and the country would a much better place. Gun ownership in the United States is a psychological phenomena which has zero to do with "risk analysis". The same is true of paranoid overreaction to common sense gun laws – or your fantasy of shooting it out with the tyrant's black helicopters.
It's kind of funny : I don't think you could have raised a subject more disconnected from real mathematical odds and risk analysis than guns. Of course your fear of avenging harpy feminists comes in a close second. Why do right-types enjoy luxuriating in wild fears?
You seem to be ignoring the social cost of never trusting a woman the same way you trust a man.
The rule isn't "never be alone with a woman". It's "Never be alone with a woman not your wife."
So it explicitly allows you to trust a woman on at least some occasions.
Brett, you're not exactly helping your case here.
some of the libertarian men: bitches be lying
Some women become bitches by lying in a specific way: levelling false accusations.
The Twelve Tables, the oldest laws of the Romans, specified the death penalty for perjurers. But the execution happened in a specific manner: the convicted were flung from the Tarpeian Rock, which was named after a woman historical figure of Rome who betrayed the Romans to their Sabine enemies for the promise of material gain — but the Sabines killed her once she served her purpose for them.
So the issue is somewhat more involved than just being 'backlashy'.
The issue is more involved because of some Roman rock?
J Mann
I think the Pence rule is a little more rational than Professor Manta gives it credit for.
1. McCain got accused of having an affair with Vicki Iseman, with normally sane people like Kevin Drum arguing that McCain was denying the claims in the wrong way. Yes, a candidate could try to be alone with an attractive woman but not to be so familiar with her that people talk, but a bright-line rule makes it easier.
2. People have affairs. Even good people who trust themselves not to. Even people whose spouses trust them. If Foster promised his wife that he wouldn't be alone with a woman on the campaign trail (and he claims he did), I don't see how I can blame him. It's possible he's cheated in the past, but it's also possible that she's just worried and he reassured her.
3. One of my favorite law professors wouldn't meet alone with students at office hours with his door closed. (I found out when I began to close the door and he asked me not to.) As good looking as I am, I suspect that he trusted himself not to sleep with me.
With all that said, the easy solution for this would have been to bring a campaign volunterr.
Just Eric
The author makes some good points about treating women as a demographic rather than individuals. She could also add that individual men can make both valid and false assault claims against other men.
However, her comments on Judge Arnold remind me of what Judge Kavanaugh's clerks said about him. This reinforces the counterpoint that demonstrated good behaviour does not protect reputation if anyone is inclined to alter public perception through either fuzzy memory or outright lies.
BLPoG
These men don't trust women not to behave inappropriately toward them. Any women. This should make said men look bad to voters.
The author seems to have a poor grasp of probability.
It isn't that those men don't believe any woman could be trusted, or that they don't trust any women. It's that they believe there is a non-zero probability of untrustworthiness (or similarly applied expectation for your other examples), and that expected value of that probability times the payoff is very bad.
That's some seriously shoddy reasoning in this article.
Also, I totally used the right tags, but Reason's software is just so garbage that it embedded my non-quote comment as a second quote.
I totally used the right tags
Nuh-uh, you've copied the opening blockquote tag and forgot to add the slash. Like this:
1st blockquote but missing slash at closing tag
This intended as regular text.
The backlash against men not desiring to be alone with women is fascinating. If that's what a man decides to do, who really cares? It doesn't affect the women in any way.
If a man is willing to be alone with men but not women, that extra access might be unfair – men get to do the ridealong interviews and get extra time in a mentor relationship that women don't.
And to be fair, I've been a much better mentor to men than women. I'm willing to be alone with women, but if you spend too much time alone with any particular person who might be linked to you romantically, people will talk.
I mean, the number of people here who are pretty sure there are women lying in wait to entrap every man out of feminist spite is kinda troubling, even if it doesn't bloody my nose or pick my pocket.
But it sure does affect women. It creates an inequitable work environment when a guy can meet one-on-one with a boss or peer and a women cannot.
I've been to cigar-and-brandy events that had career equity where women were not welcome due to concerns of propriety.
"I mean, the number of people here who are pretty sure there are women lying in wait to entrap every man out of feminist spite is kinda troubling,"
Man, woman, whatever. Who would want to associate with someone who will automatically be believed if they accuse you of wrongdoing. This was a predictable consequence of the #BelieveWomen crap, no?
Judy Munro-Leighton?
Harvey Mosley
"…who really cares? It doesn't affect the women in any way."
It does deprive them of a possible false claim in the future.
Bingo. Manta is mad that Republican politicians are learning to dodge this particular attack. The left always gets mad when their victims adapt rather than remaining clueless.
Good lord is this paranoid telepathy.
This morning I stepped into my boss's office for a quick chat and then went on my way. According to the Billy Graham rule, this was "improper" even though I'm gay and she's sixty. Under this rule, her being promoted to her position was unwise, because the number of men she supervises makes a lack of one-on-one sessions a problem. For that matter, performance reviews with an employee (typically a one-on-one closed door chat, for privacy reasons) means that bosses must always match the sex of their employees.
A violation of the letter, but the the spirit, of the "law" if such a thing was ever written out to quibble over. I'm sure you know that we all get less sexy as we get older. Women of matronly age don't have to worry much about sexual harassment, and from straight people, neither do gays.
NolanLibertarian
Are you denying any and all possibility that either of them could be attacked for womanizing, in today's hostile environment, where such a charge is increasingly common?.
How often does ANY candidate for major office have a SINGLE journalist shadowing them? A journalist of ANY gender?
Leave the campus, and spend some time in the real world. Just sayin'.
I'm curious if the proponents of the Billy Graham rule would apply it to plumbers, AC repairmen, gardners and other blue-collar professionals who do house calls.
Is the plumber supposed to refuse a job if a woman's husband and kids are gone? Does the maid have to schedule around the husband's work hours? Can a car mechanic meet with a woman in his office to go over what he did?
Somehow I don't think those are the sorts of guys Billy Graham had in mind.
No, the Rule applies to people in high profile positions where enough people would see a benefit from taking them down, that someone might think the risk of a false accusation worth it.
In some cases, making false accusations can be profitable.
Haven't you ever heard of the cliche start to a porn movie, with the pool boy or pizza delivery man?
As a former blue collar professional, yea, you should be concerned. There is the realities of the marketplace though, and there are enough men, or women for that matter, who will take the risk because it *is* such a rare thing. But then again, blue collar plumbers have less to lose.
I take it, then, that you don't support police body cameras, since statistically, police misconduct is so rare?
BrotherMovesOn
"…every reported rape that does not result in a criminal conviction should be counted as a false accusation."
MatthewSlyfield, I realize that you have acknowledged in the past that you are not a lawyer, but I would hope even a layman would realize just how wrong this is.
A similar method is standard practice among gender studies folks and others who study false allegations. For example, here is a commonly cited study that claims that only 5.9% of allegations are false. But, they say,
"The determination that a report of sexual assault is false can be made only if the evidence establishes that no crime was committed or attempted. This determination can be made only after a thorough investigation. This should not be confused with an investigation that fails to prove a sexual assault occurred."
If this is a feasible methodology, there's no reason not to use the similar methodology that MatthewSlyfield suggests which would put the "true" reporting rate at about 2%.
"but I would hope even a layman would realize just how wrong this is."
Presumption of innocence.
TiP, I know you are a lawyer (and may or not be a gender studies folk) but such folk, as far as I'm aware, do not try criminal rape trials. The idea that a trial resulting in acquittal equates to a "false" accusation is absurd.
"TiP, I know you are a lawyer…"
To be clear, I am not a lawyer.
Upon re-reading, I may have missed your distinctions.
AmosArch
Waawaa. We turned relations between men and women into a pool of sharks and now the men won't jump in. You can have your power to destroy a man at a whim or you can have men comfortable with participating in society. Its one or the other ladies.
Kristian H.
As an officer in the USAF in the late 80s, early 90s, I was trained in OTS to never have a closed door meeting with a female subordinate. That, if necessary to "counsel" (discipline) such a person, get the first Sgt or section commander to chaperone, otherwise the door was to be kept open. The training emphasized the phrase "perception is paramount". That what others believe about you could be prejudicial to good order and conduct.
What's wrong with having a colleague or someone as a chaperone when you're dining or socializing with some person of the opposite sex? It doesn't strike me as all that difficult, though maybe there are just so many situations where unmarried men and women *just have to* be alone for totally essential reasons.
RestoreWesternHegemony
Anyone who believes Irina's crap or that Kavnanagh was guilty of anything is a liberal moron who shouldn't be allowed to vote. Women, especially single ones who think the most important "right" is killing their babies so they can let beta males penetrate them without protection, prove by their actions every day why they shouldn't be allowed to vote.
Don't pretty much all male OB/GYNs now require a female nurse to be in the room for all exams?
N.Y. Court Refuses to Enjoin Allegedly Libelous Speech About Chinese Official
The plaintiff, Yan Huang, is vice minister of China's Ministry of Housing and Urban-Rural Development. Defendant, Wengui Guo, who also goes by Miles Kwok, has been described as a "renegade Chinese billionaire," who fled China and now lives in New York.
From Huang v. Guo, 2019 WL 3206146 (N.Y. trial. ct.), handed down Tuesday by N.Y. Judge Shlomo S. Hagler:
Around May 11, 2017, defendant uploaded a YouTube video to his YouTube channel in which he alleged that plaintiff, is "a negative example of corrupt Chinese government officials." … The video accuses plaintiff of avarice, promiscuity—in particular, of sexual relations with other government officials—cronyism, and graft. The 25-page transcript which plaintiff submitted has a number of underlined paragraphs highlighting the alleged defamation. The complaint alleges "[s]ome of Guo's false and defamatory statements." For example, defendant states:
"In [then-vice-mayor Liu Azhihua's] bedroom, we found a secret. Mr. Liu likes taking naps at noontime…. Who regularly and most frequently appeared in Mr. Liu's bedroom half an hour before his nap? This person is … Ms. Huang Yan, from the Beijing Municipal Planning and Land Resources Management Committee…. After that, Mr. Liu would usually have sexual behavior with Ms. Huang. This occurred basically every time she visited. Accurately, each instance lasted 17 to 19 minutes, with changes in position."
Defendant also noted plaintiff's expensive taste, her love of Hermes bags, scarves, and accessories, and her valuable calligraphy and painting collections). The video asserts that defendant possessed tapes of these encounters and that he submitted them to Director Ling Jihua ("Ling") of the Central Commission for Discipline Inspection ("CCDI"), but that Ling told defendant to hand over all copies of the video to him and never mention their substance again. [Further factual details omitted. -EV]
The court concluded that plaintiff's libel claim could go forward:
[M]any of the allegedly defamatory statements appear not to be expressions of opinion or speculations as to plaintiff's future conduct. On the contrary, defendant went to great lengths to suggest that he was setting forth facts. With respect to plaintiff's activities generally, for example, defendant asserted that [t]here is only one person who would know the truth, and that person is me, Wengui." In addition, defendant asserted that he knew about plaintiff's affair with Mr. Liu because he once possessed videotapes which proved that the two were having sex….
Plaintiff acknowledges that she is a high-ranking official in China. [The defendant accused her of misconduct when she was director of the Beijing Municipal Commission of Urban Planning, and now she's Vice Minister of Housing and Urban-Rural Development. Thus, through her public office she has become a limited purpose public figure within the world of Chinese government. Plaintiff's lack of fame in the United States is not critical here, where (1) defendant posted the videos on YouTube, thus making them available to people worldwide, and (2) defendant posted his videos in Chinese and focuses on the alleged corruption in Beijing among officials, thus directing the videos to Chinese-speaking people concerned with that country's politics.
[T]he plaintiff alleges in the complaint that defendant "knew the statements made by him on above said video were false and misleading" and that defendant posted the video on his popular YouTube channel "maliciously for the sole purpose of impugning [plaintiff's] reputation and standing and casting aspersions upon [her]." … Plaintiff repeatedly states in the complaint that, at the very least, defendant recklessly disregarded both the truth and the substantial probability that plaintiff would be harmed by his statements. This showing is sufficient to withstand the pre-answer motion to dismiss the complaint [under the standards applicable to libel lawsuits by public figures, including as to punitive damages].
But the court held that an injunction was unavailable:
"Prior restraints on speech are the most serious and the least tolerable infringement on First Amendment rights, and any imposition of prior restraint, whatever the form, bears a heavy presumption against its constitutional validity" (Brummer v Wey, 166 AD3d 475, 476 [1st Dept 2018] [internal quotation marks and citations omitted]). Even "highly offensive, repulsive and inflammatory" speech cannot be restrained unless it "communicate[s] a serious expression of an intent to commit an act of unlawful violence to a particular individual or group of individuals" (id. [internal quotation marks and citations omitted]). Applying this principle, courts have found that "[p]rior restraints are not permissible … merely to enjoin the publication of libel." Plaintiff's complaint does not assert facts sufficient to justify such relief.
Free Speech Libel
[Eugene Volokh] N.Y. Court Refuses to Enjoin Allegedly Libelous Speech About Chinese Official – Jehtro Lewis – Blog
[…] from Law https://reason.com/2019/07/17/n-y-court-refuses-to-enjoin-allegedly-libelous-speech-about-chinese-of… […]
Stephen Lathrop
Applying this principle, courts have found that "[p]rior restraints are not permissible … merely to enjoin the publication of libel." Plaintiff's complaint does not assert facts sufficient to justify such relief.
It is a good principle—for a bygone era. It could be made a good principle again. But it is a bad principle under today's rules of internet publishing.
Prior to the the unwise decision by Congress to pass Section 230, comparatively little libel got published. A legal practice of holding publishers jointly accountable with contributors for any libels, meant private editors did the work of protecting potential libel victims. They did it almost entirely by preventing publication of defamation before it happened. Much of the prevention was accomplished by careful editing prior to publication. More of it was accomplished by simply not publishing false and defamatory factual allegations.
In that world, the principle against prior restraint made good sense. Far more likely than not, any would-be publication of potentially defamatory material had already been considered, and vetted, and vouched for by an editor with at least a bit of expertise on defamation—and a compensatory caution to make up for any deficiency in legal expertise. Second-most important, the editor had something to lose if his judgment was wrong. Most-important, the work thus done by the private editor precluded public demands that it be done instead by government, through censorship.
That private editing not only cut the volume of published libel to a tiny fraction, it also justified a legal presumption that anything restrained had a high probability of infringing non-defamatory speech. The legal principle against prior restraint was in harmony with publishing practice.
In the new era commenced by passage of Section 230, none of that applies. Instead, every would-be defamation gets published without review by anyone, does its damage permanently, word-wide, and then in a tiny fraction of cases, the already-published defamation gets a post-publishing review, and maybe gets taken down. Too late.
In judging libel, one principle the law has always recognized is that the damage it creates lives on forever. Publication creates a risk of that damage being endlessly renewed, even if a libel judgment has proclaimed truth to the contrary, and awarded money damages. Libels, once published, are rightly held to outlive their victims, and potentially to taint even their reputations among posterity, and indeed, down through history.
In the post- Section 230 era of internet publishing, every libel gets published. Nothing gets restrained. What little is attempted to be restrained prior to publication, confronts the principle against prior-restraint, quoted above—despite the fact that private editing—without which that principle makes no sense—is gone.
The question raised is two-fold. First, is this new legal regime tolerable? An ever-lengthening docket of cases, combined with an upsurge in demands for government censorship of internet publishers, shows that from a broad social perspective, it is not being tolerated. The demanded censorship, especially, puts in question the very survival of speech freedom across the nation. That is not tolerable.
Second, what is to be done? The alternatives are stark. There are but two ways known to restrain defamation before it does damage. One way is to empower government to censor published speech—the intolerable alternative noted above. The other way is to return to private editing, to once again use that practice to determine before the fact whether a would-be publication is defamatory—and crucially, to keep that determination out of government hands.
The second way is the far better choice. To rely on private editing is to bring the legal principle against prior restraint once again into rational harmony with publishing practice. Section 230 is what caused the disharmony in the first place, and what stands in the way now. To avoid government censorship, repeal Section 230.
"The second way is the far better choice."
Nope, can't buy that one either.
In this case, you're asking that YouTube verify the claim that Yan Huang was involved with, ". . . avarice, promiscuity—in particular, of sexual relations with other government officials—cronyism, and graft."
There's no way YouTube (Facebook, Twitter, Reddit, etc.), can investigation the (thousands?) of claims made daily on their sites.
And if they can't verify or refute the claims, then what?
Potential prior constraint of a true statement?
Nope, I'd leave everything as it is and if a person wants to sue then so be it.
We simply cannot have prior private constraint in the internet age.
Then you will have government speech constraint in the internet age. You speak as a utopian—as someone who believes, against evidence, in impossible perfection. You think liberty is perfected by lack of constraint? You will not think so after that unconstraint visits you.
Nor will people like you be in a position to decide what you will have, after unconstraint in publishing convinces a majority of your fellows that if this is speech freedom, they want no part of it. You need only turn on your television to discover that process of conversion is already far along. Or just review the comments on this blog, calling for ideological censorship by government of the largest internet publishers.
The notion that you, "simply cannot have prior private constraint," is an unconsidered notion, which history contradicts. Probably, you premised it upon the internet as it now is, dominated by a few giant publishers which strive to divide all the worlds' publishing among them. I concede, you are just as right to object to private constraint in that case as you would be to object to government censorship. There would be little to choose.
But that is not the publishing world which would prevail after Section 230 ceased protecting the business model of the monopolist publishers. Almost every opponent of repeal who responds to my comments objects that it would be impossible for Facebook, for instance, to do prior review of every comment. And so it would be. Which would spell the end of the monopolistic business model for internet publishing. That cannot end soon enough.
The monopolistic model would be replaced immediately by a host of differentiated and localized smaller publishers. It would model the formerly profuse world of newspaper and periodical publishing, but with yet more profusion and readier access for contributors. In a market multiplied, spread-out, and localized, each publisher would prove capable of reviewing before publication all the contributions which came its way. As a not-incidental side benefit, such a system could resume with renewed vigor the practice of news gathering, now largely abandoned on the internet.
Baleful effects of censorship come from two sources. First from being backed by government compulsion and punishment. That is well understood. Second, by imposing upon speech a narrowed and exclusionary point of view, the point of view of government only. That is less often considered, but still easy to understand.
Note, the first point applies not at all to diverse private publishing. There is no power to punish there. The second point does apply by analogy to private publishing divided among a few monopolistic publishers. The dangers those monopolists impose on speech freedom are alike with the dangers imposed by government censorship. Both threaten to narrow speech freedom to a tiny scope, approved by a tiny elite.
But the second point, like the first, is completely inapplicable to profuse, diversified, private publishing. Government censorship is not at all alike in its constraints with private editing practiced diversely and broadly. Indeed, for centuries, diverse private editing was held up as the very model of press freedom, and the very opposite of illegitimate constraint. It was, and remains in fact, the only un-utopian model of practical press freedom ever discovered.
Stake utopian expectations for press freedom on whatever private monopolists will choose to deliver to individuals, and you will have catastrophe. Government censorship as an alternative, will prove less a corrective than an aggravation. It is remarkable indeed to see so many free-market advocates converging toward such unreasonable expectations, while every evidence of experience counsels otherwise.
"You speak as a utopian—as someone who believes, against evidence, in impossible perfection."
No, I very much live in the real world with all its (and my) imperfections.
"Which would spell the end of the monopolistic business model for internet publishing."
How is Facebook (et al) a monopolistic business model?
Does they constrict trade/business (i.e. competition) in any way?
Are they so capital-intensive that costs prohibit start ups and competition?
Do their business practices force customers into unwanted choices (e.g. Microsoft put legal and technical restrictions on manufacturers and users, etc.)?
Propose a competitive startup to take on Facebook, and your prospective advertising customers will answer those questions for you in detail.
Put another way, the largest internet publishers enjoy network advantages so potent that only business models which do not compete directly can hope to gain traction. Note that among the most prominent social media companies, none has any notable competitors which are attempting to exploit its own market niche, but do it better. Instead, each internet giant has essentially monopolistic control over a niche which it invented, and grew to monopolize. None are competing in the same business.
All prospective competitors, if there will be any, will almost surely follow that same path. They will invent some new way to command an internet audience, grow quickly, buy up would-be imitators along the way, and emerge triumphant at the top, without a direct rival left in sight.
To compete head-to-head against Facebook, or Twitter, or YouTube, is apparently a fool's errand. Nobody seems to be trying to do it.
It's not technically prior restraint, because it's not the court issuing an order. This is private actors self-limiting their speech due to a fear of litigation.
I agree, in part, with Stephen Lathrop: anonymous (or pseudo-anonymous) libel can be extremely destructive and provides very little opportunity for recourse. This is a problem that needs to be addressed. But I don't think that either of his two options are a good solution (although I don't have a solution to the issue myself).
jubulent, you express a utopian longing, together with the good sense to resist it. Thank you for that. If you do come up with another solution, please share it.
Toranth
I think the appropriate solution is to make it easier to win convictions for defamation. One of the problems right now is that it is so difficult to meet the standards required that convictions are rare.
Toranth, that would concern me, for two reasons.
First, the present standards for defamation leave ample room for speech freedom, which is a good thing. I wouldn't want to see that room constricted. And conversely, the present standards already create pitfalls which threaten to take too many ordinary internet commenters by surprise. Yet more pitfalls would be pretty bad, too. I suggest the balance is about right as it is.
Second, a very large part of the difficulty is that it is simply hard to find a lawyer to take a defamation case on contingency. Most places, there aren't that many lawyers who have ever tried a defamation case. Also, defamation cases can be time consuming and risky for lawyers, so they tend to want large paydays if they win. And defamation lawyers can also be a little wary of their clients, who may be emotional about attacks made on them, but surprisingly willing to settle for small change if they get a concession of fault and a generous apology.
Another problem is whether there are enough resources on the other side to pay off a win if you get one. And that is the biggest problem with Section 230. By taking the publisher out of the picture, it removes from many, if not most, cases almost all the potential assets to pay a defamation judgment. Joe Keyboard, the guy who actually posts the defamation on the internet, tends not only to be anonymous, but judgment proof if you find him. No assets to attack means no lawyer to take the case.
With that as background, I sense that maybe you think making publishers share responsibility is a bad thing. If so, I am curious if you would say why you think that.
Two problems. First, with respect to defamation in general: The failures of George Zimmerman and Sarah Palin in their respective defamation suits is an excellent example of why I think defamation cases are too hard to win right now. The "public figure" doctrine, especially the narrow definition of "actual malice", makes it nearly impossible to win.
Which leads to your second point – the difficulty of winning makes it hard to find a lawyer willing to take the cases.
While I do agree that the near-blanket immunity granted by Section 230 is a problem, I think classifying all internet sites that allow comments (or blogging, or posted videos) as "publishers" leads to problems the other way. Twitter, or Facebook, or YouTube, WordPress, or any of the rest of their ilk, could not exist if they could be sued for millions every time one of their billions of users said something defamatory. It is simply not possible for those sites to validate the statements of their users.
Which means those sites would not exist. Any site that currently allows user-created content would be doomed. Even Wikipedia would be in trouble. Comments on sites like Reason would go away, which I think would be a loss.
I think the better solution would be if Section 230 actually meant what reddit users think it does: that a site that exercises any editorial control becomes the publisher. Otherwise, they remain the "community library" for others to publish in. That's the way things worked before the courts re-interpreted the CDA, and I think the courts were wrong when they overruled their precedent.
Toranth, thank you for that comment.
We may have a point of agreement on actual malice. I have a sense, mainly from reading this blog, that many lawyers now believe reckless disregard of the truth should be read as nothing short of knowledge of actual falsity. I don't agree with that, but I am not a lawyer. What I do think is that a publisher who should consider defamation as a possibility, ought then to have an affirmative duty to attempt good faith research prior to publishing. There would be legal complications around the particulars, but if that were the general standard, it would make winning a libel judgment a bit easier in some cases. Of course, until I started reading the comments here, I thought that WAS the standard.
The rest of your comment suggests to me that you number yourself among other internet users who want a way to normalize defamation, by putting publishers beyond risk (of course I get that normalizing defamation could be only a side effect which may not actually be the objective, at least for some). I disagree with doing that, because as a practical matter it all but abolishes the tort of libel, which I see as a critical bulwark supporting press freedom.
We get it. You hate the First Amendment. Are you going to spam every VC article with this same tired rant based on the same wrong analogies to print media?
Rossami, you get nothing.
Defamation had never been protected by the 1A, and still is not. Defamation is protected, however, and encouraged, by Section 230, which laid down a practical basis to get around the 1A, and publish defamation consequence free. Opposing Section 230 is a means to protect the 1A, which is what I am trying to do.
Also, you are mistaken to conclude the internet is unlike newspaper media, or television media, or magazine publishing, or billboards sitting on roadsides, or newsreels, or book publishing, or radio broadcasting, all of which are ruled by the same defamation standards which apply to the NYT. The internet is just the latest in a string of new publishing media, and ought to be governed alike with the others. The anomaly is that it isn't governed alike, because of Section 230.
In my comments on this thread I have offered somewhat detailed arguments, point by point. If you are serious, take them on, and suggest where I am wrong. Your comment above doesn't amount to much.
jph12
"Defamation is protected, however, and encouraged, by Section 230, which laid down a practical basis to get around the 1A, and publish defamation consequence free."
A particularly stupid take on an article allowing a defamation suit to proceed against the alleged defamer for something the defamer posted on the internet.
"In my comments on this thread I have offered somewhat detailed arguments, point by point. If you are serious, take them on, and suggest where I am wrong."
It's been pointed out many times, in many different ways. That's why Rossami referred to it as "this same tired rant based on the same wrong analogies to print media."
Why are we letting a senior official of a totalitarian dictatorship use our courts to harass a political refugee?
The court should have ruled it against US public policy to let our courts be used in this manner.
RoyMo
NickM
Bob – I would be very concerned about trying to create an objective rule about which foreigners may sue for defamation in the U.S. You're likely to end up with something which applies to people from countries the judge doesn't like.
However, the forum non conveniens doctrine is applicable here.
Your witnesses (plaintiff and defendant) are outside the country and not amenable to subpoena. Your claimed reputational damage happened in another country, where you're well known. Suit should be brought in that country.
"You're likely to end up with something which applies to people from countries the judge doesn't like."
A minor risk only at the margins.
Chinese Communist official is not a marginal call, she is a senior official of a repressive, brutal government and is suing a political refugee we are sheltering.
Runescape "Muting" Leads to First Amendment / Due Process Lawsuit Against Video Game Company
Unsurprisingly, the lawsuit goes nowhere.
From Elansari v. Jagex Inc., 2019 WL 3202195 (E.D. Pa. July 15), handed down by Judge Mark A. Kearney a mere 5 days after the Complaint was filed:
Amro Elansari sues a video gaming company located in the United Kingdom for allegedly "muting" him from playing his game. {[He alleges that] Jagex Inc. "operates public game open to public — free + membership" [quoting the Complaint]. Although his allegations are far from clear, Mr. Elansari alleges Jagex Inc. bans a player violating the rules of the game. He alleges Jagex Inc. "muted" him without explaining why and then denied his appeal of the decision without reasons.}
[Elansari] pro se alleges the video gaming company deprived him of due process, free speech and human rights…. He also moves for leave to proceed in forma pauperis. We grant Mr. Elansari leave to proceed in forma pauperis but dismiss his Complaint under 28 U.S.C. § 1915(e)(2)(B)(ii).
Mr. Elansari … only alleges constitutional claims. He cannot state a constitutional claim against a private gaming company precluding him for amending to assert a federal question. As he does not assert a state law claim, we dismiss the case without prejudice for him to allege a potential state law claim against parties who may have diverse citizenship….
The hand-written complaint states that "Plaintiff is Streamer ← 2000 hours+ invested." I'm not a gaming expert, but I assume that the Jagex game involved is likely Runescape, which seems to be Jagex's main product.
[Eugene Volokh] Runescape "Muting" Leads to First Amendment / Due Process Lawsuit Against Video Game Company – Jehtro Lewis – Blog
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jsnider
If Josh Hawley got his way, Jagex would have settled.
Pro se plaintiffs doing pro se plaintiff things.
At least it didn't cost him anything.
Eugene Volokh
Better yet, it seems not to have cost Jagex anything, since the judge dismissed the case on his own.
Runescape "Muting" Leads to First Amendment / Due Process Lawsuit Against Video Game Company – Reason
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Bill Poser
I wonder if he might make a state law claim for breach of contract on the basis of promissory estoppel? His extensive investment of time in the game is arguably reliance, to his detriment if he as gratuitously cut off.
I think you'll find a waiver that covers this buried in the terms of service.
Of course, if he was cheating, then he loses because of unclean hands, anyway.
When Are Athletes Liable for Injuries They Cause?
Plus a side note on Mormon church basketball.
Eugene Volokh | 7.17.2019 11:20 AM
In recent years, the Utah Supreme Court has produced many unusually interesting, thoughtful, and academic (in the best sense) opinions; here's another from last Thursday, Nixon v. Clay, written by Associate Chief Justice Thomas Lee:
At the outset of the oral argument in our court in this case, counsel for the appellee presented a quote from the late Senator John McCain. The quote alludes to the sport of mixed martial arts as a "dangerous and brutal exercise," while then warning of a "sport, more vicious and cold-blooded, that takes place in Mormon meetinghouses across this great nation of ours"—"LDS Church Basketball." This quote, sadly, appears to be a matter of internet apocrypha. We can find it attributed to a McCain floor speech on various pages of the world-wide web, but no such quote appears in the pages of the Congressional Record. Yet the apocryphal quote conveys an accepted view of "church ball" among many who have experienced this phenomenon—an athletic competition acclaimed on some local t-shirts as "the brawl that begins with prayer."
The court concluded that, as a matter of law, "participants in any sport are not liable for injuries caused by their conduct if their conduct was inherent in the sport":
Our cases have established a framework for the establishment of a duty of care in the law of torts. We have announced a "general rule" that "we all have a duty to exercise care when engaging in affirmative conduct that creates a risk of physical harm to others." And we have also explained that "[t]here are exceptions to the rule … in categories of cases implicating unique policy concerns that justify eliminating the duty of care for a class of defendants." In deciding whether to endorse an exception, we have looked to certain "'minus' factors" that may weigh against the imposition of a duty of care. Those factors include "the foreseeability or likelihood of injury," "public policy as to which party can best bear the loss occasioned by the injury," and "other general policy considerations." …
The Restatement (Second) of Torts states that a decision to "[t]ak[e] part in a game manifests a willingness to submit to such bodily contacts or restrictions of liberty as are permitted by its rules or usages." With this in mind, "[t]he majority of jurisdictions which have considered this issue have concluded that personal injury cases arising out of an athletic event must be predicated on reckless disregard of safety."
The majority rule establishes that a participant in a sport "breaches a legal duty of care to other participants—i.e., engages in conduct that properly may subject him or her to financial liability—only if the participant intentionally injures another player or engages in conduct that is so reckless as to be totally outside the range of the ordinary activity involved in the sport." The courts that endorse this rule have identified a series of policy rationales in support of this rule. We find these policy rationales quite persuasive.
Voluntary participants in sports "manifest[ ] a willingness to submit to … bodily contacts … permitted by its rules." They also submit to some bodily contact not permitted by the rules because "rule[ ] infractions and mishaps are virtually inevitable" in sports where bodily contact is inherent. Contact, both permitted by the rules and sometimes contrary to the rules, is a known and accepted risk of many sports. And "it is inapposite to the competitiveness of contact sports to impose a duty on participants to protect coparticipants from … known and accepted risks."
If participants faced liability every time contact with another player resulted in an injury, a "flood of litigation" would ensue. "[V]igorous participation in athletic activities" would be deterred. Athletic competition "as we know it would not be played." And our society would be worse off as a result….
For these reasons we think it appropriate to establish an exception to tort liability for certain injuries arising out of voluntary participation in sports. But we do not deem it appropriate to require proof that a defendant's conduct was reckless or intentional. Nor do we think it is necessary to limit the exception to an arbitrary subcategory of "contact" sports. Instead we hold that voluntary participants in a sport cannot be held liable for injuries arising out of any contact that is "inherent" in the sport. Under our rule, participants in voluntary sports activities retain "a duty to use due care not to increase the risks to a participant over and above those inherent in the sport." But there is no duty to lower or eliminate risks that are inherent in an activity.
In the early days of MMA, when the rules were very minimal (I think there was no biting, etc. but that's about it) and they didn't wear gloves, John McCain did call it human cockfighting. It really was a fun time, in that every martial art had this idea that they had better techniques, so it was a karate practitioner vs a judo player or a kung fu guy. Once we worked out that it was kickboxing with a mix of grappling skills either from wrestling/judo/Jujutsu that worked the best in all circumstances, they could implement safety rules and get sanctioned.
But that was as much as a deliberate marketing strategy — "There are no rules!" — than because it was unsettled what techniques were effective. It's not like matching the bans on biting and eye-gouging with a ban on, say, blows to the groin and fish-hooking would have unfairly disadvantaged any of the rival schools of martial arts. Rather, allowing things that would have been fouls in any other competition was deliberate marketing as "extreme", and things like McCain calling it "human cockfighting" helped draw adolescent male audiences.
Then, after audiences had built up, it converted itself from a spectacle into a respectable sport.
I think you're reversing causality. The "there are no rules" was part of the marketing because the purpose behind the whole endeavour was not to create artificial rules that benefited one martial art over another. By comparison, if two people want to have a race to see who wins, they are having the race to see who wins. That they go fast is implicit in deciding to race. That people watch a race because people go fast is merely the draw, but in the end the reason to have the race is to decide who wins.
So once the new style emerged, it didn't matter that limited safety rules, such as light gloves to protect hands, and blows to the top of the head, and knee strikes from the ground, disadvantaged everyone, because it did so to the people practicing the new style equally, and not any one traditional style over another.
Anyway, what the ended up doing was recreating what the ancient Greeks already knew, in Pankration.
Flashback to 2005, where Loser Pays went nowhere in Utah.
Andrew H.
Filed complaint three years after the injury. Arising from an injury from church. I searched the decision PDF for "insurance", with no results, buuuuttttt…I wonder of this was one of those cases brought because the injured's health insurance wouldn't pay claims from the injury, but would if the courts didn't find the injurer at fault (especially if they thought the other side had deep pockets). [insert thinking face emoji]
in every common situation I'm familiar with, health insurance doesn't care about fault when deciding whether to pay, and fault would only come in if the health insurance were looking for subrogation from another insurer (in which case the named parties would probably be insurance companies, or at least they would feature prominently).
"The court concluded that, as a matter of law, "participants in any sport are not liable for injuries caused by their conduct if their conduct was inherent in the sport""
But what is inherent in the sport? Each sport has forbidden actions that are better defined than most laws, and for which there is a prescribed penalty, which might be as minimal as to disadvantage the participant (loss of yards, loss of point, etc.) financial penalty, expulsion from the game or even the sport entirely. Might depend on whether the aim of the penalty is to eliminate the infraction, or merely make the decision for infraction interesting.
So is fouling in basketball an inherent part of the game, though forbidden and penalized by rule? Likely part of the game, since the penalty is less than the perceived benefit; the sport had deemed that fouling should continue (and draw out the last 30 seconds of the game interminably)
Targeted hits in college football? likely not inherent to the prescribed play, as the sport has set a penalty steep enough that such hits are not strategically valuable. Targeted hits are prohibited because they are inherently dangerous and are not part of the game any longer.
Fouling [called or not] occurs dozens [hundreds?] of times each basketball game.
Holding or other illegal blocks in football probably occur every play.
These actions are just as inherent as dribbling or passing.
OldCurmudgeon
I agree, the inherent standard is unworkable e.g., what about hockey fights? what about errant golf shots? I'd have gone more along the lines of "outrageous given the norms and customs of the sport," then threw it to expert testimony and juries.
That said, I wouldn't be stunned if most of these were friendly lawsuits e.g., a substitute for insurance coverage.
"what about hockey fights?"
What about them? According to the opinion, "courts should consider factors like the frequency at which this type of contact occurs, the circumstances in which it occurred, whether the contact is an aspect of the regular strategy of the game, and the severity of the sanction imposed by game officials." It's likely those answers may be different for different levels and even types of fights. If it's the NHL and you square up before fighting, I bet there's no liability under this standard. If it's your local rec league, and you sucker punch a guy, I bet there is.
"what about errant golf shots?"
How is there any question that errant golf shots are an inherent part of the game?
Kazinski
I think hockey fights are more in line with existing law for mutual combat, which generally allows lawsuits for assault and battery. But this may be one case where resort to foreign judicial proceedings would be justified since Canadian Hockey law seems particularly well developed:
The seminal case on battery and assault in sports is Agar v Canning.10 This case involved an on-ice fight that rendered the plaintiff unconscious. In finding the defendant liable for battery, the court noted that injuries inflicted with a "definite resolve" to cause serious harm "should not fall within the scope of implied consent". Implied consent can thus be defined by distinguishing the ordinary blows and collisions incidental to play from deliberate and unnecessarily harmful acts.12Overall, the decision affirms that an intentional blow or collision will not, on its own, attract liability. A defendant will only be found liable if his or her intentional act is coupled with an intention to injure another player.
Fights in basketball or baseball (much less hockey) are fairly common, yet specifically called out as inherent. Hitting someone with a golf shot is pretty rare, yet I'd tend to say it's part of the assumption of the risk when I step onto a course.
mpercy
If you hit me with a honestly struck golf shot (meaning you meant for it to go toward the hole, not toward me), that's just a risk you took stepping on a golf course. And hey, hopefully you yelled "Fore!".
If I beat you with a golf club because you hit me with your errant shot and failed to yell "Fore!", you probably have a case for assault&battery.
But what is inherent in the sport?
That could still be litigated. And even above, the Justice states that tackling is likely not inherent. But since the "tackle" wasn't the cause of the injury, there was no reason to judge if it was inherent to the risk of basketball.
Any extreme foul is likely possible to litigate.
Sure, it has grey areas, but so does every law, especially common law torts. This seems much better than "intentional or reckless" to me. When you're boxing, punching a guy in the face is pretty intentional. But it's inherent in the sport, no liability. And I agree that the severity of the in-game penalty is going to be a factor; in fact, such a strong factor it will often be determinative, I predict. If something could get you ejected, suspended, etc., that's strong indication that the rules are actually trying to stop that behavior as much as possible (usually because of its danger) rather than just be something designed as a consequence or tradeoff (intentional fouls in basketball are a great example of this).
Dilan Esper
I co-wrote a law review article ,("Abusing Duty"), mostly critical, about this sort of analysis after the California Supreme Court went down this road in Knight v. Jewett. But the California Court at least recognized a recklessness exception. This is worse.
I think the got it exactly right, it seems like they have more than a passing familiarity to church basketball.
Ohio has the same basic rule.
"[P]articipants in any sport are not liable for injuries caused by their conduct if their conduct was inherent in the sport" Well said.
Sixty, or so, years ago saw a teammate kicked a downed opponent in the face (open in those days) while wearing football cleats. No penalty was called, but knowing the guy and seeing the kicking . . . it was deliberate, i.e., not "inherent in the sport."
kick not "kicked"
I'm not sure a world in which sports teams (even church ones) had insurance to cover sports injuries that are "inherent to the sport" would be such a terrible world.
How about just relying on everyone's own personal insurance and tolerance for risk? Why create the bureaucracy necessary that every church softball team or community bowling league, had to have insurance for its players. It would be a real disincentive. This case is clearly out on the margins.
Only in the sense that it's a case at all. I've played basketball with Mormons (in their churches) and they're as brutal as playing with Marines, if not so fast given the physical abilities of the players.
Injuries like this appear to be are well within the norm, even if rare. And while I've seen marines carry their injured off the court, I've never seen them all pray for him while doing so.
Maybe this guy's upset that he didn't get the normal Mormon healing prayers? Assuming he is a Mormon still, they'll probably pay his bills – it's one of their religious obligations.
Most (maybe all) injuries are covered by many individual medical and / or liability policies now.
I don't think it would be a terrible world, but I do think it would be a worse world with fewer leagues and fewer people playing because of the additional costs. Of course, you still would need decisions like these because people can get hurt just as easily in pickup games.
santamonica811
"…If a participant in a sport initiated contact for the sole purpose of injuring a co-participant, for example, and not for a purpose that is strategic to or inherent in the game, that may suggest that the contact was not inherent…"
This immediately made me think of baseball, and the intentional beanball. (Obviously, the accidental beanball falls outside this, even though accidental injuries and even death have occurred…errant pitches are obviously an inherent risk in the sport of baseball.)
But what about the intentional beanings? The pitcher is absolutely trying to intentionally injure the batter. Does it matter that the intended injury is supposed to be exceedingly minor? (e.g., a small black-and-blue mark for a few days, where the ball was aimed at the batter's butt or upper thigh or lower back) I guess that the question of injuring being the sole purpose gets sorta meta. 'Yes, I hit him with the pitch to send a message. Stop beaning our own players. Stop crowding the plate. etc etc.'
But it's hard for me to see just about any situations where there is no strategic benefit to injuring another player…getting her or him out of the game is, of course, usually determinative in the case of any elite athlete . . . get Clayton Kershaw or Michael Jordan out of the game at the very beginning and your chances of winning go up enormously. I do not see how this 'exception' does not swallow the rule . . . how could anything be liable when there is such a huge strategic advantage to injuring a player on the other team?
"This latter example also highlights the danger in attributing too much significance to the "strategic" nature of an act. A player could conceivably find some strategic value in throwing a punch at a star player from the other team—in an attempt to prompt a fight or otherwise take him out of the game. But that sort of move is not part of the regular strategy of basketball. And it would not be inherent in basketball because it is (thankfully) sufficiently infrequent that no reasonable basketball player would be seen as impliedly consenting to this kind of contact.}"
Because batters get hit regularly accidentally, it would be hard to prove actual intent. Even if every "knew" it was intentional, a pitcher can still say "I was just trying to throw a high fastball over the inside corner, and it got away from me."
The pitcher is absolutely trying to intentionally injure the batter.
There's a difference between intentional pain and intentional injury. They most certainly aren't trying to disable someone so that they won't be able to play.
And if you intentionally throw at someone's head, one could easily argue that the pitcher should be liable. The hard part is proving that.
MP,
Your distinction is true IF the standard is "bad injury." But if the standard is just any injury, then my point stands. In torts, we all learned the first week or two about the eggshell plaintiff. If I try to hurt you a tiny tiny bit, but a huge and unexpected injury results, I am liable…even though a reasonable person would not have anticipated that you happened to be the one person out of a million with an eggshell skull. By that logic, if I try to injure you a tiny bit (hitting you in the rear end with a pitch), I should be liable if something far worse results. You say that (in normal cases) beanball caused a pain but not an injury. I don't think is, legally, correct…even small injuries are seen as, well, injuries.
AustinRoth
"Come and see the violence inherent in the system!"
Sorry, couldn't help myself. 🙂
There is never a bad time for a Monty Python reference!
If you are going to reach for a coward's distraction to avoid commenting on the important events of the day, I suppose burning issues in Utah scholastic sports would be as good a reach as any.
Come on. This is a legal blog, and it seems petty to complain about a conspirator posting about an interesting case.
So we have a racist president. We knew that before this past weekend. So we have an attorney general who will whore his integrity to protect said president. There are lots and lots of political websites that post political stories more regularly. Let's enjoy this website for what it is, rather than lament what it is not (and was never intended to be).
I tend to enjoy many of your posts. But this particular one seems particularly off-base. IMO only, of course. 🙂
Paladin_44
I almost alway enjoy RALK's posts too. Cut him a bit of slack, please. He's normally so pilloried for his observations and comments that you'd think he was the devil incarnate.
This is an intensely political and partisan website, at least as much political and partisan as it is legal. With respect to Pres. Trump and what has become of the Republican Party and movement conservatism for which the Conspiracy is a polemical advocate, it has become cowardly and a hypocritical censor.
I believe my shots aim no lower than those the Conspiracy directs toward liberal-libertarian institutions.
May the better ideas win.
Why can't the VC attract a better caliber of trolls than Kirkland?
It does. Read just a few posts. You'll see them. (Hint: If a post uses the term "butt-sex" to try and make readers squeamish about male homosexuality; it's probably a troll. If a post has to spell it Klinton–or even better, KKKlinton–it's probably a troll. Same with Obongo vs Obama.)
For some subjects, the number of trolls is larger than the number of normal good-faith posters. Alas. It's my view that things have become much worse with the move to the Reason site. But I also felt that things got much worse when Eugene moved from his own site to WaPo. The downside of exposure to a wider audience . . . VC was a very different animal back when a large portion of its audience was lawyers and law students.
Sounds like a straightforward application of implied waiver. The fact that some states flatly disallow implied waiver for coming to the risk is the only complicating factor.
Justice John Paul Stevens, RIP
An admirable man with a distinguished career as a Supreme Court justice. But also the author of some of the more problematic opinions of his era.
Ilya Somin | 7.17.2019 12:20 AM
Supreme Court Justice John Paul Stevens.
Retired Supreme Court Justice John Paul Stevens passed away tonight, at the age of 99. Stevens served on the Supreme Court for almost 35 years (1975-2010), one of the longest tenures in the Court's history. Although a Republican appointee, he voted with the liberal wing of the Court on most contentious issues.
Stevens was notable for his independence and devotion to duty, both of which are amply evident in his fascinating recent memoir, The Making of a Justice: My First Ninety Four Years. I never had the privilege of meeting him myself. But I know a number of people who worked for him as law clerks. All speak of him with great admiration.
In his statement on Justice Stevens' passing, Chief Justice John Roberts (who served with Stevens during the latter's last five years on the Court) praised his colleague's "inimitable blend of kindness, humility, wisdom, and independence." Stevens was also one of the last prominent public servants from the generation that fought and won World War II, in which conflict he served in the Navy and won a Bronze Star.
Justice Stevens was not a prominent advocate of any specific theory of constitutional interpretation (like Justice Antonin Scalia with originalism); nor was he primarily known for shaping one or two specific areas of legal doctrine (like Justice Anthony Kennedy in the field of gay and lesbian rights). His legacy rests primarily on his numerous opinions across a wide range of issues. That makes it harder to assess, especially at a time when many of the issues he wrote opinions on are still highly controversial.
It will, therefore, probably be a long time before we reach any consensus on his place in legal history. For example, it is possible future generations will agree with him that the Court made a terrible mistake in recognizing an individual right to bear arms on the Second Amendment, which he considered the worst decision the justices made during his time on the Court. In that event, his dissent in District of Columbia v. Heller, might go down in history as one of the great opinions of its era. But it is also entirely possible that the verdict of history will go against him on this issue or that it will remain closely contested.
While I have great respect for Justice Stevens, I also believe that two of his majority opinions—Gonzales v. Raich and Kelo v. City of New London, were among the most problematic Supreme Court decisions of the last several decades. I hope both will someday be overruled. But I should add that Justice Stevens deserves great credit for admitting that his majority opinion in Kelo was based in part on a significant mistake (though he continued to believe he got the bottom-line result right). It is extremely rare for a Supreme Court justice—or any prominent jurist—to publicly recognize he made a serious error in one of his most famous opinions. Whether we agree with his views or not, we have much to learn from Justice Stevens' honesty, integrity, and humility.
Ilya Somin is Professor of Law at George Mason University.
Supreme Court Kelo Constitutional Theory
RobC_
As to Second Amendment jurisprudence, it's always worth remembering the words of our then-Constitutional-Law-Professor-in-Chief, Barack Obama: "Let me be absolutely clear – like I've said many times before, I believe that the Second Amendment guarantees an individual right to bear arms. Period. No matter how many times people try to paint me as holding a different position."
Yes, and let us be perfectly clear: He believed that government was entitled to trample all over that right, or utterly extinguish it, for the least of reasons.
Look, Obama was resorting to a rhetorical trick that it all too common among anti-gun politicians who think admitting it would be tactically unwise: Declare you believe in a right to keep and bear arms, and then privately define it in such a manner that it never gets in the way of any conceivable gun control law.
Usually as a "right" to be armed while in military service with the government.
The right to bear arms in service of the government is usually presented as the alternative to the individual right doctrine. I think Obama's unspoken position was in what kinds of "arms" are included. IE no handguns, no "assault weapons," no semiautomatics, etc.
So Obama think you have an individual right to bear arms, so long as its nothing more than a musket
captcrisis
Correct. Even Scalia, writing in Heller, said that the sale, use and ownership of guns could be restricted to some degree. A point that seems to have escaped the VC'ers.
I Callahan
No, it hasn't escaped the VC'ers. As a matter of fact, they're very well aware of what that philosophy entails. The question is what does that "some degree" entail? And since that runs the gamut from no restrictions to only having a gun if you're law enforcement, and unloaded in your own home, and kept in a safe to not be brought out unless you're working.
I'm not sure the founding fathers leaned toward that last example more than the first one.
Gun absolutists are going to be among my favorite casualties of the culture war in general (and of the collapse of the Republican Party's competitiveness in national elections in particular).
I hope the backlash against gun absolutists does not interfere with a right to possess a reasonable firearm for self-defense in the home, but the gun nuts' counterproductive belligerence may provoke a backlash of unfortunate degree.
What "counterproductive belligerence"? I only see that on the other side. The lefty politicians who come out and say "I guess we'll come and take them."
The only "backlash" will be the well-armed patriotic right against the leftist traitors. Conservatives have more bullets than the left has ballots, and that's even if you grant citizenship to every mestizo in Latin America.
Seriously Rev, have you looked at the polling data? Gun rights are one of the few victories the Right has had in the culture wars in the past 50 years.
He's not wrong, in the sense that, unless the Right manages to wrest the education system out of the Left's hands, the Left IS eventually going to win, and yes, even on guns.
Unless they're stupid enough to try to push confiscating them too soon, and spark a civil war they can't win today, but might 50 years from now.
Slocum
The right to bear arms in service of the government is usually presented as the alternative to the individual right doctrine.
Which is absurd, of course. Why would the right of the government to provide soldiers with weapons (which every government in history has done) need to be spelled out? It goes without saying. And why would such a silly, unnecessary provision be plopped down in the middle of a bill of individual rights?
Slocum – you and I had the exact same thought, apparently. You're just a faster and more succinct typer.
Under the collectivist interpretation of the Second Amendment, it prevents the federal government from disarming the state militias.
But Article I, Section 8 does specify that Congress can organize and arm the militia because the federal government is a government of limited and enumerated powers.
Also, the original batch of amendments to the Constitution included more than just has become known as the Bill of Rights, including proposed amendments about the organization of the federal government and the relationship between the state and federal government (the original version of the Tenth Amendment only referenced the states, not the people).
It all may be true that Congress CAN organize and arm the militia, but nowhere in that clause does it say they can DISARM them.
I've seen this argument before, but why on God's green earth should such a right be enshrined in the constitution when it's inherent that "service of government" would require you to have a firearm (armed forces, police, etc.).
The answer is, and has been rehashed thousands of times, that the founding fathers wanted people to have an individual right OUTSIDE of service to government. Anyone can read any other papers they wrote where they said just that.
"Outside" isn't quite right. They believed there were benefits to an armed populace, a la Switzerland, but the primary benefit was to create a disciplined, regulated fighting force that could defend the Republic. And that is the reason the Second Amendment says what it says.
And that, in turn, suggests two things: 1, there is absolutely an individual right to own weapons, and 2, that regulations of that right that assist the government in creating a disciplined fighting force that will serve the state are constitutional.
Go back and re-read the text of the 2nd amendment. It is the militia itself that is the thing to be "well regulated", not the right to won weapons.
And everyone forgets the definition of "well regulated".
""Well-regulated in the 18th century tended to be something like well-organized, well-armed, well-disciplined," says Rakove. "It didn't mean 'regulation' in the sense that we use it now, in that it's not about the regulatory state. There's been nuance there. It means the militia was in an effective shape to fight."
So oddly enough, well-regulated meant the opposite of what it means today. It had nothing to do with government regulations.
True, but pointing out that "well regulated" in the text of 2A applies to the militia and not to the right to keep and bear arms works regardless of the definition of "well regulated" the other side want to use.
A lot of what we would call "regulations" do relate to militia discipline. For instance, a federal law requiring anyone who wants to own a weapon to take periodic safety and marksmanship classes is pretty obviously perfectly constitutional.
Sure, but that doesn't accurately describe more than 1% of actual existing firearms regulations.
Hand gun bans/limits, "assault weapon" bans limits. purchase license requirements, waiting periods, background checks, none of these relate in any rational way to militia discipline.
And in any case, you ignore the fact that the militia has been regulated out of existence in favor of the standing army.
It meant regulated in the same sense sense as is now largely limited to engineering – a regulator or governor that keeps the device working within its designed range.
In the context of a militia it simply means well functioning. And your militia (in the late 18th century) is not going to be well functioning if your militiamen are not used to handling and using arms.
The grammatical structure of the 2nd Amendment is perfectly clear. Government infringement of the right to bear arms is prohibited unconditionally. The preamble about the militia is not a condition for the exercise of the right, but an explanation for the prohibition
Naaman Brown
The Overmountain Men — the Watauga Association militia that mustered at Sycamore Shoals and marched to engage Ferguson's Loyalist Militia at King's Mountain in the early days of the Revolution, were required by militia regulations to possess a military firearm, a personal supply of ammunition suitable for a military engagement, to meet regularly to present arms for inspection, to drill, to target practice, etc.
They also had at home firearms for hunting food, protecting livestock from predators, recreational target matches, and other non-militia uses, including self-defense. Nothing in the militia regulations banned or prohibited non-military arms from possession by militia members or the general law-abiding public. (In fact there were in militia possession spare military arms that were "rented" to those who could not afford a personal military grade weapon but could afford to pay a tax or fee for duration of militia muster.)
People heavily invested in the belief that gun control is good are willing to do great mental gymnastics to twist the Second Amendment into Justice Stevens' preferred reading of infringing the right to keep and bear arms for people who are not active duty government enforcers.
Gun control is a bad idea because when you ban anything that people feel they have a right to have and feel they benefit from having it (guns, alcohol, marijuana, erotica, abortion, etc.) what happens is the creation of grey and black markets in defiance of the ban, and the fostering of contempt of the law. The bans do not accomplish the good that the banners expect, because the illicit market is more prone to pandering to abusers than the legal market would be. Gun control proposals usually fail because enough people eventually realize this, not because the NRA is promoting a politically incorrect interpretation of the 2A as Stevens argued.
"and 2, that regulations of that right that assist the government in creating a disciplined fighting force that will serve the state are constitutional."
Indeed. The problem is that most gun control laws have the opposite aim; Not assuring that a trained militia will exist or can be easily raised, but rather disarming as many people as feasible.
Exactly. A requirement to own and be proficient in a modern weapon of war currently issued to the regular armed forces would itself be constitutional, and was in fact in place in many locations after the founding.
So if Congress passed a law requiring the purchase and possession of an m16, or pay an annual fine to exempt yourself from militia duty, that would be an exercise of their power under the 2nd amendment.
"but the primary benefit was to create a disciplined, regulated fighting force that could defend the Republic."
Or prevent the Federal government from using its standing army to oppress the states.
That's not true. Using force against the federal government is defined as Treason, the only defined crime in the Constitution.
So the Constitution, by it's express terms, creates no right to turn arms against the federal government. It's clear some founders believed it should have, but the language of the Constitution is absolutely clear on this.
No, it is true. James Madison said so, right there in the Federalist Papers, and I care a whole lot more about what James Madison said than what Dilan Esper thinks.
James Madison is not the Constitution. As I said, the Constitution says that levying war on the United States is treason and may be tried as a capital offense. In the face of clear language, the statements of framers are irrelevant.
No they aren't, and James Madison succinctly explains why in that very same Federalist Paper. And since you claim is about what the founders believed were the benefits of an armed populace, it seems rather odd for you to now claim that what they thought is irrelevant.
It also says you can only be convicted of treason on the testimony of two separate eye witnesses to the same overt act of treason.
All the modern forensic evidence, video evidence (security cameras), it would all be inadmissible in a trial on a charge of treason.
There is a reason why the US Congress has passed ordinary criminal laws covering everything that would fall under the constitutional definition of treason and the last time any person was brought to trial on a direct charge of treason was back in the 19th century.
Rufus The Monocled
He evolved.
Like he did with gay marriage.
And then he went on Ellen to dance about it.
Pettifogger
I agree with you that many lefties try to limit thev "right" to keep and bear arms to military service. But that's silly. Try arguing with your CO that you have such a right when your mission does not require it. I was a Communications Officer in the Marine Corps during peacetime. I had access to weapons only during periodic requalification.
"inimitable blend of kindness, humility, wisdom, and independence."
I support speaking no ill of the dead, and even of spinning their lives in the obits to focus on the positive.
In that spirit, I'd allow "kindness" and "independence."
But humility and wisdom would be harder sells.
The only kindness he showed was the same sort one has for puppies and kittens. One of the hallmarks of true kindness is accepting that other people have agency. Too many of his decisions were of the patronizing sort, because he knew better than everybody else what was best for them; or maybe he just knew that government knew better than them.
its sad to see someone pass away but I can't help but laugh at the people who always turn up on cue lionizing the deceased and signalling their devotion to people/especially famous people they had little to do with in life. The communal mourning rituals, which arguably have more to do with status climbing than the deceased, of 21st century western society is such a fascinating study.
[Ilya Somin] Justice John Paul Stevens, RIP – Jehtro Lewis – Blog
[…] from Law https://reason.com/2019/07/17/justice-john-paul-stevens-rip/ […]
"…Justice Stevens was not a prominent advocate of any specific theory of constitutional interpretation (like Justice Antonin Scalia with originalism)…"
I think you meant to write, "…UNlike Justice Scalia with originalism)…" Otherwise, I am not sure the sentence means what I think you intended.
In this sentence, it means "as with", so makes sense.
It means "like Justice Scalia was a prominent advocate of originalism." The parenthetical relates to the "prominent advocate of…" clause, not the sentence as a whole.
I'm always sad when some old geezer dies, because I'm 60, and my dad died shortly after retiring, and guys who reach 99 give me hope.
And Stevens was retired, beyond causing (much) more damage.
But, seriously, his majority opinions were awful enough, his minority opinions were often horror shows.
John Paul Stevens, Former Supreme Court Justice, Dies At 99
[…] does The Volokh Conspiracy's Ilya […]
NoVaNick
Yes, Stevens represented a spirit of civility and humbleness that seem lost in modern politics and I am sure he was a wonderful guy. That said, if there is any consistency among his opinions, it seems to be defending the supremacy and power of the state.
WillDD
"it is possible future generations will agree with him that the Court made a terrible mistake in recognizing an individual right to bear arms on the Second Amendment, which he considered the worst decision the justices made during his time on the Court. In that event, his dissent in District of Columbia v. Heller, might go down in history as one of the great opinions of its era."
If that is the case, one can't help but think that it is a very strong possibility that those "future generations" will no longer be living in a united country.
I found it interesting that Stevens chose to retire in 2010 when he was still in fine health. If he stayed on he would shortly break Holmes's record as the oldest Justice, and in two years would break Douglas's record as the longest-serving.
My theory is that he deliberately let those records stand, as a warning to future Justices that one must not stay on too long. Holmes should have retired a year before he did, and both Douglas and Field (the second longest-serving) also stayed on too long.
Or perhaps he thought it was wise to retire when the Ds had a nearly filibuster proof majority in the Senate ?
He was appointed by a Republican President.
Freddy the Jerk
What does that have to do with him apparently choosing to retire when he could be guaranteed that another statist would fill his seat?
An instance of the frequent Republican failure to appoint originalists.
I think of it as the frequent Republican failure to be honest while campaigning for the office. It's not that hard to appoint good judges, Republican Presidents were lousy at it because they mostly meant to be.
gormadoc
The predecessor to originalism, strict constructionism, had just emerged as a judicial philosophy and not just a civic philosophy, so it's not much of a surprise. Originalism wasn't much of a thing (in practice, not theory) before Scalia.
Nice guy. Blah. Blah.
Didn't he write Kelo?
They're all nice until someone loses an eye.
markm23
This is the guy who, during WWII, agonized over his part as a codebreaker in sending fighters to shoot down Yamamoto's airplane, because they were sent to kill a specific Japanese military officer. Killing an anonymous group of soldiers or sailors was just fine, but killing one man was morally suspect if he was such an _important_ man that we knew his name.
"Nice" guys aren't morally twisted like this.
He's a "Ford Judge"
"While I have great respect for Justice Stevens, I also believe that two of his majority opinions—Gonzales v. Raich and Kelo v. City of New London, were among the most problematic Supreme Court decisions of the last several decades."
Well, whatever are the most "problematic" Supreme Court decisions of the last several decades, Stevens was on the right side of Morse v. Frederick, which was the stupidest supreme court decision of the last several decades.
Let's face it, he was a terrible judge, from the make-it-up-as-you-go along-to-get-the-result-you-like school. Hence no discernible interpretive philosophy, beyond teleology.
May have been a great bloke and a wizard codebreaker, but as suited to the judicial bench as I am for the ballet.
He was a political operator in a political theater. He was also very intelligent and achieved just about the highest level of power a lawyer can hope to reach in the profession.
But he wasn't a particularly insightful or influential justice. He made some good calls and he made some bad calls. But he wasn't a particularly memorable justice, like Scalia or Ginsburg.
BigChiefWahoo
For what it's worth, Stevens was the last SCOTUS justice to have ever been in private practice.
Heresolong
May wish to do a little more research before you post.
https://en.wikipedia.org/wiki/Brett_Kavanaugh#Private_practice
In 1984, she (Sotomayor) entered private practice, joining the commercial litigation practice group of Pavia & Harcourt in Manhattan as an associate.
John Roberts: "before spending 14 years in private law practice."
I chose three names at random and this is what Wikipedia told me. No idea about the other six as I think this proves the point.
Hank Ferrous
Crikey Somin, there's not speaking ill of the dead, and there's whitewashing. He was a narcissistic ass who couldn't keep his cakehole shut post-retirement. The Kelo decision alone, whether or not he later recognized its issues, was more than enough to invalidate any opinion he had once off the bench. Some folks retire and get a hobby, some have such a monumental ego and lack of (intellectial) maturity that they simply cannot leave the job to those who are now actually doing it.
Leo Marvin
Your concern for not speaking ill of the dead without crossing over into whitewashing is very convincing.
Joe_dallas
Notable opinions and dissents
Heller Dissent – Tried to demonstrate via original meaning that the Right to keep and bear arms limited to service in the militia by citing numerous historical writings that RTKA was intended for Militia, while prentending that zero historical writings existed for the individual right even though Scalia citing numerous such historical writings.
McDonald dissent – the phrase "all laws" in 14A somehow means we can pick or exclude any laws we chose to incorporate.
CU dissent – Corporations and Associations have no 1A rights because they arent people. Under his line of legal reasoning, the government can take property without due process from a corporation, trust, partnership, estate, association, because they are not people – even though the entity is owned by a person.
Kelo – nuff said previously
ThePublius
Excellent. Proof that self-absorbed nitwits can become Supreme Court justices.
Uh, the phrase "all laws" does not appear in the 14A.
CU dissent – Corporations and Associations have no 1A rights because they arent people.
That isn't what his dissent said.
Yes, and no. Stevens wrote, "The conceit that corporations must be treated identically to natural persons in the political sphere is not only inaccurate but also inadequate to justify the Court's disposition of this case."
It wasn't that corporations had "no" rights, but that they had substantially inferior rights. But this is a bit of a rationalization, since in Stevens' view, those rights were so inferior as to be nonexistent for all practical purposes; The corporation could be required to finance speech from a specified fund that could be arbitrarily limited.
Pretty typical Stevens, acknowledging a right, but such a limited right that it is basically worthless.
Also typical in that he doesn't accurately characterize the majority's argument; Not that corporations are indistinguishable from natural people, but that Congress's prohibition on infringing speech rights is not qualified on the basis of whose rights are at stake. It's a blanket prohibition on the entire enterprise.
Indeed. Citizens United is a fascinating case, and Michael Moore is likely most directly responsible for overturning campaign finance law (with the FEC helping).
It all goes back to Farenheit 9/11. It was a film that was highly critical of Presidential candidate, and was released on Direct TV just 2 weeks before the November election, a film paid for by a commercial corporation. A clear cut case of electioneering, in violation of the law, and so the Citizens United group called the FEC to stop it. And the FEC said…no. No problem here. (imagine if they'd ruled differently for a second).
So Citizens United said…really? And they proceeded to set themselves up as a non-profit film organization, releasing a few documentaries over the next few years. And then in November of 2008, the decided to release a movie "Hillary: the movie" which was highly critical of a presidential candidate. And now the FEC said "Nope, can't do it".
And the Supreme court looked at this case, and the previous case, and it was clear. The prohibitions on speech had to go. Especially if the administrative types were playing favorites.
"For example, it is possible future generations will agree with him that the Court made a terrible mistake in recognizing an individual right to bear arms…"
Only people who are confused about what the job of the Supreme Court is, it's to interpret the law not to make it. If it's a mistake to have an individual right to keep in bear arms then it's up to congress and the states to repeal the 2nd amendment just as they did the 18th amendment, it's not like they don't know how to do it the right way.
Yep, the Second Amendment merely acknowledges a natural right, and says it cannot be curtailed. Not really rocket science.
Bullshit. He was a megalomaniac. Not humble, at all. Not wise. I don't know how to interpret 'independence.' Does it mean not aligned with any party? Also bullshit.
Jimmy the Dane
I hope his pro-abortion ways resulted in enough sacrifices to please Moloch…
azbadger
I did not detect any swipes at Trump. A missed opportunity for the professor.
All you have to know about him is that he was willing to let the government criminalize flag burning.
Supply chain illuminati
Episode 272 of the Cyberlaw Podcast
Stewart Baker | 7.16.2019 1:39 PM
What is the federal government doing to "illuminate" its supply chain and then excise compromised hardware and software? That's what we ask Harvey Rishikof, coauthor of "Deliver Uncompromised," and Joyce Corell, who heads the Supply Chain and Cyber Directorate at the National Counterintelligence and Security Center. There's no doubt the problem is being admired to a fare-thee-well, and some evidence it's also being addressed. Listen and decide!
In the News Roundup, Nate Jones and I disagree about the Second Circuit ruling that President Trump can't block his critics on Twitter. We don't disagree about that ruling, but I'm a lot more skeptical than Nate that it will be applied to that other famous Washington tweeter, Alexandria Ocasio-Cortez.
GDPR still sucks, but now it bites, too. Matthew Heiman explains just how bad the bite was for Marriott and British Airways.
Gus Hurwitz reprises how much – or little – we know about the FTC and Facebook. We won't know much, he says, until we answer the question, "Where's the complaint?"
Talk about hard supply chain issues. Congress banned Chinese surveillance cameras from the federal supply chain by law. But passing a law turns out to be a lot different from actually, you know, getting rid of them.
For a change of pace, Gus and I rag on the US Patent and Trademark Office for its petition asking the Supreme Court to overturn a Fourth Circuit ruling that adding ".com" to a generic term makes it trademarkable. You tell 'em, USPTO! It's not like adding ".com" to a word has the same creativity and distinctiveness as adding "i" in front of "phone" or "pod."
Nate and I spar over whether Section 301 can be used to retaliate against France for its 3% digital tax.
Matthew tells us that the Trump Administration isn't sharing details on classified cyberattack rules with Congress, and after a modicum of mockery, we actually find ourselves agreeing with Congress's demand to be briefed on the rules.
Finally, in quick hits, I flag the hypocrisy of social justice campaigners who love the idea of privacy until it gets in the way of doxxing people they disagree with—plus the surprising ways that GDPR has enabled personal data breaches on an industrial scale.
Download the 272nd Episode (mp3).
You can subscribe to The Cyberlaw Podcast using iTunes, Google Play, Spotify, Pocket Casts, or our RSS feed!
As always, The Cyberlaw Podcast is open to feedback. Be sure to engage with @stewartbaker on Twitter. Send your questions, comments, and suggestions for topics or interviewees to CyberlawPodcast@steptoe.com. Remember: If your suggested guest appears on the show, we will send you a highly coveted Cyberlaw Podcast mug!
The views expressed in this podcast are those of the speakers and do not reflect the opinions of the firm.
Stewart Baker is a partner at Steptoe & Johnson LLP.
[Stewart Baker] Supply chain illuminati – Jehtro Lewis – Blog
[…] from Law https://reason.com/2019/07/16/supply-chain-illuminati/ […]
the questing vole
Why should that hot little minx AOC be able to block people if Trump cannot? My brief perusal of the account on this blog suggested that Trump couldn't do so because he couldn't separate his Twitter account from his status as a public official. If that is the reason that the Donald can't block people, shouldn't AOC be held to the same standard? Or, should we let her off because she's such an obvious intellectual cretin that she should be treated as a ward of the state instead of an officer of the state?
"Supply Chain Illuminati" would be a great name for a rock band.
The Tort of Loss of Sepulcher
I'll bet you never studied this (at least under this name) in your 1L Torts class.
Eugene Volokh | 7.16.2019 12:38 PM
From Gutnick v. Hebrew Free Burial Society for the Poor (N.Y. trial ct. June 28, 2019) (Judge Francois A. Rivera):
[T]he common-law right of sepulcher "gives the next of kin the absolute right to the immediate possession of a decedent's body for preservation and burial, and … damages will be awarded against any person who unlawfully interferes with that right or improperly deals with the decedent's body." This right is "less a quasi-property right and more the legal right of the surviving next of kin to find 'solace and comfort' in the ritual of burial." Damages are limited to the emotional suffering, mental anguish and psychological injuries and physical consequences thereof experienced by the next of kin as a result of the interference with the right of sepulcher. In order to recover for such emotional injuries, it must be shown that the injuries were "the natural and proximate consequence of some wrongful act or neglect on the part of the one sought to be charged."
To establish a cause of action for interference with the right of sepulcher, a plaintiff must demonstrate that: (1) plaintiff is the decedent's next of kin; (2) plaintiff had a right to possession of the remains; (3) defendant interfered with plaintiff's right to immediate possession of the decedent's body; (4) the interference was unauthorized; (5) plaintiff was aware of the interference; and (6) the interference caused plaintiff mental anguish (Shepherd v Whitestar Development Corp., 113 AD3d 1078 [4th Dept 2014]; see also Melfi, 64 AD3d at 26). A cause of action does not accrue until interference with the right directly impacts on the "solace and comfort" of the next of kin, that is, until interference causes mental anguish for the next of kin (Zhuangzi Li, 147 AD3d at 1116 citing Melfi, 64 AD3d at 31).
The court held that plaintiff had stated a claim, based on these alleged facts:
On April 13, 2014, at an open grave site, plaintiff and other mourners gathered around a coffin believed to be the decedent. During the funeral service, plaintiff noticed a handwritten sticker on the coffin with a name that was not the decedent. Plaintiff alerted the Rabbi performing the ritual and was advised that Orthodox Jewish law forbids the opening of a casket once it has been closed. However, cemetery representatives later opened the casket, in plaintiff's presence and discovered the body of an unknown woman. It is further alleged that the location of the decedent was unknown for several hours. Later, Capitol, HFBA, Mount Richmond Cemetery, and Pyramid representatives informed plaintiff that her father may have been buried in another grave. Upon identifying the grave, the representatives disinterred the coffin and opened it to discover the decedent's body, which plaintiff identified.
The term "loss of sepulcher" appears largely limited to New York law, with just a passing mention in a couple of other states' appellate opinions (one in North Carolina and one in West Virginia); other states seem to handle this under the umbrella tort of "negligent infliction of emotional distress," as the Restatement (Third) of Torts (Phys. & Econ. Harm) § 47(b) & cmt. f & ill. 3 indicates:
An actor whose negligent conduct causes serious emotional harm to another is subject to liability to the other if the conduct … occurs in the course of specified categories of activities, undertakings, or relationships in which negligent conduct is especially likely to cause serious emotional harm….
Comment: [Cases under this tort including] mishandling a corpse or bodily remains.
Illustration: ABC Hospital negligently misidentifies a corpse, causing it to be cremated rather than sent to a funeral home for burial as directed by the family. Members of the family suffer serious emotional harm upon learning about the mistake. ABC Hospital is subject to liability ….
Thanks to Prof. Howard Friedman (Religion Clause) for the pointer.
jdgalt1
If this is valid it outlaws whole-body donation, for no good reason.
How so? IANAL but if someone leaves their whole body to science in their will, doesn't that override heir wishes?
David Bremer
How so? The second element of the claim is "a right to possession of the remains." If you donate your body to science, your next of kin doesn't have a right to possess your remains. Hence, no claim.
1. The logic of this right is not limited to whole-body donation. You would be equally outraged if your loved one came back without his/her head or worse, the wrong head. For those with religious beliefs about literal resurrection of the body, even coming back without eyes or a finger would be a problem.
2. That said, donation creates some right on the part of the donee. Your preferences in your will can be repudiated by your next of kin once you're dead but the document expressing your preferences would at least give the donee the benefit of doubt on element 4 – that the 'interference' was unauthorized.
But it's not the sepulcher which was lost, it was the body.
But without the body, you can't use the sepulcher (at least as intended), so the loss is of the right (of use) of (the) sepulcher.
Almost modern English is weird. At least Middle Ages is obviously different, but almost modern is so close you get misled into thinking it's the same.
The Other Bob M
Interesting. Would this apply to a situation where someone acted falsely as the NOK, made funeral arrangements, and carried out the burial without notifying the rest of the family until well after the burial?
SepulcherMan!
JimT-Utah
Are you sure the right is not that of sepulture?
[Eugene Volokh] The Tort of Loss of Sepulcher – Jehtro Lewis – Blog
[…] from Law https://reason.com/2019/07/16/the-tort-of-loss-of-sepulcher/ […]
"(6) the interference caused plaintiff mental anguish"
I would prefer that these torts be based on something more objective than emotional injury.
Suppose someone has developed a philosophical attitudes to the slings and arrows of life. Does that preclude him/her from suing for mistreatment of a loved one's body?
I'd say there's an injury to human dignity which doesn't have to depend on the grieving survivors having to testify to how much emotional devastation they endured.
TheAmazingEmu
Is injury to human dignity more objective than emotional injury?
I think there's always an argument to be made that emotional injuries are too speculative, but I don't think there's a valid argument that emotional injuries aren't real injuries. And, if they're real injuries, excluding them from compensation would just be an acknowledgement that not all injuries can be compensated. That may very well be true, but it's different from saying they never occurred in the first place.
By contrast, if someone has a philosophical attitude that causes them no emotional injury, then they wouldn't be compensated for those injuries simply because they didn't sustain them. If someone shot at me and I didn't even know about it, I've not suffered any harm and not entitled to compensation. But if someone gets shot and requires long-term medical care, they are entitled to that compensation.
I don't think it's simply the injury to the living we're dealing with – it's the next of kin trying to vindicate the dignity of the deceased. Or more broadly, an injury to the family as a whole, both living and dead members.
There ought to be a vehicle to hold people accountable for treating the dead as described in elements 1 through 5 of the tort – I'd argue with standing belonging to the next of kin as representing the family.
Is it not true, though, that suits for negligent Infliction of Emotional Distress(in states other than New York) sometimes involve the mishandling of dead bodies?
What sense does it make to require plaintiff to demonstrate awareness of the interference?
I think because the harm being recognized is the harm done to the deceased's relatives (although I can see that it is a bit redundant, that to suffer that emotional harm, you'd have to know about it first anyway, but tort law is often like that). On the other hand, I could see the possibility for a common law tort that belongs to the deceased (and thereby the deceased's estate, which is not necessarily the next of kin), related to the dignified treatment of their body, getting at what Eddy is talking about above.
Thanks tk. Hmm. I guess based on the wording of the statute and on your reply that 'interference' here is a legal term of art.
As a layperson I assumed that 'interference' referred to the wrongful act or neglect per se, rather than to the relevant consequence (namely, next-of-kin's lack of immediate access to the body of the deceased).
But it appears that the statute (and you, in your response) are using 'interference' to refer to the consequence, not to the wrongful act (or neglect) which caused it.
Texas Court Rejects Once-Suspended Doctor's Lawsuit Over Reporting of the Suspension
Dr. Calvin Day had claimed that describing his suspension as based on "unprofessional conduct" was libelous. (He had also earlier sought to get dismissed criminal charges expunged, and tried to bind local news outlets to the expungement order.) He lost, and was ordered to pay over $80,000 in attorney's fees.
Eugene Volokh | 7.16.2019 8:01 AM
From Day v. Fed. of State Med. Bds. of the United States, Inc. (Tex. Ct. App. June 26, 2019):
Calvin Day Jr., M.D. … sued the Federation of State Medical Boards of the United States, Inc. … for defamation and tortious interference with prospective business relations. In response, the Federation moved to dismiss Day's lawsuit pursuant to the Texas Citizens Participation Act …. The trial court granted the Federation's motion to dismiss and awarded it $83,292.50 in attorney's fees. Day filed this appeal….
The Texas State Medical Board … is a state agency that regulates the practice of medicine in Texas.. In June 2011, the Board temporarily suspended Day's medical license and commenced administrative proceedings against him. The suspension was prompted by complaints of "boundary violations" made by six individuals, including several of Day's patients, and Day's arrest and indictment for sexual assault arising from one of these complaints. A jury convicted Day of sexual assault, but the conviction was set aside when the trial court granted a new trial.
The criminal charges against Day were eventually dismissed. In addition, four of the six complainants refused to cooperate in the Board's administrative investigation. By early 2017, only one of the complaints remained pending before the State Office of Administrative Hearings. On March 3, 2017, Day and the Board entered into an "Agreed Order," which resolved the remaining administrative complaint, lifted the suspension of Day's medical license, and imposed numerous restrictions on Day's practice of medicine.
The Federation maintains a website that provides physician data, including sanctions reported by state licensing boards. The part of the Federation's website known as the "Physician Data Center" contains a profile for each physician, including his or her licensure history, education, training, and biographical information. The Federation received the Agreed Order from the Texas Medical Board and, under the heading, "Board Actions," posted the following information on its website pertaining to Day:"
"Reporting Entity: Texas Medical Board
"Date of Order: 3/3/2017
"Form of Order: Agreed Order
"Action(s): RESTRICTIONS/LIMITATIONS PLACED ON MEDICAL LICENSE/PRACTICE
"Basis: Unprofessional Conduct"
Day complained to the Federation that the "unprofessional conduct" statement was false and insisted that it be removed from his profile. Day asserted that the restrictions the Board placed on his return to practice were based solely on the fact that he had not practiced for six years because of his suspension.
Free Speech Libel Right to Be Forgotten
Soronel Haetir
Unless there are circumstances that already require two doctors be present who would possibly hire this guy? They'd be getting one doctor's worth of work but having to pay two. Even if there are such circumstances it would still be a bad deal for the employer as the other doc would have to spend so much of their time dealing with this paperwork.
During the first six months, it's pretty routine that the doctors come to some sort of fee sharing arrangement. The supervisor isn't working as hard but the guy being supervised takes a hit, too. This is not much different from the teaching model.
After the first six months, the agreement says "health care professional", not doctor. Could be a (much cheaper) nurse, health aide or other health care person.
[Eugene Volokh] Texas Court Rejects Once-Suspended Doctor's Lawsuit Over Reporting of the Suspension – Jehtro Lewis – Blog
[…] from Law https://reason.com/2019/07/16/texas-court-rejects-once-suspended-doctors-lawsuit-over-reporting-of-t… […]
Texas Court Rejects Once-Suspended Doctor's Lawsuit Over Reporting of the Suspension - Popular Crime
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City May Not Bargain for Certain Speech Restrictions When Settling Lawsuits Against Police Department
The First Amendment makes such waivers of plaintiff's free speech rights unenforceable.
So the Fourth Circuit held (by a 2-to-1 vote) Thursday. The case involved a stock provision in settlements with Baltimore, under which settling plaintiffs "promise not to speak to the media about either their underlying allegations or the settlement process itself" on pain of losing half the settlement.
First, the underlying allegations, from Overbey v. Mayor & City Council of Baltimore (as usual in my posts, I note moved text with braces, { and }):
Ashley Overbey sued three officers of the Baltimore Police Department (BPD), alleging that the officers had beaten, tased, verbally abused, and needlessly arrested her in her own home after she called 911 to report a burglary…. Her case ground through the system for about two years, during which [Overbey alleges] she and her children became homeless—partly because Overbey's arrest record made it difficult for her to find work.
Eventually, following her attorney's advice, Overbey agreed to settle her suit for $63,000. The parties to the settlement agreement included both the officers named in Overbey's complaint and the City itself. The City was a party to the agreement because, pursuant to Maryland law, it represents the BPD's interests in settling claims against BPD officers.
As in 95% of settlement agreements between the City and persons alleging police misconduct, Overbey's settlement agreement included what we will call a "non- disparagement clause." This clause required Overbey to "limit [her] public comments" regarding her lawsuit "to the fact that a satisfactory settlement occurred involving the Parties." It prohibited her from "discussing [with the news media] any opinions, facts or allegations in any way connected to" her case, her underlying allegations, or the settlement process. And it provided that if Overbey were to ever make a prohibited comment regarding her lawsuit, the City would be entitled to a refund of half of her settlement. The clause placed no restriction on the City's freedom to speak about the case.
After Overbey signed the settlement agreement, the agreement went before the City's Board of Estimates for approval. While approval was pending, a local newspaper, the Baltimore Sun, published Overbey's name, her photograph, her address, and the amount of her proposed settlement in a report on payouts planned for police-misconduct claimants. The Sun's report quoted a statement made by the then-City Solicitor to the Board of Estimates in which the Solicitor characterized Overbey as "hostile" during her encounter with police—insinuating that Overbey, not the officers, had been at fault.
The Sun's story accumulated several anonymous, race-inflected comments implying that Overbey had initiated a confrontation with the police in hopes of getting a payout from the City. Overbey posted responses to several such comments, insisting that the police had been in the wrong and describing some of the injuries she had suffered.
The City determined that Overbey's online comments on the Sun article violated the non-disparagement clause of the settlement agreement. Consequently, once Overbey's settlement was approved, the City remitted only half of the agreed payment—$31,500— to Overbey's attorney. It retained the other half as "liquidated damages." …
Unconstitutional, the panel majority held, in an opinion by Judge Henry Franklin, joined by Judge Stephanie Thacker; here's an excerpt:
It is well-settled that a person may choose to waive certain constitutional rights pursuant to a contract with the government. Yet … the waiver of a constitutional right—even one that appears in an otherwise valid contract with the government—is enforceable … [only if,] under the circumstances, the interest in enforcing the waiver is not outweighed by a relevant public policy that would be harmed by enforcement…. [Here,] the City's asserted interests in enforcing Overbey's waiver of her First Amendment rights are outweighed by strong policy interests that are rooted in the First Amendment and counsel against the waiver's enforcement….
[E]nforcing the non-disparagement clause, which subjected Overbey to contractual liability for speaking about the allegations giving rise to her complaint and the circumstances under which she settled with the City, was contrary to the public's well-established First Amendment interest in "uninhibited, robust, and wide-open" debate on "public issues." …
Standing shoulder to shoulder with the citizenry's interest in uninhibited, robust debate on public issues is this nation's cautious "mistrust of governmental power." This mistrust is one of the "premise[s]" of the First Amendment, and we think it well-warranted here, because the non-disparagement clause is a government-defined and government-enforced restriction on government-critical speech. Indeed, when the government (1) makes a police-misconduct claimant's silence about her claims a condition of settlement; (2) obtains the claimant's promise of silence; (3) retains for itself the unilateral ability to determine whether the claimant has broken her promise; and (4) enforces the claimant's promise by, in essence, holding her civilly liable to itself, there can be no serious doubt that the government has used its power in an effort to curb speech that is not to its liking….
Clearly an unconstitutional condition. I'm shocked that there was a dissent. But maybe I shouldn't be.
I really want the dissent to be wrong but it's not easy to point to an obvious legal error in his reasoning. This appears to be a case of constitutional balancing – the right to freely contract vs the right to freely speak.
I would have preferred a decision that upheld the right to contract but then held that the punitive clauses were unconscionable. But that would require upending rather a lot of precedent.
People have the right to freely contract with the government, but the government doesn't have the ability to make or enforce certain contracts. Even though I might wish to be paid to refrain from criticizing the government, or to endorse a particular politician, or to convert to Christianity, or I might wish to pay the government to establish a particular religion, but that doesn't mean that the government can enter into such contracts.
SKofNJ
None of your examples are real-world examples. Can you think of one that might actually happen?
I agree with the dissent. I don't think an individual engaged in litigation should be forced by a court to sacrifice his interests for the sake of what a court deems to be the public's more important interest. That is what this court is doing by saying litigants can't enter into these types of settlements. Presumably, this litigant suffered a real injury and really needed to be compensated. Presumably, he thought if he went to trial he might lose, even though he deserved to win — because, it cannot be denied, juries are not infallible.
The individual is not sacrificing his interests. The city is.
I disagree. He and the city are entering into a contract that they both think will benefit them. It is the court that is sacrificing his interests, and the city's as well.
No, the plaintiff did not think that it was in her best interests to be gagged. She thought getting the money (possibly less, possibly more than a jury would award) up front was in her interests.
No, if she didn't think that taking the settlement that included a gag order was in her best interests, she would not have taken the settlement. In the real world, if you want everything, then you go to trial.
I think you're deluding yourself here.
The problem with the arguments in favor of enforcing this is that the government has endless (taxpayer) money, so they can always pay people to be quiet. There will always be a price at which a person will be willing to sign the non-disparagement, and with enforcement, the public would never find out about most of government malfeasance.
I think we are going to have some right-left consensus on this one.
"The problem with the arguments in favor of enforcing this is that the government has endless (taxpayer) money, so they can always pay people to be quiet."
They could even set up a special tax for this purpose. Say, $1000 a head, and if you voluntarily waive your right to criticize the government, they give you your $1000 back.
In my state, we waive Fourth Amendment rights to get a driver's license.
All states actually.
Driving is less important to people than saying bad things about a police department.
Depends what you mean. In the places I'm familiar with, if you violate "implied consent" and don't submit to a breathalyzer, they can take your license, but it's not criminal.
Doesn't the form of the term show the slogans for what it is? The city gets to be judge, jury, and executioner in claim for breach by themselves. Only if they planned on using it improperly would that clause be there, and to omit payment for half of the settlement is the only part it could apply to.
So if the city had included the silence clause in good faith it wouldn't even be written like that. But since they must have known they couldn't maintain such as action in court, they granted that power to themselves.
Buying a citizen's silence, then attacking her in the press, then punishing her simply for replying to the attacks, regardless of the truth of the underlying situation – best to avoid this sort of thing by making First Amendment rights un-sellable in these sorts of circumstances.
Also there's the issue of the public's right to know. The public got the views of Baltimore's estimable public servants about how things wend down (even though they paid compensation), the public should be able to get the citizen's response (except in cases of libel or slander, but that should go both ways).
rsteinmetz
As a non lawyer, the essential problem seems to be that the settlement can bind one party but not the other. Ogelvey can agree but the City cannot control all of it's employees and and agents.
I think you are right about the one-sided nature being key. While I might not like it, I don't see a problem with a litigant agreeing to a mutual non-disparagement clause because that litigant has no obligation to speak at all.
But where is crosses the line with regards to the First Amendment is when government set up a situation where it can say whatever it wants and it has bought the silence of the person who could best refute the government's claims. I would argue that this one-sided agreement qualifies as a form of censorship that is materially different from a mutual non-disparagement clause.
Professor Volokh, do you have an opinion on this topic?
Is she giving the money back?
Why should she? The city put an illegal condition on the settlement, and that part of void. The rest of it stands.
She gets the benefit of her bargain but the city does not?
Nothing worse than someone who won't stay bought.
ScottK
Illegal bargains don't get enforced, that's been the case for a few centuries now.
Fine, then she can give the money back.
Yes, that's what happens when you put an illegal condition in a contract. You run the risk of it being severed and the rest of it remaining.
I'd side with the dissent as well. I think the parties have the right to negotiate a settlement and a non-disparagement clause as part of that settlement is not necessarily an unconstitutional restriction.
If the parties want to be able to continue to discuss the case publicly then they should be able to negotiate to that end. If one party wants to silence the other they should be able to pay for it.
The Sun's report quoted a statement made by the then-City Solicitor to the Board of Estimates in which the Solicitor characterized Overbey as "hostile" during her encounter with police—insinuating that Overbey, not the officers, had been at fault.
Here's the problem. Ms. Overbey had agreed to the settlement but the city had not. Then the city disparaged her before the settlement was formally approved.
I think the court could have decided this case on the much narrower ground that the parties had agreed to the non-disparagement clause and the city had breached that clause, thereby freeing Ms. Overbey of her obligation to remain silent on the subject.
The problem here is that by the terms of the contract, the non-disparagement clause wasn't mutual, and the city was completely free to disparage the claimant.
I suspect the patently one-sided nature of the agreement may have influenced the majority's characterization of the transaction as hush money.
But it does mean the city didn't have any non-disparagement obligation, and hence didn't breach one.
the non-disparagement clause wasn't mutual
Well that's just plain bad lawyerin'.
> But it does mean the city didn't have any non-disparagement obligation, and hence didn't breach one.
OTOH, I'd argue that the city waived any rights thereunder when its solicitor(!) talked to the media. Alternatively, the tried-and-true unconscionability doctrine.
I tend to take the view that the public has no absolute constitutional right to every and any court proceeding. I think people are entitled to get particularly private matters, like marital disputes, resolved without the tabloids knowing every detail.
But I don't think that disputes with government, such as allegations of government misconduct, have the same privacy considerations. In general, at least as a policy or legislative matter, I'd tend to agree that police officers have no interest in having their dealings with citizens kept private sufficient to countermand those citizens' right to speak.
I agree that the legislature would have the power to prohibit such settlements.
Eric Rasmusen
This is an important opinion. I've been on the lookout for this issue. It is a serious problem that defendants break the law and then pay off plaintiff victims to keep quiet, to the detriment of the rest of society. It is akin to having court records be sealed—also a problem, as we see, for example, in the Epstein sex case. It is not uncommon for universities to fire tenured professors for whistleblowing, etc. and then pay them off in a settlement to keep quiet. We see that cities do the same thing to keep official misconduct secret. These agreements are, I think, obviously contrary to public policy, and should be as unenforceable as a drug or prostitution or gambling contract.
The opinion's economics are all wrong, to be sure. These agreements clearly benefit plaintiff as well as defendant. It is third parties who are hurt.
The Injustice of Demanding that Migrants Go Back and "Fix their Own Countries"
Trump's recent bigoted tweet is an opportunity to highlight the flaws of this oft-heard, but weak, argument.
Ilya Somin | 7.15.2019 5:17 PM
The Statue of Liberty.
In a widely condemned recent tweet, Donald Trump demanded that four racial-minority Democratic members of Congress "who originally came from countries whose governments are a complete and total catastrophe…" stop "loudly and viciously telling the people of the United States… how our government is to be run" and instead "go back and help fix the totally broken and crime infested places from which they came." Most of the condemnations of the tweet understandably focus on the fact that the four representatives are all citizens of the United States, and three were not even born abroad. Trump is attempting to stigmatize them as somehow un-American merely because they are all non-white and had the temerity to attack his policies.
I have many concerns about these Democrats' positions, particularly their advocacy of "democratic socialism." One of them has even made bigoted statements of her own. But attacking them—or anyone—based on ethnicity or supposed country of origin is rank bigotry at odds with the universal principles for which the United States is supposed to stand. Trump's tweet would be indefensible even if the four congresswomen really were all immigrants from "totally broken… places."
In addition to ethnic and racial prejudice, Trump's statement also channels the common trope that immigrants fleeing poverty and injustice have a duty to instead stay home and "fix their own countries." On this view, instead of coming to America, the "huddled masses yearning to breathe free" should instead keep right on huddling in their homelands in order to improve conditions there.
Such sentiments are periodically advanced even by people who would never dream of expressing the sort of crude bigotry Trump often indulges in. I addressed the flaws in the "fix their own countries" argument in a November 2018 post, which I think remains relevant now. Here is an excerpt:
[T]he "fix your own country" argument implies that the ancestors of most Americans (and also many Canadians, Australians, and others) were wrong to emigrate. The Russians should have tried to fix the czar and (later) the communists; the Irish should have stayed home and worked to fix the British Empire. Donald Trump's grandfather should have stayed in Bavaria and worked to fix imperial Germany. And so on.
The fact that the "fix your own country" argument implies that the ancestors of most Americans were wrong to come here does not by itself disprove it. We should not automatically assume that every longstanding American practice was necessarily right….
The claim that immigrants fleeing poverty or oppression have a duty to stay home and "fix" their countries is wrong for several reasons. In most cases, these people have little or no responsibility for the injustice and poverty they are fleeing. Russian Jews… were not responsible for the Pale of Settlement and pogroms. Likewise, today's refuges from Venezuela, Syria, and other unjust and corrupt governments generally had no meaningful role in creating the awful conditions there. It is therefore wrong to claim they must risk lifelong privation in order to "fix" the unjust regimes in their home countries. That point applies with extra force in cases where efforts to "fix" the regime are likely to result in imprisonment or death at the hands of the state. We rightly honor brave dissidents who risk life and limb to oppose injustice. But such sacrifices are not morally obligatory, and no blame attaches to those who forego them—especially if they have family members to protect, as well as themselves.
In addition, most migrants have little if any chance of succeeding in "fixing" their home governments, even if they did stay to try to do so. In most such societies, the injustice and oppression is deeply embedded in the political system, and most would-be migrants lack the clout to fix it….
This point is especially strong when it comes to authoritarian states, where ordinary people have little or no influence on government policy. But constraint also applies, though with lesser force, to many dysfunctional countries that are democratic. Even in advanced democracies such as the US and Western Europe, many harmful and unjust government policies persist because of widespread voter ignorance and bias. The same is true (often to a much greater extent) in the corrupt and dysfunctional democratic governments migrants flee from….
The vast majority of potential migrants, however, are neither morally responsible for the injustices in their homelands nor in a position to do much about them. In many cases, they can actually do more to help their compatriots by leaving, earning higher wages abroad, and sending remittances to relatives who remain at home (a major source of income for some poor nations). It is therefore wrong to claim they have a duty to stay.
Perhaps Trump's remark can be construed to mean only that migrants have a duty go home and fix their own countries if they dare to criticize the policies of their new home. But that version of the argument is no better. It implies that your right to criticize the government is contingent on your ethnicity or place of birth—or, in this case, that of your ancestors.
Immigration Refugees Donald Trump
Maybe Trump should go back to the nasty authoritarian state he came from. It would take a bit of time travel, but his arrival scene would make an above-average political cartoon.
Man, you must feel Obama was like Stalin then, eh.
Assassinating US Citizens without a trial, redefining the Senate's own rules so he can "recess appointment" whoever he wants, blatantly violating US laws about redirecting military spending, in violating of the appropriations law, and redefining the entire immigration system by executive order.
Working very, very, hard to ignore the issue at hand.
We can argue about what Obama did, but Trump has made it quite clear what he is.
Trump. Not anywhere near the authoritarian as Obama was.
Not anything that's argued in the OP. Picking a fight on some collateral issue so you don't need to defend Trump and his bigotry, eh?
Obama was plenty bigoted. Against religion. And his actions had far more effect than anything Trump has done.
There is also Obama's malice and bigotry towards the Jewish people, of course.
Funny. I didn't feel any malice from Obama, though I do from Trump.
Well, there's a surprise…. That's because you were imposing your political will on the less fortunate. Of course YOU weren't feeling malice.
It's not like you were a nun, who was being forced to violate their beliefs by the administrative state
It's not like you were a "terrorist" who got assassinated by a US drone without a trial.
It's not like you were a college student, unjustly accused of sexual abuse, and rushed through the system without due process
It's not like you were a political group who was suddenly assaulted by the IRS, FBI, and every other federal organization, because you asked inconvenient questions
It's not like you were a journalist that was being spied upon by the government
It's easy not to "feel malice" when you're the group doing the bullying.
But when things change, well, you realize…gosh…maybe the other side wants to investigate what I did. Now you feel scared.
Have any of the things you mentioned stopped under Trump?
Though you continue to post around the topic at hand, I see.
"Have any of these things stopped under Trump?"
Yes actually.
Due process has returned to our universities.
The IRS's political targeting has stopped. The defense of private tax returns is of paramount concern.
Journalists suddenly are concerned about any "spying"….and haven't noted any.
Respect for religious beliefs has returned in our administration.
Still working so hard to not address the issue presented.
Telling. Very telling. It looks like you know it's wrong, but can't bring yourself to condemn it. Or Trump.
And so you keep trying to distract yourself and others with past anti-Democratic talking points.
Weak as hell.
aluchko
So basically you intend to defend Trump's indefensible statements by trolling until you can start some unrelated fights?
"Picking a fight on some collateral issue so you don't need to defend Trump and his bigotry, eh?"
There's plenty of bigotry to go around. From Rep Ayanna Pressley: "We don't need any more brown faces that don't want to be a brown voice. We don't need black faces that don't want to be a black voice. We don't need Muslims that don't want to be a Muslim voice…"
But of course, nobody gives a crap if people on their team say bigoted things. Calling out bigotry is about policing the other side.
Remember when Obama used the Espionage Act to spy on reporters?
Remember when he just "waived" compliance with laws that were passed by Congress?
Remember when he tried to use the power of the federal government to tell churches who would be their own pastors?
Remember when, a few years from now, someone will be reminding you of all the racist, illegal shit Trump has done, and you will be complaining that they aren't sticking to the topic of the current President that you're upset about?
If all you have to argue about DONALD J. TRUMP BEING A RACIST PIECE OF SHIT is to complain about Obama, STFU and never come back.
mysmartstuffs
I'm so old I remember spending many a night with friends playing the "Bu-bu-bu-but Buuuuuuush!" drinking game.
If that was about blaming Obama about the economy in his first year, that was legit.
If it was about this kind of extreme attempts to distract, then it was as lame then as it is now.
Ben_
Remember when people used to have something to say rather than just to name-call and repeat buzzwords with no thought whatsoever?
I don't care if they fix their own nations or not, but they all have to go back. Nothing unjust about it. The wretched refuse of the world have no right to come to the United States or to live here.
To whom do you refer, CaveMan, when contending 'they all have to go back'?
Rep. Omar . . . or Melania Trump?
Rep. Pressley . . . or "Ted" Cruz?
Rep. Octavio-Cortez . . . or Ivanka (or Ivana) Trump?
Carry on, clingers. Until your betters decide to replace you.
CaveMan is not worthy of a response, AK. He's a standard issue ignorant Republican bigot.
CaveMan's positions are common among the Conspiracy's followers.
Regrettably true.
Reason4thinking
Great post. Make America Great Again did not, I thought, include making us into a bigoted, authoritarian state. And if our right to criticize governments policies and vote on those principles is dependent on the origin of our citizenship then the slippery slope leads us to some groups being more preferred citizens than others. That is called fascism.
And that kind of bias is in our history. In the USA, suffrage was not extended to all white males until about 1850 or so. Perhaps MAGA means going back to the days when the voting franchise was only allowed to white, male landowners and the 14th, 15th and 19th amendments did not exist.
"That is called fascism." You don't know what fascism means.
And that's the important thing, eh?
They just repeat buzzwords. They don't know what any of them mean.
Fascism (noun) an authoritarian and nationalistic right-wing system of government and social organization characterized by intolerant views or practices, oppression of political opposition and regimentation of society and of the economy. Close enough?
It is not wrong for people to immigrate if they do not like the country they're in. On the other had once you have immigrated to another country you generally need to accept the rules you find there or seek to legally change them.
I realize some will say Europeans should have asked Native Americans if it was OK to move in and in some cases they did. But that ship has sailed.
I don't think, in the modern world, it is right for anyone to demand they be admitted to the country of their choice simply because they'd like it better than the one they are currently in or to lie to get in.
Certainly Canada, Australia and New Zealand don't just allow any one in who wants to come. Fortunately for them geographically they can enforce their wishes.
Left out of this discussion of Mexico's implicit encouragement of their citizens to enter the United States for many years without regard to US law. The Mexican economy and government benefits greatly to the remittances sent for Mexican Citizens and their descendants to relatives in Mexico. Mexican society and government benefits from the US absorbing excess workers that Mexico's economy might not be able to absorb. I realize that currently Mexico is experiencing low unemployment, that has not always been the case and many Mexicans still feel they can do better in the US. If I remember correctly depending on the price of oil remittances from Mexican's and Mexican-Americans in the US are either the first or second source of hard currency for the Mexican economy.
I'd appreciate a reasoned explanation of what you think US immigration policy should be.
On the other had once you have immigrated to another country you generally need to accept the rules you find there or seek to legally change them.
Isn't running for, and getting elected to, Congress, precisely seeking to change the rules by legal means. Isn't criticizing certain policies the same thing?
Getting elected to Congress loses a bit of its gravitas when you are voted in by people from your homeland, concentrated in your district, who took advantage of the same lax immigration policies you're campaigning to erode further. The more accurate term for this is "puppet government".
Get a brain.
Apology accepted!
you are voted in by people from your homeland, concentrated in your district, who took advantage of the same lax immigration policies
Americans. Those people are called Americans.
Holding a US passport doesn't make you an American any more than being admitted to a hospital makes you a doctor.
This country didn't materialize out of the ether; it was forged from wilderness through blood, sweat, and tears. This is a fact that was appreciated by immigrants to the country up until two generations ago. They previously came to add the fruits of their labor to the American project; they now come to extract wealth from it, all the while calling the descendants of those who spilled the blood, sweat, and tears every name in the book.
Nations require work to create and maintain, in spite of the best efforts of leftists and their open-borders libertarian stooges to pretend otherwise. You may be able to come here and enjoy the rights of a citizen (as well as benefits paid for by citizens who don't even get them themselves, if the Democratic panderers get their way) but unless you are contributing to the project then you aren't American. You're a parasite and regrettably that label applies to the leftist descendants of nation-builders as well.
Only by agreeing with mysmartstuffs can you truly be American.
In a Republic, my dude, you need to deal with some disparate points of view. If you think we can't deal with people departing from your vision for this country, it is you who don't believe in the merit and appeal of your ideals.
That's what Democracy is – getting the government we collectively deserve. And yes, that includes Trump.
Your arbitrary cuttoff of 2 generations ago is another example of how pinched your worldview is. 'Sure, it used to be great, but THIS time immigration is bad!'
And if you don't think liberals realize America requires work to maintain, you need to get out more. Just not your work.
Its pretty rich in an era of shutting down "hate speech" to be told to deal with disparate points of view.
As far as two generations, this exists in a continuum from its founding through the Ellis Island era on to today. When it consisted of nothing but wilderness and hostile Indians the only people willing to come here were the ones who wanted the opportunity and the adventure of building a nation. When it was expanding across the continent it attracted those who wanted to make their own way in a new society. Today it has the highest standard of living in the world, aided by a robust welfare state, and a near-constant clamoring for even more handouts, from health care to college, some of which are explicitly intended to benefit immigrants, especially illegal immigrants. What sort of people are you going to attract when you advertise easy living and free benefits?
And of course leftists know that America requires work to maintain; the point is that the work is supposed to be carried on by the hosts and not their voting base.
First, I'm not one of those yelling about hate speech.
Second, even those that do are talking about acts; you're talking about people.
America doesn't advertise easy living and free benefits. Illegals don't get the vast majority of benefits.
The life of an illegal is not an easy one.
As a liberal, I believe that measures should check the ability of wealth to draw additional wealth to itself and distort the system while starving the lower classes.
That does not make me a parasite, any more than it makes you one for defending our current system of stagnant class mobility and continued wealth disparity.
You're not yelling about it but you tolerate those who do. I'm told that is just as bad. Resist!
And how do we not advertise free benefits for illegals when we have the Mean Girls Committee and their beta orbiters clamoring for free health care and college tuition for them? You must not have seen the Democrat presidential candidates in their "debate". This is to say nothing of the various NGOs camping out in Latin America to "provide aid" to migrants, I'm positive they are telling them that life up here is very hard and they shouldn't expect any help from the government. That's why they're arriving in record numbers, after all.
I enjoyed your liberal elevator pitch though, I'm sure it got all the likes on Facebook. Fight the power!
Mean Girls Committee and their beta orbiters oh, are you one of those Mens Rights guys? Neato.
You think there's a secret propaganda network getting people from Latin America to think America is easy-street and to come here? That's kinda crazy, dude.
As I noted, you're attacking a class of people so comparisons to hate speech are inapt. Though I see why you'd rather try and argue about my putative hypocrisy than your own more evident issues.
Men's rights activists are whiny weenies. Let's act like feminists! No thanks.
The presence of organizations funneling funds and providing assistance to migrants south of the border is well-documented; many of them are bragging about it on their own. It's not secret. Let's put on our critical thinking hats here. They are providing assistance to people whose expressed mission is to enter the US illegally, either outright or through phony asylum claims. Do you honestly believe that they are not encouraging this behavior? "Here's some money to help you get to the US border, by the way don't go there, you need to go through the proper channels." Sure thing buddy.
And free speech is free speech. You along with your leftist brethren have zero problem attacking whites, Americans, conservatives (or anyone who doesn't have this week's progressive marching orders), etc. so spare me your rationalization about why it's OK when you do it but not OK when people with whom you disagree do it. It may get you likes in the self-righteous Twitter circles but in the real world it does indeed make you a hypocrite.
They previously came to add the fruits of their labor to the American project; they now come to extract wealth from it,
I thought they were "stealing American jobs." In your addled brain any and all criticisms of immigrants make sense, no matter how contradictory.
You may have me confused with another right-wing nut job. Unemployment is at generational lows; the number you should be looking at is percent not in labor force.
It was almost a pretty good take-down though. If you want to tell your Twitter friends about it I won't object.
They're also called Somalis.
Only one is Somali.
She came here as a child and is a naturalized American citizen and an elected Member of Congress.
If you're going to claim that telling her she should go back to Somalia is not racist you're full of it.
Left out of this discussion of Mexico's implicit encouragement of their citizens to enter the United States for many years without regard to US law.
It's left out because that's not what we're talking about.
It is the the thing that started this whole thing rolling. Mexico has to a large extent got their economy in order if not their civil society, but others in Central America have emulated their example.
And imaginary.
I'd appreciate a thoughtful discussion of what the post AI economy will look like in 50 years.
But this isn't the place for that discussion.
This discussion is about Trump telling elected politicians who were born in the US to go back and fix their own countries.
FlameCCT
Hey aluchko,
Perhaps you can show us where Trump said country. Typical Progressive Ignorati, continually trying to redefine what was said by others. IOW creating a non-existent controversy.
BTW: What about Rep. Pressley's bigoted and racist comments at the NutKooks?
You think Trump just meant go back to your Congressional districts? That's what you're going to try for?!
They will say anything, Sarcastro, no matter how idiotic.
We've had ample evidence here that the Trumpists will defend anything Trump does or says.
You must be new here, Ilya Somin's position on immigration policy is OPEN BORDERS. And there's nothing "reasoned" about it.
I think Charles Cooke had the best response here. It went something along the following lines…
Some of these people (or their very recent ancestors) came from countries which were war-torn, violent, with governments of minimal rights and a whole lot of abuse. And the United States took them (or their parents) in. And in just about every way, the life they have now is much better than the country they were from (or their parents). And what is happening, is these people are turning around and are severely criticizing the country that took them in, in dozens to hundreds of ways.
Do they have the legal right to? Yes. This is a free country, and they can say what they want, as they want, unlike the places they left. However….it seems ungrateful. To use an analogy, it's as if a good person saw a starving beggar on the street, took them into their house, and fed them a nourishing meal of bread and cheese and meat. And the beggar turned around and criticized the good person, because the meat was overdone, and the cheese was just store bought, and not imported, and how dare they feed such poor quality food to the beggar, who was starving.
For just how many generations does this obligation exist?
And what if the immigrant, or the immigrant's descendants honestly believe certain policies are unwise or immoral? It hardly seems sensible to say they shouldn't speak up.
What if the beggar was in fact a good cook, and suggested a way to improve the quality of the food for everyone?
In short, Cooke's argument is BS. The analogy is nonsense.
How about 0 generations. Or perhaps one. And we're not saying they shouldn't speak up.
But criticizing and hating America on certain policies, when America took you or your parents, and the country they took them in from was far, far, worse in those policies….Seems unwise. I've spoken with people from the old Soviet Bloc, and they know just how bad communism was, and why we should never go back.
And, those doing the criticizing aren't actually fixing things, but just criticizing. Less a "good cook" and more of a "food critic".
Most of the people criticizing modern America are right-wingers. They just can't abide all of the damned progress, and pine for illusory good old days.
And yet….The right wingers aren't the ones taking down American Flags and replacing them with Mexican ones…
The right's flag choices are maybe not the bastion of loyal America you think they are.
When your people are replacing the American Flag at American Institutions with those of other countries….
Ya got to wonder. Are you really "supporting America"?
Your goal posts and attempts to change the subject continue unabated.
Now you're arguing that the Democratic Party is full of disloyal Americans in an attempt to not talk about how the head of the Republican Party seems to be as bigoted as they come.
I'm just responding to your comment. If you changed the subject, you have no one to blame, but yourself.
Yeah, I bit on your bait.
But hard to resist when your you still moved the goal posts from 'whose flags support America' to 'only flags at American Institutions count!' which is pretty amusingly clumsy.
Right-wingers prefer Confederate flags.
But they're totally not racist . . .
Nah. But how do you feel about the Betsy Ross, 13 stars flag? That racist too?
They're the ones putting up Confederate flags and monuments to traitors.
Love America, do they?
And we're not saying they shouldn't speak up.
That's exactly what you are doing.
Go back?
And, those doing the criticizing aren't actually fixing things, but just criticizing.
So what? They have that right. What are you "real Americans" afraid of?
Actually it is Rep. Pressley that is saying black people, brown people, asian people, and queer people should shut up if they don't agree with her!
It's less a food critic than someone pulling a scam to get freebies.
They want onboard the grievance gravy train.
Mesoman
Nobody is preventing them from speaking out. Trump is suggesting that if they are that ungrateful, they should leave. He isn't making them leave – he is just making an argument.
Ungrateful? WTF?
But I will add my own gripe with the "progressives" . They have made identity politics their calling card. They throw around terms like "POC" and "brown" when the entire history of the USA has been to move away from racial labels and be more inclusive. Yes racism still exists in America but you don't fight it with more racism.
When the President is trafficking in full-on racist tropes like telling American Citizens to go back where you came from, complaining about how the problem is Dems are talking about race, which is racist
Perhaps you should work on getting rid of Racist Pelosi too.
Perhaps you should stop trying to throw out irrelevancies and deal with the issue being discussed.
We are. We're discussing racism. And Pelosi is now Racist, according the the Squad.
Your comments are much more enjoyable when I recall that you will be replaced.
Sometimes, I think you and Restore Western Hegemony should get a room together.
RWH is your guy, not ours.
I'll take RAK for all his roughness over RHW any day.
Of course you would. RAK is your bigot. But I'm not convinced that they are not the same person.
TIP, do you believe AJK and RWH are equally bigoted? Equally objectionable?
TiP, call me when RAK calls for helicopter rides for judges he doesn't like.
And deal with reality as it is, don't make up conspiracy theories to keep your side's monopoly on virtue.
RWH is certainly not "my" guy.
You sure sound a lot like him.
Identity politics?
Seems to me that the right is the group engaging in identity politics. What else is white supremacy?
A bogeyman.
It's 99% imaginary. Bringing it up without irony marks you as very likely either a liar or a fool. It's hard to guess which.
Ben, read this blog and you'll see far more discussion of correlatives to whiteness than makes a lot of sense given your statement.
You seem to have been fooled.
Ah yes, none are true scottsmen.
Of all people, you should know when you're being trolled. If you're pretending not to notice, that's the other alternative — dishonest.
They're 1% not imaginary. The other 99% are either trolling you or just regular people who are falsely accused.
Ben, you seem to be assuming without evidence that anyone on your side that you think has gone too far is just trolling.
That's a great way to never confront the rot in your own party.
Is "too far" some (dishonest) pearl-clutching in this comment? Or do you think [one sort of people] should be protected from being offended — with (of course) no reciprocal obligation for them?
I wonder who you think "[my] side" is? I'm not in favor of sides.
The number of people who express hatred of non-whites is a very small fraction of the number of people who express hatred of non-leftists. My side is the side that tells haters to stop the hate, grifters to stop stealing from their neighbors and go do honest work, and liars to stop pretending and faking and making up stories.
IIRC Rep Pressley agrees with that statement with a few modifications:
None are true brown faces…
None are true black faces…
None are true asian faces…
None are true queer faces…
Talking about anything but Trump, I see.
The whole Trumpist movement is a giant exercise in identity politics.
How blind can you be?
Some of these people (or their very recent ancestors) came from countries which were war-torn, violent, with governments of minimal rights and a whole lot of abuse. And the United States took them (or their parents) in.
So rather than trying to "drain the swamp" should we tell Donald Jr, Ivanka, and Eric to go back to the Czech Republic or Germany?
Ilya Shlyakhter
The flaw in your "took them into their house" analogy is that once someone is a citizen, the U.S. is their house every bit as much as yours. No one is "more citizen" than another ("No Title of Nobility shall be granted by the United States"). So, to the extent they owe gratitude to the U.S., they owe it to themselves as much as to you, since they're the U.S. as much as you. Second flaw is that, unlike the beggar in your example, citizens aren't just takers; they assume obligations towards the U.S. (e.g. agree to be drafted in case of war). So granting of citizenship isn't just charity. And surely elected Congresswomen aren't just takers; they're clearly contributing the U.S., more than most. And criticizing the government is what they were elected to do.
There's no conflict between noting that people have no obligation to stay in a bad situation, and noticing that if everybody who thinks it bad flees, it's never getting better.
But, mainly, I'm really tired of the overuse of accusations of "racism". Ethnic prejudice? Quite possibly. But, what evidence have you of racial prejudice?
It's bad enough that the left has made "racist!" their all purpose, content free epithet. Don't join them in that abuse.
If your defense of the President is that ethnic prejudice isn't technically racism, you're in a bad way.
Won't someone please think of the semantics?
Yeah! No fair shuffling the buzzword deck! This name-calling is focus-tested.
Brett B needs to learn to follow the script, like the Dems did with Mitt Romney in 2012. Can you imagine if Mitt were elected? He'd be winding down his 2nd term right now.
Let's shelve 'racist' and use 'bigot.'
But the bigots won't like that, either, because one of the great achievements of the liberal-libertarian mainstream is that our conservative bigots don't want to be known as bigots any more, at least not publicly.
Ethnic prejudice? Quite possibly. But, what evidence have you of racial prejudice?
Boy. That wins the prize for lamest excuse of the century.
Riiight. It's "lame" to insist that people not pick words at random, but instead use the right word.
Using the worst accusation you've got available, even if it's not what the target is actually guilty of, and even if you've overused it to the point where half the population ignore it, is the new hotness. Precision is lame.
It's easy to call President Trump a racist or a bigot or whatever.
The fact is that he is an ignorant buffoon who looks down only at . . . everyone.
Brett,
I said it was a lame excuse, which it is.
I mean, if you want to criticize Trump for his blatant ethnic prejudices go ahead, but I haven't seen you do it. Mostly you slither around making every excuse you can think of for the asshole, all the while claiming you don't really like him. Sure.
Regardless, given what we actually know about "race," ethnic prejudices of some kinds, like Trump's, can fairly be called racist.
swood1000
I think that Trump's disparagement of such places as Somalia is cultural, not ethnic. Ethnic can be thought to include a racial component and I see no evidence that Trump's criticism is racially based. Why should we assume it is racial rather than cultural?
Because only one of the four is from Somalia?
And do you honestly believe Trump knows a damn thing about Somalia?
And do you honestly believe that someone who came here from Somalia as a child is somehow "infected" with whatever bad features Somalia has?
Is this intended to be evidence that Trump's criticism is racially based? Could you clarify it for me? What is the evidence?
It's intended to point out that whatever you think of Somalia and its culture, it is only applicable to one of the four.
Do you think he's criticizing them for their ideas? Funny, he hasn't told Bernie Sanders to go back where he came from.
So you think that a fair reading of Trump's tweets is that people of color who appear not to love this country should leave, but whites who appear not to love this country should stay?
He didn't say "leave." He said go back where they came from.
And you think that a fair reading of his tweets is that he would say that to persons of color but not to whites?
I think that it would take willful blindness of both the history of that attack line and Trump's personal history to think otherwise.
The irony that this is being posted by Ilya, an outspoken advocate for open borders, is palpable.
IDGI. I disagree with him, but this post is exactly in line with his general thesis.
ME2R
Yes, it's about time for ppl who have been here all of a minute to leave. For the most part, they have had no investment in this country, their families have shed no blood defending this country, and they have built absolutely squat, and relatively contributed nothing but grief and crime. Rather they stole across our borders, violated our laws, mooched off the American taxpayer, denigrated our heritage and demanded that we emulate their sh*thole countries. And they have the audacity to school us on what "America" is. Guess what, it's not them! there is no magic dust that makes this country special. Rather it is the ppl who built it. And these squad of 4 and ilk, -those who hate our country, hate our heritage, hate our struggles, are ashamed of America- are the very kind of ppl who have made their countries intolerable sh*holes. So yes, clean your own house. and that has nothing to do with color of their skin, rather it has to do with what is lacking in their very character. They are not pioneers, they are not innovators, they are not self sufficient. (And most likely never will be given the IQ disparities). They are not builders – they are rocks in our pockets, they are whiners, they are perpetually offended children that will sink this country. We are not your mamas honey, and you did not build this house. I agree, go home!
ppl who have been here all of a minute
shed no blood defending this country
mooched off the American taxpayer
they have the audacity to school us on what "America" is
These are members of Congress.
who hate our country, hate our heritage, hate our struggles, are ashamed of America
Pointing out flaws isn't hate.
they are rocks in our pockets
Nice phrase for undesirable citizens. How does that sound in the original German?
The 'squad' certainly seems to hate this place. There is a fine line between criticism and complete rejection (just as there is a fine line between clever and stupid), but all of this talk of white supremacy and the inherent racism of the whole damn country, etc. sounds a lot more like just flat out rejection than considered criticism at all.
And I'm still waiting on the loopy left to settle on some intelligible conception of 'racism', but it becomes more and more clear every day that the term 'racism', like the term 'fascism', just means anything that our little tinpot Maoists don't like.
So your thesis is that 4 members of Congress have completely rejected America?!
I like how you're abusing what a Maoist is in order to show how racism is being abused.
Anyhow, for all your bellyaching you have skipped over an important point. What Trump tweeted? Explain to me why it's not racist.
Did Trump even say anything about their race? (Answer – no). Liberals are reading heavily into it and screaming "racism" because they want to deflect from the fact that this squad of liberal losers just straight up hate America.
Telling nonwhites to go back to their home countries when they are citizens is pretty blatant, Jimmy.
He's not saying that to Pelosi.
Dude, don't play obtuse.
You're deliberately evading the difference between, "telling non-whites", which is to say, people chosen on the basis of not being white., and "telling people who happen to be non-white", which is to say, people chosen on some other basis that are non-white by coincidence.
These people weren't chosen on the basis of their "race"; They were chosen on the basis of national origin and their own rhetoric.
I'm willing to criticize Trump on this, because Trump talks as though they were themselves immigrants, when 3 of the 4 were born in the US. And that is, while not "racism", at least in some degree bigotry.
But the criticism is over the top, due to the false and malicious accusation of racism where none is evidenced, and due to ignoring the underlying point about people who have only complaints about the US, even though they've actually got it pretty good.
That's what really pisses me off about the tweet on reflection. There WAS a valid underlying point, and he had to go make some stupid mistake that aided in it being attacked. (I say "aiding" because it was going to be attacked regardless.) That's an own goal.
You think this is a coincidence? Brett, this is getting ridiculous.
I never get told to 'go back where I came from.' My Latino co-workers have. I haven't asked my black co-workers, but I'd guess I'd find a smattering of 'go back to Africa.' That's what this is; that's why it's racist.
The underlying point seems to be about who is a real American. (whites and also people who support Trump of any color). It's not lost on me, and I'm pretty sure for all your semantic gymnastics it's not lost on you.
Tell us Brett. What is the moral difference between attacking someone because of their "race" and attacking them because of their national origin? Assuming there is some meaningful difference, a point you are bizarrely hung up on, what makes one worse than the other, exactly?
Who the heck said there was a moral difference? Is that what this is about, I point out you're using the wrong term, and you think I'm making a moral point?
Yes, Brett, I do.
This is your standard, "I wasn't in the delivery room" move. "Oh, I just meant…"
Bullshit. You were defending Trump against charges of racism and stumbled into the ethnic business. If you thought the ethnic prejudice was wrongful you would have said so and maybe pointed out whatever difference you think there is between the two terms.
Instead you make a big deal about nothing.
Well hang on a minute. Why does it matter what arbitrary economic zone they originate from? Nations are just legal constructs, after all. That's why an American whose family has been here for centuries and an American who arrived last week are equally American. I mean it sounds like you're implying that people who live in a given nation have more in common than just where they happen to live and that's extremely bigoted.
You certainly haven't addressed my point about whether there is or is not a distinction between criticism and rejection. Civil rights protesters who asked for equality before the law were criticizing American institutions from within the tradition of American politics. Radical organizations, like the Black Panthers, were rejecting the American polity. It seems to me that the so-called 'Squad' and many of their sympathizers are a lot closer to the latter than the former.
In terms of defending Mr. Trump, I didn't make the statements so I don't have to defend them. Trump made no reference to race, and so you need to explain why it is racist, but also what racism is, since it is clear that calling people names is merely a reflexive action on the part of the you and yours. I have no problem at all, however, with the argument that immigrants to this country who whine and stamp their feet like toddlers about not getting a good swig at the teat of government should be told to take a hike.
My reference to tinpot Maoists apparently suits you well, so I'll leave that as it is.
Running for Congress rather shows you haven't rejected America.
The Black Panthers were radical, but did not reject America. No more so than people on this blog did when Obama was President and they were highly critical.
Why it's racist to tell women of color who were born here or naturalized citizens to go back to their home countries? I think you know.
Calling me a Maoist because I disagree with you on an Internet web forum? Way to devalue that horrific philosophy, you tool.
How are they "rejecting the American polity?" Because they don't agree with you on everything.
Guess what. You don't get to define what it means to be American. Nor does Trump, or RWH or anyone else.
So there's probably a lot of things I'd consider "racist" that you wouldn't.
But singling out 4 members of ethnic minorities, 3 of whom were born in the US, and telling them to go back to their own countries. An attack he's never used on one of his white opponents (some of whom were born in other countries).
How is that statement not racist?
It's not racist because, trivially, "ethnicity" isn't "race".
You manage to be both pedantic and wrong here, Brett.
Do you think Trump would have said 'go back where you came from' to white Congresswomen?
Then it's about race, not ethnicity.
I think he would have said it in a heartbeat. And Occasional Cortex IS white.
You've got your foibles, but you're above lame nicknames.
No one tells white people to go back where they came from, Brett, that's silly.
And why don't you ask some of the neo-phrenologists on this thread whether AOC is white? The purity of Latin blood seems a matter of some dispute.
Yeahnope. She's earned that one, and it's a lot easier to remember than her real name.
And, yes, I think Trump would be perfectly willing to tell a non-Hispanic white (There's a reason that's a thing, rather than redundant.) immigrant to go back where they come from.
You take him for a racist, you make assumptions about what he'd do if he were a racist, and then you treat those assumptions as confirming your take on him.
It doesn't work that way, Sarcastro, even if it is a common way for people on the left to 'reason' about their foes.
Not all those Congresswomen are immigrants. They share two things – not being white and being outspoken foes of Trump.
I don't see what assumptions I'm making – what he said is pretty clear, hence the furor.
What exactly is "race," Brett? Skin color? National origin? Ancestry?
Ethnicity and "race" as it's popularly (mis)understood are pretty tightly intertwined.
'I am a bigot, but don't call me racist because my ugliness derives from more than precise racial classification.'
That ought to work for Republicans about as well as everything else they've tried in the culture war during our lifetimes.
The Manchurian candidate? Pls, are you trying to convince me that Congress acts in the best interest not the American ppl. Well, bless your heart.
And they are not "pointing out flaws," they are tearing down our statutes, denigrating our founding fathers, erasing our history, and silencing our voices with their ever growing control of our media, tech communications, and schools. They are advocating violence, sniper shooting our police, and rioting (vandalizing and burning as opposed to peaceful protesting) in the streets.
And hey, what's with the removal of the American flag and the hoisting of the Mexican flag.
Yeah, just criticizing.
Wow. That's quite a list.
Guys like you are going to hate the next 10, 20, and 50 years of American progress.
JohannesDinkle
I sympathize with a poor person coming from a failed state like El Salvador. About one third of al Salvadorians now live in the US.
Put yourself in the place of a young man in a third world country. Because of global capitalism he now makes much more than he his father dreamed of, and his income increases every year. In fact, he now has a cell phone with internet access and the ability to amass enough cash to travel to the US, where he will not just make ten per cent more next year as at home, but four to six times more. He knows this because of information gotten online, and he knows how to claim asylum. He also knows how to disappear before any hearing, which he knows he will lose.
There are well over a billion like him, able and encouraged to make the trip.
How many can the US take in in a year? A million? Ten million? Fifty million? There are no real physical barriers to any of these numbers, so what is your limit, and how will you enforce that limit?
In the end, it is not about open borders being good, and border enforcement evil, but about practical limits of what we can do, and are willing to accept.
It would be nothing short of genocide to prevent all seven-billion-plus humans on this planet from migrating to North America and Western Europe to take advantage of the magic dirt that makes countries in these locations so prosperous.
Yes having a successful civilization has absolutely NOTHING to do with culture or heritage. ABSOLUTELY NOTHING. You just need some magic beans and dirt and there is no reason why any successful people should keep all those magic beans and dirt to themselves.
W Tx Intermediate Crude
"If you pick up a starving dog and make him prosperous he will not bite you. This is the principal difference between a dog and man."
― Mark Twain
That sounds like speciesism to me. Off with Twain's head.
I fail to see what is wrong with calling out those who flee their own shitty countries to come here and then complain about not getting enough free stuff here. Perhaps they should spend their time fixing their own countries and I don't see how we are helping out the world by depriving those countries of citizens who are reform minded enough to help their homelands.
I eagerly await the day of your replacement, Jimmy. By your betters. For the betterment of America.
Until then . . . carry on, clingers.
So you are endorsing genocide?
Silly goose, it's perfectly OK to endorse genocide when the group being genocided is on Facebook's list of hateful organizations.
Yes silly me I forgot that calling for the mass extinction of people the left doesn't like is A OK in liberal la-la land. And it is totally NOT racist when that implication is white people for some reason.
"Do not post:
Threats that could lead to death (and other forms of high-severity violence) of any target(s), where threat is defined as any of the following:
Calls for high-severity violence (unless the target is an organisation or individual covered in the Dangerous Individuals and Organisations Policy)"
Who counts as a "dangerous individual," according to Facebook? The list includes InfoWars host Alex Jones, populist pundit Paul Joseph Watson, conservative activist Laura Loomer, Louis Farrakhan, and Milo Yiannopoulos.
Facebook also maintains a list of high-profile political figures who it monitors for potential designation as "hate agents." The list includes black conservative star Candace Owens, author and think tank founder Brigitte Gabriel, and British politicians Carl Benjamin and Anne-Marie Waters. They have not been designated as "dangerous individuals" yet — but everyone has been designated as such was once on the "hate agents" review list.
These Congresspeople have plenty; they're not fighting for themselves.
And America is their homeland. That's how citizenship works.
Seems to be THEY don't identify America as their homeland. The are all about their hyphenated status. If they care so much about their roots perhaps they should go back to their country of origin and explore those roots further.
THEY don't identify America as their homeland.
Why? Because they don't agree with morons like you about everything?
You guys are so stupid you can't even tell what moronic bigots you are.
Running for Congress is a pretty strong indicator you're not rejecting America.
It is when you campaign on platforms that are antithetical to American ideals, to pander to those who openly express hate for America.
'antithetical to American ideals.'
As defined by you.
By that logic, are all Democrats rejecting America because you don't like their policies?
It's not defined by me, it's defined by the entire history of this country (including its founding documents) up until this decade. You seem to have a poor grasp of just how hard the Overton window has turned left, my friend.
The entire history of America and it's founding documents as interpreted by you. Adding sophistry to your prideful grasping at being arbiter of Americanness is not helping your case.
Yeah, America sure has changed since the 1770s. And if you think you've defined those changes into our modern left-right political spectrum, that just means you've gotten way too reductive.
I'd love to hear what interpretation of the Constitution makes you believe that Americans are beholden to throw open their borders for anyone and everyone who wants a piece of the pie in the world's richest country, much less where we are supposed to shower them with benefits at our expense.
(Protip: The New Colossus is not a founding document or in fact a document at all)
I bet they ran out of space on the parchment when they were writing the Constitution, and it was really supposed to say "For ourselves and our posterity (plus everyone else! Hit like if you agree!!1)"
Claiming that anyone with a US passport is equally American is like saying the Queen of England is equally as British as the immigrant arriving on the last Eurostar.
That you would invoke Britain as an example of how heritage works says a lot about how you view America.
That you would conflate immigrant residents with citizens is also telling.
That you, Somin, Progressives, etc. would conflate illegal foreign nationals with legal foreigners and permanent residents (let alone with citizens) is also telling.
Why do you prefer illegal foreigners over legal foreigners and citizens?
Illegal foreigners are a lot more tolerant of corruption in government and destructive leftist policy than heritage American stock.
heritage American stock?! FFS.
Shocking, I know. How can anyone be so racist and bigoted to suggest that people whose families have lived in a nation for centuries might have a greater interest in the well-being and future of that nation than the person who arrived last week?
the immigrant arriving on the last Eurostar is not about illegals. If anyone is conflating, it's mysmartstuffs.
I'd love to hear what distinction leftists are making between immigrant residents and citizens. If anything, once the resident gains citizenship he loses the free health care and college tuition.
Don Nico
Sarcastro,
Actually, if you think back 8 months, AOC was whining that she could not afford to live in DC. Of course, she could have gotten a loan, but was it pride, stubbornness or principle that made her feel that it was better to complain loudly about her fate.? The calendar flipped and now she answers the question: freebies for all paid for by confiscating the wealth of the "wealthy" without real due process.
That is how leftwing fascism works. What else is M4A, the Green New Deal, free education (including room and board) from state controlled colleges and universities but the Corporate State in action?
Yeah, she wants better Congressional pay, and laid out a pretty good case as to why.
But that's not the social safety net she's fighting for.
I'm not her biggest fan; I think she's hazy on how to pay for her policies. And kinda hazy about her policies.
But your explaining that what looks like fighting for those with less means then her is actually fascist?! That's just libertarian melodrama.
Especially when Trump is kinda getting white nationalist up in here.
There's no good reason why Congressmen should be paid enough to buy a house in DC. They're not supposed to have their residences there, and at least nominally, it's not a job with long term security.
There's a good argument for a Congressional dormitory somewhere fairly close to DC, because it really is true that people who somehow manage to get elected without already being wealthy DO have trouble affording housing. I've heard of members of modest means sleeping in their offices.
We need to face up to reality, not what we wish Congress was.
In reality it is a longer term job and pretending it's not just prices non wealthy people out. Or at least punishes them for no good reason.
Hey, what did I suggest? A Congressional dormitory.
And getting paid more than 97% of the population is not "punishment".
As the job is long term, a Congressional dorm is still punishing and unrealistic for how the job operates.
Though IMO really more money for good staff would be the better fix.
What is a fascist tendency is not the rhetoric of Ms. AOC and associates, but the proposal of Corporate State enterprises to remedy all perceived societal issues as government monopolies enforced by the police power of the state. That is not melodrama; it is Mussolini's historical model.
That's not Mussolini's historical model, not is it fascism as currently understood. Where did you get your understanding of what fascism was/stands for?
So far, one Conspirator declines to appease Republican-conservative bigotry. It figures that it's the libertarian.
Thank you, Prof. Somin.
I encourage you to find a better class of political playmates.
According to you, he'll have to wait until the great white genocide is finished to find his true countrymen (oh, sorry for that, I meant of course countrytheypeople).
No genocide. Just old, cranky, obsolete clingers taking their stale thinking to the grave in the natural course and being replaced in our electorate, just as naturally, by younger, better, less bigoted American voters. American greatness, beauty, and progress in action.
I am happy in the knowledge that I will be long dead before your wish to Haitianize the country is complete. I only hope that you are still alive when your cultural suicide mission is done, so that you can see your relatives reduced to begging for scraps, scratching their scabs, while you welcome the new dark ages.
The problem with your satisfaction is that it rests in the assumption that these people will one day recognize the folly of their actions. This is not the case. When they reduce the nation to squalor, they'll blame it on you. Then they'll leave to find another host elsewhere having learned nothing from their experience.
You one of those 'we gotta kill all the liberal' types, then?
Of course not! The nice thing about leftists is that they are herd animals. All we need to do is make it plain that their behavior will no longer be tolerated, then the vast majority will return to normal. If we play our cards right we should not have to make an example of anyone, and even if we did exile to a third-world leftist country of their choice is always on the table. There's no need for your eliminationist rhetoric.
Exiling liberals is still elimination, you crazy zealot.
No it's fine, I have you on my list of Dangerous Organizations and Individuals so I can assure you it's all quite above water.
"When they reduce the nation to squalor"
My side favors and builds our strongest universities and research institutions. Your side prefers backwater religious schooling (fourth-tier, science-disdaining, censorship-shackled goober factories) and downscale homeschooling.
My side favors and builds modern, successful, educated, taxpaying communities. Your side constitutes the depleted human residue that remains in our desolate, subsidized, can't-keep-up backwaters after generations of bright flight.
My side contributes the technological and scientific advancement that benefits American the world. Your side opposes research, fights for "intelligent design," and pines for good old days that never existed.
Other than that, great comment!
Oh no! You got me there, I have no response. I am ashamed of myself and I feel I should be punished. I think the appropriate response here is for you enlightened folks to leave me and my bigoted, hateful, backwards brethren to rot alone in our own nation, so that we can wallow in our own stupidity while you show us the blinding light of a progressive future. There's probably just enough of us to fit in Idaho, Montana, and western Washington and Oregon; I don't think you guys really need those places to establish your diverse utopia anyway. I'll pack my bags.
How soon till someone starts talking about blood and soil?
That's the constant undercurrent among the Conspiracy's carefully cultivated conservative following.
You mean like how liberals show up in America demanding earth and water like a Persian messenger?
billatcrea
Sarcastr0,
From what I've read above, they already are.
Did you know that the Trump political movement fervently embraces various individuals of every conceivable race and ancestry who agree with their core values? Hundreds of them have become minor political celebrities.
Let's be clear, this is not mere criticism of the government.
This is a sizable contingent of people who demand that anyone and everyone who crosses the border be provided with a wealth of free benefits for which Americans whose families have been here for generations foot the bill.
This is a drastic remaking of the American government into a socialist state that has no basis in the Constitution or any part of the legal tradition of this country up until the people who demand it came here.
If your libertarian principles insist that any person should be allowed free movement into a country and then change it for their benefit at the expense of those who already reside there, then damn your principles.
If someone comes to your house and can only complain, all day, every day, you'd ask them to leave.
If they started making bigoted comments about your people and refused to stop or apologize, you'd ask them to leave.
If they continued to make demands of you while offering nothing themselves, not even a thank you for your hospitality, you'd ask them to leave.
These congresswomen don't seem to like America or Americans very much. Why don't they want to leave?
There's no duty for us to be welcoming to jerks and grifters and bigots.
Why would they want to leave? They have the opportunity to extract all the wealth they could possibly want from the world's richest country and no matter how much they denigrate their host population, how many lies they tell, or how ridiculously brazen their policy proposals become, they'll be showered with praise by half the country.
These people hold elected office. Like it or not, they represent a bunch of Americans.
Telling these citizens to go back where they came from, when some of them were born here? That's not calling them rude, that's being a bigot. Cut it out.
Hospitality has been answered with ingratitude and spitefulness. Hospitality withdrawn. It's long past time we put up an "***holes not welcome" sign.
You will be replaced, Ben. America will continue to improve against your preferences and efforts. Losing a culture war to your betters has consequences.
So boring.
And who are these betters, again? The last I looked they were a galimaufry of deadbeats, criminals, perverts, and self-loathing white people. That's an interesting melange, and I'm happy not to be a part of it.
Don't feed the trolls
"And who are these betters, again? "
The betters are those who prefer education (all of our strongest universities) to ignorance (backwater homeschooling and religious schools).
Reason to superstition.
Education to ignorance.
Modernity and progress to backwardness.
Tolerance and inclusivity to bigotry and insularity.
The betters are the liberal-libertarian mainstream that has shaped America's progress and won the culture war.
The voters who register as Democrats rather than as Republicans.
The residents of modern, educated, successful communities rather than those who inhabit the left-behind, desolate backwaters.
Uh, Ben, it's their house as much as it is yours.
They should solve a problem and contribute to society instead of complaining endlessly and trying to tear it down.
But your proposition should be clarified:
If they are the same as me, that must mean it is open season to treat them as badly as they would treat me, right? You are endorsing we treat them with endless derision, aren't you? Because that's how they treat us.
Just because you don't like what they're advocating for doesn't mean it's not a contribution.
Justifying your own bad behavior based on your perception of the other side's oppression of you is a standard rationalization.
What do you mean "us"? I'm a libertarian; I treat both you and them with with endless derision.
LSchnapf
is the difference that the immigrants of our ancestors came legally through Ellis Island and had family to take care of them?
Ilya seems to think it racist to suggest immigrants go home. Racist? This is not about race.
He thinks it reeks of ethnic prejudice? Oh?
Ilya hardly has a leg to stand on, since he favors the most possible extreme position on immigration – let anyone, from anywhere, in for any reason whatsoever.
But instead of recognizing the inherent contradictions in that view – that actually letting it happen would end the very liberty he cherishes – he lectures Trump and throws epithets at him.
This is the crux of the issue, and why no one takes libertarianism seriously.
The United States is by far the most libertarian country on Earth; it has the largest population of libertarians, arguably the only significant population of libertarians, of any country.
This is as good as it gets, there are no oppressed libertarians elsewhere in the world, no people who only need to feel the sweet breath of liberty to open their eyes to it. If there were, we would see libertarian societies or movements outside the US, of which there are none.
By extension, there's no one outside the US who is interested in coming to the US to further the cause of libertarianism; in fact, the opposite is true, virtually everyone who comes here wants more government programs, more speech control, etc. and has no practical or academic interest in the libertarian concepts that are intertwined with this country's history.
A normal person would acknowledge this reality and understand that for libertarianism to work the people who believe in it must be able to organize and insulate their society from being co-opted by non-libertarians. Instead, in pursuit of a philosophical consistency that no one but themselves honor, libertarians insist on throwing open the borders to allow themselves to constantly be swallowed up by a majority of statists.
This is why libertarianism is inherently unworkable as anything but a passive and self-defeating thought exercise, and why the so-called alt-right is populated by former libertarians.
You can't create a libertarian society through the wholesale import of people who are not and will never, ever be libertarian.
And yet the people who are most aware of this critical fact, who are in the best position to keep libertarian principles alive, are called racists and bigots by people like Ilya Somin.
I think it needs to be remembered that the libertarian movement wasn't always relentlessly open border. I suspect that, even now, most libertarians aren't.
When I was an activist in the party and movement, starting back in the late 70's, though the mid 90's, it was clearly understood that, while open borders might be an eventual goal for a libertarian world, it would have to be the LAST thing achieved, not the first. Because it IS suicidal for a welfare state to have open borders.
We understood path dependence, that sometimes it's important what order you do things in.
The LP is an institution, and the "march through the institutions" is a real thing. Basically, organized libertarianism isn't controlled by libertarians anymore. It's controlled by "liberalitarians", people who like to call themselves libertarians, but whose fundamental instincts are left wing, not libertarian.
A stirring call to order of another meeting of Libertarians For Authoritarian, Cruel, Bigoted Immigration Policies And Practices.
Conducted jointly with Libertarians For Tariffs, of course.
And Libertarians For Statist Womb Management.
And Libertarians For The Death Penalty.
And Libertarians For Big-Government Micromanagement Of Ladyparts Clinics.
And Libertarians For Ted Cruz.
And Libertarians For Torture And Endless Detention Without Trial.
And Libertarians For Donald Trump.
And Libertarians For Government Funding Of Schools That Teach Nonsense.
Carry on, clingers.
bevis the lumberjack
One of the most open bigots on the board decrying bigotry from other people. Priceless……
And here is what a 19th century German immigrant, and later Republican senator from Missouri, had to say about criticizing one's adopted country: "The Senator from Wisconsin cannot frighten me by exclaiming, "My country, right or wrong." In one sense I say so too. My country; and my country is the great American Republic. My country, right or wrong; if right, to be kept right; and if wrong, to be set right.
John Rohan
Trumps point is that why come here if you hate this country and it's flag?
In any case, the irony is that all these comments about how the migrants can't fix their countries is blatant racism. Only white countries can be prosperous? And just where will all these migrants go, once there are no countries that are majority white?
Then why did he direct it at people who didn't come here, but were born here?
He didn't direct it at anyone specifically. Like most tweets, it was a shotgun blast.
Why do you hate standard English, John Rohan.
(If your background includes backwater religious schooling, or homeschooling conducted by right-wing rubes, or a fourth-tier or unranked conservative-controlled college campus, that would suffice as an explanation.)
My background includes private education and an elite graduate school. If you have to resort to ad hominems using my grammar as a figleaf (which, not that it matters, but is really the result of my mobile device making punctuation decisions for me), then you have already lost the argument.
If you don't like America you are free to leave and go to another one of those glorious countries in the World that you always tell us we should be emulating. Oh wait…those countries don't want you. In fact, they don't really take immigrants. They might warehouse them for short period of time, but they really really don't want them to become citizens or permanent residents. It is only here, in America, where we are expected to throw open the doors to just about anyone and even let them stay if they are actively breaking our laws.
Peter Gerdes
I think it's worth pointing out that often the most effective way for people to 'fix' a repressive and backward country is exactly by emigrating to a free state like the US, gaining the skills and making the connections necessary to direct assistance to their home country and/or apply international pressure.
Not that immigrants have any more responsibility to assist their home country than any of us do (though, if one has special knowledge/ability regarding some way to improve the world one should exercise it).
Liberty Lover
He wasn't talking about all migrants, just those trying to destroy this country's values, borders, culture and form of government.
Since one definition of liberty is, "the power or scope to act as one pleases," I guess you're really not a lover of liberty since you're criticizing other people's choices and motivations.
Or do you mean liberty – but only on your terms?
So in other words we have the power or scope to act as we please until the rest of the world notices that we have nice stuff and moves in to take it.
Jerry B.
Pres. Trump has it wrong.
Folks from shithole countries aren't supposed to go back and fix them.
We (the United States) are supposed to go and fix them, by throwing money at them. And no military involvement please, or we'd be imperialists.
We "fix" them by dropping bombs, invading, killing, etc. In addition to throwing ridiculous sums of money at them and building fences and walls for them, while our own border is left to suffer invasion at the current rate of 1.8 million annually.
"We came, we saw, he died"
I know I am coming late to this comment thread, so I did a search and I am suprised find that nobody mentions the closest Democrat comparison to Trump's tweet. One that Democrats didn't care about, but Republicans did. The shoe is on the other foot I guess.
Everybody forget when the Gov of NY, Cuomo, told all conservatives to "go home". He said the same thing, telling half the country, and his state for that matter, to get out of NY.
"Their problem is not me and the Democrats; their problem is themselves. Who are they? Are they these extreme conservatives who are right-to-life, pro-assault-weapon, anti-gay? Is that who they are? Because if that's who they are and they're the extreme conservatives, they have no place in the state of New York, because that's not who New Yorkers are." – Andrew Cuomo 2014
I mean, that's pretty dumb, but telling your political opposition to get out of a city is not quite the same as telling a group of your nonwhite political opposition to get out of the country.
Plus, of course, Cuomo is not the head of the national Democratic Party.
And, it was 5 years ago and that's the best you got.
"telling your political opposition to get out of a city is not quite the same as telling a group of your nonwhite political opposition to get out of the country"
Its exactly the same. The fact that two of the four Trump criticized are "nonwhite" means nothing.
Unless you want to reach back to the Greek polis, Cities don't occupy the same cultural space as nations. No one ever talked about the blood and soil of Cincinnati.
Trump told his political opponents to get out of his jurisdiction, Cuomo told his political opponents to get out of his jurisdiction.
Cuomo, btw, is not mayor of NYC.
I'll just let you leave that argument that cities are just like countries right there.
"they have no place in the state of New York"
Cuomo was telling people to get out of his STATE.
Bah. Fair enough. I'm from there and still screw it up.
But states? Still not like countries. Not since like the Civil War. Plus, of course, I'm under no obligation to defend Cuomo whereas you guys can't seem to help but defend Trump.
It wasn't a city, Cuomo is a Gov of NY state. How would you feel had the the gov of Texas strawmanned liberal positions and told them the don't belong is Texas, explicitly so.
Yea, it is whataboutism, but the point is to note the hypocrisy going on here. Hannity made lots of hay with that Cuomo quote, today he is still pro pro pro Trump.
Granted, I think Trump was a step to far, as they are citizens, even though he is right that they hate America. How's this, he is factually wrong but morally right 🙂
Cuomo sucks. This is a very small bit of the many, many reasons why.
Trump sucks way more because nations are not states.
And you don't run for Congress if you hate America. You and I have extremely different ideas of what America should be, but neither of us hates America. So quit with the attempts to delegitimize the policy proposals of the other side.
"And you don't run for Congress if you hate America. "
Assertion without evidence. How else do you takeover the country's government in a democracy except running for office?
O-Cortez, for instance, compares the US to Nazi Germany just about every day. Don't seem much like love.
Iman won't even condemn Al-Queda which killed 300 Americans. Also don't seem much like love.
Takeover the government by winning elections? That's actually believing in America, Bob.
We have concentration camps – that's a fact. With all the historical baggage that implies. Pointing it out doesn't mean you hate America; it means you believe in it's promise enough to try and reform it's sometimes very deep issues.
Iman isn't condoning AQ, dude. That talking point lasted maybe a day before it faded away for being too much of a stretch for just about everyone but you, it seems.
"We have concentration camps – that's a fact. "
No we don't. Its not a fact. Its insulting to the victims of real concentration camps.
Unless all jails and prisons are "concentration camps", which would make the term meaningless.
The people under detention are awaiting legal process, they are not being worked to death and there are no shootings or gas chambers.
"We have concentration camps – that's a fact. With all the historical baggage that implies."
And we're stretching for peak idiocy here. There is no commonality between the detention camps and, say, Dachau. Or Ravensbruk. Or Auschwitz 1. Other than the fact that they all had fences. You bust on Trump because he has no shame (correctly) but then demonstrate that you don't either.
Concentration camps are not death camps.
We've come to the point again where you are arguing against the dictionary for his version of reality.
From the Encyclopedia Britannica: Concentration camp, internment centre for political prisoners and members of national or minority groups who are confined for reasons of state security, exploitation, or punishment, usually by executive decree or military order. Persons are placed in such camps often on the basis of identification with a particular ethnic or political group rather than as individuals and without benefit either of indictment or fair trial. Concentration camps are to be distinguished from prisons interning persons lawfully convicted of civil crimes and from prisoner-of-war camps in which captured military personnel are held under the laws of war. They are also to be distinguished from refugee camps or detention and relocation centres for the temporary accommodation of large numbers of displaced persons.
We are literally concentrating a bunch of people into specific fenced locations, all from a particular ethnic subgroup. Their conditions are harsh, at least partially as a policy choice.
They don't get due process; they don't get access to lawyers. They don't necessarily get access to their families.
And the conditions they are held in have killed some of them.
No one is lawfully convicted, no one is a prisoner of war, no one is a refugee or displaced person. So…don't know what you were trying to prove there.
Arguing the technicalities of what's a concentration camp to avoid talking about how racist Trump is.
"don't get due process"
A lie.
"killed some of them."
Who? How many? Were they sick before they were arrested?
"some" is doing a lot of lifting as well.
They get picked up and put into the camps; there is no trial. Then they stay there, in the camps. You can say 'that's all they deserve' but it's not a lie to say there is no due process.
I'll leave it to you to search up the examples of adults and children who have died due to lack of care in the camps, and whose stories have managed to get out.
Who will I side with as to what is a "concentration camp" Sarcastro or Encyclopedia Britannica? I think I will go with the encyclopedia on this one, as will anybody without cognitive dissonance getting in the way.
Note, the official definition says a concentration camp is "distinguished from refugee camps or detention and relocation centres for the temporary accommodation of large numbers of displaced persons."
These are not refugee camps or detention and relocation centers. Nor are these people temporarily displaced.
It fits the definition.
Says you, but not the encyclopedia, which makes a distinction. Appeal to authority fallacy, sure, but when it comes to word meanings, I'll go with the encyclopedia.
You seem to cede that the definition body is on point by looking to the exceptions. Except none of the exceptions apply, as I noted above. So could you point to where you're finding a departure?
Alright, Auschwitz is out then.
So, Dachau.
"Number of inmates	Over 188,000 (estimated)[2]
Killed	41,500 (per Dachau website)"
Or Ravensbruk
"Number of inmates	130,000[1] to 132,000[2]"
Killed	45,000–50,000[3] to 117,000[2]"
[both from wikipedia]
What Border Patrol or DHS facility in the US has those death rates?
Let's not mention the treatment that the survivors of Dachau or Ravensbruk had to endure.
Oh, thank goodness our death rates in our concentration camps are below those of the Nazis!
Those people were murdered by the Nazis, they didn't just die.
No one is being murdered in any Border Patrol center.
Dachau, Ravensbruk, and Auschwitz 1 were not so-called death camps. They were run of the mill work camps (you know, slave labor).
Are the people in the detention centers put there for their political views, in addition to their ancestry?
Are they forced to perform slave labor for 12+ hours a day on barely sustenance diets?
If one member of a cell block escapes, are 10 randomly selected prisoners taken out and executed to make an example?
If one of the prisoners expresses a political view opposed by the state are they executed on the spot?
Is there a morning roll call every morning during which examples are made of prisoners who violated trivial camp rules by hanging them in front of the entire camp?
Are medical experiments being done on the inmates?
Oh, and you talk about "particular ethnic subgroups", but sorry, the Jews didn't start showing up in concentration camps in large numbers until several years after the system started. Initially it was mostly political opponents of the Nazis. They started with the Jews by herding them into ghettos.
You know, there are books and documentaries and all kind of ways to learn about this shit, but you don't care about actually accuracy. You insult the memory of the people who had to live/die in those camps, but bleating out political bullshit matters more to you than their memory. And honestly, you don't really care about the immigrants either, because if you did you'd have been complaining about "concentration camps" during the term of our last president when he was doing the same fucking thing.
This isn't defending Trump, it's defending the recognition of the suffering the people did back in the '30s and '40s, along with defending common sense. I actually thought you might be a serious person, but it turns out you're just another political zealot using bullshit to tarnish the other side while promulgating the idiocy of your own. Wasting my time here…..
You seem to think I'm saying we have Nazi camps. I'm not saying we have Nazi camps.
But we sure do have concentration camps, as America created for the Native Americans, and continued with the Japanese, and as Germany innovated on in such horrible fashion.
Oh, bullshit. AOC used the phrase "never forget". You yourself said "with all the historical baggage that implies". All the historical baggage. We can all see what the hell you're trying to say, lame attempt to walk it back to the contrary.
Minimizing the conduct of the SS to make political points. You should be ashamed, but like Trump and AOC you don't appear to be able to feel shame.
Yeah, our momentum has some troubling historical echoes. Doesn't mean our position is the same.
This part of the thread is not worth responding to anymore. Your quibble is not with me, but with the majority's understanding of the phrase "concentration camp" as expressed in a highly reliable source.
If you want to change the meaning of a word, you can try. That's how slang is created, but you've got a long way to go, and a lot of other people to convince.
No, it is an insulting rhetorical device that mocks the real historical victims of concentration camps. Be ashamed.
But then again, you are someone who is not sure whether Farrakhan is an anti-semite.
So let me give you a hint: when someone calls an ethnic group "termites" he is calling for their extermination. That is what most people think of when you use that term — if my neighbor said, "We have termites in our house" I would say "Hey buddy, better call an exterminator."
I am quite sure Farrakhan is an anti-semite. I'm not sure he's liberal.
What a bit of rhetorical dishonesty. They are interred because they have broken the law and entered the country en masse. Their ethnicity has nothing to do with why they are there. If 2 millions whites from Canada entered New York, they would also be interred.
And, of course, and of them can simply leave by agreeing to return to their home countries. The US govt will happily deport them. I don't know of any historical concentration camp about which you could say the same.
Do not blame the victim here.
They way these people are interred is a policy decision this administration has made in an attempt to deter others.
The very fact that they don't leave (almost as though they don't have the choice you put on them) puts the lie to the people claiming they're just coming here out of greed.
Apparently, though, you can run for gov of a state and hate the opinions of half of them.
Liberals like yourself (and the Suicide Squad of Congresscritters) have a different idea of what America *should* be. Yes. But if you want to fundamentally change America (like Obama and these Congresscritters), that means you dislike America. That you want to fundamentally change America means a priori that you don't like America because you want to change it from the way it is now, and how it was founded. This is simple logic.
Put aside the blurry line between hate and dislike, and that they are very, very close. How does one go about convincing fellow citizens to fundamentally change America? You have to convince them that they dislike America as founded as well. That, Sarcastro, is also delegitimization of the policy decisions of current citizens, and their ancestors.
Thanks for explaining to me that actually I totally do hate America.
You're pretty radical yourself in what you want for America. Does that mean you hate it as well?
You're close to a breakthough, don't stop now. Do you want to fundamentally transform America? Then that means you strongly dislike it, some might say "hate" as a synonym.
You've claimed to be a status quo kind of guy, but again and again, your pretty close to unwavering support goes to those who want to fundamentally transform America. That is the irony of those who claim to love America, but want to significantly alter it and not just tinker at the margins of more or less regulation or some such.
What have I called for that is radical? If anything, I've called for a colorblind society. I suppose many would see that at reactionary.
Do you want to fundamentally transform America? Then that means you strongly dislike it
You're making a rhetorical choice into a substantive one. Did FDR fundamentally transform America? Did Reagan? They both talked like it.
I am charitably gonna say you're pettifogging, as I think you don't understand.
FDR and Reagan changed American significantly, so did Jackson killing the bank for that matter. Do you not understand the difference between "significant change" and "fundamental change"? Significant just means "a lot" while "fundamental" means the basis for the existence.
What FDR, and Jackson, and Reagan didn't do, was undermine the legitimacy of the country itself, which is what "fundamental change" is.
You're caught up in semantics now. 'See, HE was making a significant change, but SHE wants fundamental change!'
That's in the eye of the beholder. What you see as fundamental isn't obvious or objective to me.
Taxing the rich isn't some assault on America's fundamentals. Neither is a more robust safety net. Neither is beefing up our environmental efforts.
I'm no Socrates, but he would have made you rage quit like Thrasymachus, because when it comes down to it, you can't understand the difference between (and can't be bothered to consult a dictionary) on how "significant" and "fundamental" have different meanings. And I did mention how we are not talking about things at the margin, like more or less regulation.
Someone who debates on a law blog should that words have meanings, and that matters.
I'm not saying they don't have different meanings, but rather that the distinction you're making is arbitrary and idiosyncratic.
It seems obtuse because you don't care how leftist radicals undermine the founding of the country in order to facilitate change.
Fundamental change means changing the reason behind, and for, and mutual understanding of, the existence of the thing itself.
Significant just mean big. Big change doesn't have change the reason for the country existing.
Perhaps you need a concrete example. Student loan forgiveness, although dumb, is not fundamental change, though it is significant. The Green New Deal? Fundamental change of the country from capitalist to socialist.
Whatever else, m_k, he wasn't making a racial – oh, excuse me, Brett, ethnic – attack.
Besides WTF does any of the have to do with Trump. Is that really all you can say in Trump's defense?
Is the tweet worse that it was racial?
Note, I'm not agreeing that it was racial because you and CNN say it was racial. Race was never mentioned. You both WANT to make it racial. Two of the four women are white.
And if you are able to take your partisan blinders off, I said that Trump was factually wrong (because they are citizens) but morally correct (because they hate America). That's hardly a ringing defense of Trump. I'm pointing out "your side's" hypocrisy, as well as that of the strongly pro-Trump crowd like Hannity. Again, hardly a ringing defense.
I guess a tepid "whatever" (which is what the whole kerfuffle deserves) is pathetic to you. You know what is also pathetic? Your frothing righteous indignation.
I think it's important to make a sharp distinction between saying that illegal immigrants should go back to other countries, and saying members of Congress should. The first, agree with the policy or not, is consistent with the rule of law. Our constitution permits restrictions, even draconian one's, on immigration, Congress, like it or not, has enacted such restrictions. The constitution permits vigorous enforcement. It is no stain on the character of a President to conscientiously enforce a valid, duly enacted law just because one happens to disagree with it.
The second, statement, however, represents a defiance of the rule of law. Members of Congress are entitled to respect by a coordinate branch of government. To ignore cotizen's status as such is to ignore, indeed to defy, the very rule of law a President has sworn to uphold. And that speaks very badly about a President's character.
I would, regarding this incident, limit what I say to speaking in defense of the rule of law, rather than my preferred policy. Attempts, even rhetorical ones, to stigmatize citizens, to undermine their right to be citizens, to deny them the privileges and immunities of citizens, is an attack on the constitution. And it is the constitution that I would focus, in this incident, on defending.
Mr. Trump's shameful remarks about duly elected members of our own government has nothing to do with immigrants, legal or otherwise. I would emphasize the point. I would leave discussions of immigration policy for another day.
"The second, statement, however, represents a defiance of the rule of law."
It would, if he attempted to deport them. If he restricts himself to non-binding advice, not so much. He's as much entitled to freedom of speech as anyone.
"Members of Congress are entitled to respect by a coordinate branch of government."
Members of Congress get too much respect as it is. It swells their heads. Sure, ideally relationships between the branches would be civil. I don't see Trump as having some obligation to remain civil while members of Congress are calling him a monster and would-be dictator.
So, when they go low, I go lower.
Brett, this isn't a question of civility.
This evinces Trump's worldview, and it's not pretty.
I'd like to see ol Donny Trump wriggle his way out of this jam!
It is remarkable how Trump seems to keep confirming the ridiculous picture the left paints of him!
Trump wriggles his way out of the jam easily.
Yes, of course. No point in criticizing or scrutinizing the man for anything but actual impeachment.
Ah! Well. Nevertheless,
Did you ever criticize Obama? Maybe even for being biased?
Wonder why you ever did anything so pointless as that.
IDK either. It was pointless.
I am sad however you don't recognize the greatest tweet ever.
He does with you, and Brett, and some of the other Trump idolators here.
We're watching an astounding spiral of idiocy between Trump and the progressive "resistance". Every time one of them out-stupids the other side, I think that surely we're at the bottom, but then the other side easily manages to show stupendous ignorance that transcends what their opponents did. This shit is breathtaking.
Beginning with recorded history (probably before) diversity has been a consistent source of bitter strife and ruthless slaughter. The written record is one of desperate, deadly, struggles between racial, ethnic, tribal, religious and national groups attempting to manipulate, undermine, dominate, and destroy each other. For evidence of the continuing battle there is no need to look beyond remarks here, and no, it is not different this time merely because Judeo – Christian Western Culture prevails in America at this juncture.
Simply put, from a historical perspective, strife has been shown to be baked into the diversity cake.
Are you arguing we get rid of all nonwhites for a more united America?
Humpty in control today?
Then please lay out the thesis that your above argument about the woes brought on by diversity is in service to.
No. But whites should assert themselves as the majority, and make it clear that the choices are to follow our rules or leave.
And yet…here we are.
The absolute greatest country with everyone else a distant second.
I'd say you're wrong and dead wrong at that.
It allows us to expand, try new things, and also (and maybe most importantly) allows us to swing left and right.
Since The People are in control, and The People change (their priorities, their opinions, their goals, their procedures, their mores, etc.), diverse system allows us to be flexible which in turn prevents us from breaking (as we've seen in other societies).
LOL. How is America more strong now than it was in 1960?
Our bigots no longer wish to be known as bigots, at least not in public.
Our public schools no longer impose state-structured prayer on students, or teach childish nonsense to flatter superstition.
Women are not longer an oddity in graduate schools.
Gays are no longer mocked everywhere, beaten in alleys by police, or jailed for being gay.
America's betters have largely wrung Jim Crow from our southern states.
Our rivers are no longer industrial sewers, our air is cleaner.
Our consumer protections are stronger.
Our liberal-libertarian mainstream has won the culture war against backward and intolerant conservatives.
Did I mention that our bigots are on the defensive?
You're a moron.
My favorite part of these comments are the people defending Trump telling four American citizens — three natural-born, one naturalized — to go back where they come from by explaining how telling illegal immigrants, which was not said, to "go home" makes perfect sense. Second place, of course, are all the typical "whadabout…" bits.
Trump's tweets seem to be nothing more than a different version of "America, love it or leave it" which was popular among some groups in the 60s. His targets can reply that they do love the country and that the criticisms they have made should not be interpreted otherwise, but instead they are taking the tack that such remarks can be called racist if those addressed are people of color. Because charges of racism have become indiscriminate (e.g. Pelosi, Biden) people no longer take them seriously. It's just human nature that falsely crying wolf causes such cries in the future to be discounted and ignored.
If you think the bigotry label isn't hurting Republicans and conservatism, you must be living in a hollowing-out community with dying industries, declining population, substandard education, plenty of elderly voters, and huge problems involving bright flight, street pills, and goofy red hats.
Certainly businesses in particular bend over backward to avoid being labelled as racist. But my point is that when such charges are made indiscriminately it can only result in their losing their force. When Biden and Pelosi are called racist the word has lost its original meaning, and along with that its power to influence public opinion.
Except they don't want to "breathe free." Most non-white immigrants come here to take our goodies while making America LESS free than it was before.
Mad_Kalak, you will never understand the recipe for orderly society until you've watched Rollerball (1975).
Are you the guy that suggested it some months ago on one of these threads. I've not gotten around to yet. The trailer looked fun.
Andrew McCarthy's reaction (https://www.nationalreview.com/2019/07/donald-trump-and-the-racist-tweets/) is closest to my own. Here is a highlight:
Is it "racist" to tell people who have contempt for the country — who abhor the common culture that makes us American — that they ought to go back to where they came from? It has nativist and reactionary overtones, but I don't think it is racist. . . .
It would be racist to tell the progressive "Squad" that they don't belong in our country because of their race or ethnic roots. I don't understand Trump to have done that. He is attacking their radicalism, which they wear like a badge of honor.
I would add two points:
(1) In the early 20th century, there were white people who came from certain parts of Europe that made similarly radical statements about American society, and were met with similar rhetoric. So there is nothing racist about it. If any of the four Congresswomen had said "America is a great country, I am proud to be an America, but I want to work to improve it" then Trump would not have said what he said.
(2) Too many of the commentators here seek to downplay what the Gang of Four (saw that appellation somewhere about these four) said as mere criticism. Wrong. It is radical contempt for America and American institution. If you think that America is, not merely flawed (and what human institution is not flawed), but rotten from its conception, then you should leave. Whether you are an immigrant or your family came over on the Mayflower.
Do the other conspirators have a problem with wrapping pseudo-legal reasoning around DNC talking points?
They don't hate America, Brett. They don't think it's rotten to the core. They don't have contempt for it.
They're struggling within the system to make it better as they define it. You don't do that with something you think is beyond saving.
Riiight — Not all of America. They just hate and have contempt for those who oppose their agenda to fundamentally transform the country and dissolve the borders.
Uh, you and Andy "I prosecuted the blind sheik and I'll never let anyone forget it" McCarthy are not really helping your case. It would perhaps merely be nativist and reactionary if it were directed to immigrants. But it was directed at people who mostly are also natives. Seeing someone as a foreigner because of her race is, you know, what's the word? Oh yeah: racist.
Too many of the commentators here seek to downplay what the Gang of Four (saw that appellation somewhere about these four) said as mere criticism. Wrong. It is radical contempt for America and American institution.
Donald Trump shows more radical contempt for America and American institutions on a daily basis than the four of them combined have done in their lives.
Trump supporters have consistently been the targets of brutal violence by the left since 2016, whenever they dare to engage in street-level political expression within arm's reach of leftist activists.
This massive semi-coordinated campaign of violence and suppression of civil rights started right at the top of the Democrat party, which hired thugs to attend Trump rallies to instigate violence so that a false media narrative could be created smearing Trump supporters.
But that specific story was just one of thousands and thousands in the larger pattern, where the media engages in very transparent efforts to cover up, minimize, deny, shove down the memory hole. The bigger the story, the more brazen the subsequent lies and cover up. Meanwhile, every similar type of event where the roles are reversed receives front page coverage for days or weeks. Or even non-events that are made up, like the Covington boys. On the other hand CNN repeatedly defends violent fascist organization Antifa.
This is just part of what makes it so ironic when the liars claim President Trump is corrupt, suppressing rights, or "attacking" people with supposedly violent words. This current brouhaha is just a continuation of the same campaign of hate and gaslighting against the people of the United States.
massive semi-coordinated campaign of violence and suppression
Mainlining paranoia like this will do nothing good for you.
Americans have all this freedom and socialist systems in place because they've fought and died for it against their own people and they were just as poor and most were very uneducated too. Child labor was once a problem in america but the people put a stop to that and blood was spilled doing it. Women couldn't vote either, but guess what? They fought for it. Blacks are mistreated, but guess what? They fought against it. So go back and fix your own country! You lazy, cowards!
Ghost on the Highway
Ilya's closet no-Trumpism is showing again
Some guy said some things.
vaadu
Rep. Ayanna Pressley said "If you're not prepared to come to that table and represent that voice, don't come, because we don't need any more brown faces that don't want to be a brown voice. We don't need black faces that don't want to be a black voice. We don't need Muslims that don't want to be a Muslim voice. We don't need queers that don't want to be a queer voice." Seriously?
So Trump is a bigot for calling out bigotry, seriously?
Do you understand how efing stupid you sound?
DenverJ
I have a theory, maybe Trump misspelled "counties".
Anywhoose, Trump is Trump. I don't think he's a racist, but I don't really care, either. We've had many, many presidents that were much more racist than Trump. Did you know, being a racist isn't even illegal?!? I also don't see anything about it in the Ten Commandments.
New Symposium Piece About Cross-Country Innovation and IP
We discuss the parallels between the U.S., Japan, and China, and the possible future
Irina Manta | 7.15.2019 1:16 PM
My coauthor, political scientist Mattias Ottervik, and I just published a symposium piece in the Akron Law Review entitled "Blunting the Later-Mover Advantage: Intellectual Property and Knowledge Transfer". Here is the abstract:
The United States followed a path of initially giving little protection to intellectual property (IP) so that the country could benefit from the IP of nations we term earlier-movers on the world stage of economic development. This symposium piece argues that Japan and China have been following a similar trajectory in their intellectual property laws while progressing on their own economic climb. Widespread international outsourcing of manufacturing has made intellectual property a key asset for private companies, which has strengthened the tendencies of earlier-movers to formulate and enforce strict intellectual property laws. This suggests that countries like China respond not only to pressure from earlier-movers like the United States to increase intellectual property protection, but are also driven by concerns against their own later-movers. Perhaps curiously, if the hierarchy of movers shifts and the relative interest in intellectual property enforcement does as well, China will someday seek to protect its goods against infringement by the likes of the United States and Japan.
[Irina Manta] New Symposium Piece About Cross-Country Innovation and IP – Jehtro Lewis – Blog
[…] from Law https://reason.com/2019/07/15/new-symposium-piece-about-cross-country-innovation-and-ip/ […]
Court Refuses to Issue Gag Order and Sealing Order in Sexual Harassment Suit Against YMCA of Pikes Peak
(Disclosure: I had filed an objection, on my own behalf, to the motion to seal.)
Julie Slivka sued her former employer, the YMCA of the Pikes Peak Region, and her former coworker (and fellow manager) Carlos Lozano, claiming that Lozano had forcibly groped her, and the YMCA didn't properly react when she complained. The lawsuit is pending, and I can't speak to whose factual story is correct.
But what interested me is that the YMCA had tried to (1) get a gag order "imposing reasonable restrictions on the release of information to the media and members of the public by any parties or counsel in this litigation," and to (2) get the case sealed, or at least to seal various allegations from Slivka's complaint, including that,
18…. A binge drinking culture is prevalent at the YMCA and Mr. Lozano was perpetuating that by purchasing Ms. Slivka unwanted alcoholic beverages and pressuring her into consuming them.
19. Older men in positions of power sleeping with young women in subordinate positions is also prevalent at the YMCA and, that night, Mr. Lozano was trying to join this club of men who preyed on the women working for them….
64. Upon information and belief, it is common knowledge at the YMCA that female employees who have sex with [a particular top executive at the YMCA of the Pikes Peak Region] are more likely to be promoted within the organization than female employees who do not.
65. This behavior sets the tone for the organization; it lets subordinates know that using their power in the workplace to obtain sex is acceptable….
69. Not only did a colleague that she looked up to sexually assault her that night, but Ms. Slivka would bear the unfortunate reality that the organization that she worked for and admired would be complicit in protecting Mr. Lozano from discipline, create a hostile working environment, retaliate against her, and fail to make reasonable accommodations for the Post-Traumatic Stress Disorder she suffered after the assault.
Again, I can't speak to whether these allegations are correct, but in our legal system, court proceedings are supposed to be open, not sealed. I therefore filed an objection to the motion to seal (as third parties are allowed to do, because sealing implicates the public's right of access); and I'm pleased to say that on Friday Chief Judge Philip A. Brimmer (D. Colo.) denied the motions.
First, the court rejected the proposed gag order, concluding that there was no "'reasonable likelihood' that media attention or extrajudicial commentary will prejudice a fair trial," given the modest media coverage that the case had gotten, and given the availability of "other, less-restrictive measures [that] may be taken to mitigate any potential prejudice caused by press coverage of the case" (such as questioning prospective jurors about whether they had heard about the case).
Then, the court rejected the motion to seal:
The Supreme Court has acknowledged a common law right of the public to access judicial records. Nixon v. Warner Communications, Inc., 435 U.S. 589, 597 (1978). This right is premised upon the recognition that public monitoring of the courts fosters important values such as respect for the legal system. There is a presumption that documents essential to the judicial process are to be available to the public, but they may be restricted when the public's right of access is outweighed by interests which favor non-disclosure….
"[A] movant [must] articulate a real and substantial interest that justifies depriving the public of access to documents that inform[] the court's decision-making process." … The fact that the parties agree on restriction is insufficient to overcome the presumption that court proceedings and documents must be available to the public….
YMCA has set forth no law suggesting that closing the entirety of these civil proceedings to the public is warranted in this case….
In the alternative, YMCA argues that the Court should [in effect seal] plaintiff's complaint, its motion for a gag order, and its "motion to strike" [which appears to have been an incorrectly filed document, not containing a motion to strike -EV]. The Court finds that YMCA has failed to meet its pleading burden under D.C.COLO.LCivR 7.2 [the local sealing rule].
First, it has failed to "identify a clearly defined and serious injury that would result if access is not restricted." YMCA states that "[t]he threatened harm to Defendant YMCA is profound," but does not specify what it believes the purportedly profound harm to be. To the extent that YMCA implies that its reputation will be damaged absent restriction, see id. at 3-4 (describing plaintiff's complaint as containing "baseless, per se defamatory, tangential, and extremely prejudicial accusations" and "ad hominem attacks … which are prejudicial or, in part, defamatory in nature"), YMCA does not identify a "clearly defined and serious injury" that would result if access is not restricted. Thus, it has failed to meet its burden under the Local Rules.
YMCA has also failed to explain why no alternative to restriction is practicable or why restriction is the only remedy that will adequately protect its interests…. The Court finds that there are less restrictive means through which YMCA could obtain the relief sought. For example, with regard to plaintiff's complaint, YMCA could file a motion under Rule 12 to strike the paragraphs in the complaint that it contends contain inappropriate allegations.[Shortly after the order was issued, the YMCA did file a motion to strike; but even if that is granted, the grant would not have the effect of sealing the original complaint. -EV] Or it could file a motion for sanctions under Rule 11 based on its argument that plaintiff's allegations were "brought in bad[] faith" or were intended to "taint the prospective jury pool."
As to the other documents it seeks to restrict, YMCA could have filed them as restricted documents along with a motion to restrict. See D.C.Colo.LCivR. 7.2(e) ("A document subject to a motion to restrict shall be filed as a restricted document and shall be subject to restriction until the motion is determined by the court."). Because YMCA "failed to avail [itself] of the protections provided by the District's local rules …, any claim to confidentiality has been waived." …
Here, by the way, are excerpts of my objection, which Colorado Public Radio and the Colorado Freedom of Information Coalition joined:
Free Speech Right of Access
Longtobefree
So the feminists have achieved sexual equality at the YMCA, in that young women as well as young men are preyed upon, and that is a bad thing?
I get so confused at times.
CharlesHewitt
man, i think u right about that
Long,
Which part is confusing to you? It seems pretty accepted that being preyed upon is a bad thing and ought to be discouraged, yes? I gather that your real point was, 'Hey, it used to be young boys who were molested at the YMCA. And now the Y has "evolved" enough so that both sexes are now molested and/or harassed. What a pathetic display of "equality." '
What confuses me is the part where you say that you yourself are confused. (And, based on his comment, Charles Hewitt shares your confusion.)
They should have denied simply because they spelled "Gag" wrong.
"Defendant, The Young Men's Christian Association of the Pikes Peak Region ("Defendant YMCA"), by and through their undersigned counsel, Tyson & Mendes LLP, hereby moves for a Gage Order."
"Mr. Lozano was … purchasing Ms. Slivka unwanted alcoholic beverages and pressuring her into consuming them."
Terrible. A man buying a woman drinks is no more defensible than a woman who arouses a man while denying him sex, thereby causing an assault.
I think they were trying to establish that the YMCA knew about and implicitly condoned that exact behavior, so they should be liable.
However, the complaint is written badly and in questionable English. It's not written in a professional tone. It mixes tenses repeatedly. Frequent typos. I was surprised to see that this was submitted by a lawyer and not by herself.
Michael Ejercito
Would not respondeat superior be sufficient to establish liability if the allegations against Lozano are proven?
It sounds like the purchasing of the drinks and the pressuring were happening after hours, and I'm assuming they are outside on the manager's job duties, so the YMCA typically wouldn't be liable under respondeat superior.
She went with him as a concerned friend, not as a subordinate.
It must really irk you guys that we're living in the 21st century and not earlier (e.g. 16th century).
Then you could have bought all the unwanted drinks and pressured women as much as you needed to.
16th Century? The antiquated notion that women have the ability to control how much they drink was en vogue as recently as the 20th century. We've only become enlightened very recently.
Sometimes we forget that within our lifetimes, the only thing preventing a man from lowering a woman's inhibitions was her ability to decline the drinks he offered her.
You mean in the days when women were considered fragile, irrational creatures who couldn't be trusted to make their own decisions and had to be protected from everything, including themselves? You're right, I'd love to advance past those days.
Nobody should be buying alcohol for an opposite sex subordinate in a workplace with the intention of trying to bed her.
This isn't some sort of misplaced political correctness. If a guy wants to have sex with someone, he can try hitting up women who don't work for him.

redpajama_set_name: RedPajamaCommonCrawl