Sic Semper Tyrannis?

Sully, InstaPundit, and the rest of the Bush propaganda machine (no, I'm not asserting they're in the administration's employ) have been busy, ever since it became obvious that there were no weapons of mass destruction in Iraq, trying to spin the war in a way that shows it was justified after all. The tactic that seems to have had the most traction for them is "thus always to tyrants": Hussein was a horrible tyrant guilty of horrendous crimes on a massive scale against his own people. It is right to topple tyrants. Therefore it was right to go to war against Saddam. It's a neat little syllogism. (The first premise -- Saddam was evil -- is irrefutable, and many on the left have committed egregious political error (and even sin) in attempting to down play the horror that was Saddam). And it plays in Peoria. We Americans like to see ourselves as defenders of human rights around the world, and we can lay claim to a strong, albeit not unblemished, record of being just that.

But the syllogism has its problems. The most obvious one (not the real subject of this post) is that toppling a tyrant does not necessarily imply war as a strategy. The real problem with the syllogism is the second premise -- it is right to topple tyrants. First, there is no logical stopping point to it. Here's a partial list of tyrants guilty of sins at least as egregious as those of Saddam: The murderous monarchs of Saudi Arabia; The Mad Mullahs of Iran; Bashar Assad of Syria; Deng Xiaoping, Li Peng, and the rest of Mao's filthy heirs in China; Robert Mugabe of Zimbabwe; Kim Jong Il of North Korea. For a more complete list, just read State Department country reports here. That's proof enough that sic semper tyrannis, while stirring rhetoric, and lofty aspiration, is at best an incomplete rationale for policy. The current crowd of pro-war cheerleaders have admitted as much. See, for instance, if you can find among today's pro-war crowd any record of opposition to the Nixon and ReaganBush policies of the 70s, 80's and early 90's supporting murderous tyrants in Central and South America. I'll gladly print a correction to my thesis if someone can show me that Sully, Reynolds and the rest have been consistent in their anti-tyrannical ardor.

No, in order to prevent the anti-tyranny argument from leading to perpetual war, there must be some constraints. No war should be fought against a tyrant unless there is something more than tyranny alone to justify it. Alternatively, tyranny can be excused, or condoned, if there is some greater policy goal served by excusing or condoning it. Thus, Sully et al. would surely argue that condoning (or even supporting) the awful tyrants of South and Central America was necessary in the 70s, 80s and early 90s because those tyrants were bulwarks against Communism, which represented even a greater evil. For the sake of this argument, I'll accept that explanation at face value (although strong arguments can be made, and probably carry the day, that, for example, Pinochet was not necessary to stop Chile, which had a long history of stable democracy, from going Communist under Allende.)

But is not Islamofascism today's Communism? Sully consistently, and rightly, makes exactly that argument. So if Saddam's tyrannical regime were one that was a key support for Islamofascism, then the war was surely right -- the combination of Saddam's tyranny and his support for Islamofascist movements outside Iraq would make this war a slam dunk. But the supposed link between Saddam and al Qaeda or any other terrorist movement remains as ethereal as his WMD program. His famous payments of blood money to the families of Palestinian suicide bombers don't cut it. That was great propaganda for Saddam in the Arab world, and cost him next to nothing. Compared to the overall cost of the Islamofascist assault on the West, those payments were but a raindrop on the ocean. They hardly justify a war. The pro-Bush forces have yet, in my view, to establish a solid case for the "something else" that turns tyranny simpliciter into a cause for war.

The three or four of you who read this blog will no doubt notice that this post is a sea change in my views compared to what I was writing before the war. What can I say? I believed the WMD claims. Had they been true, I still think this war would have been justified (I'm still a BIG fan of Israel's bombing of the Osirak reactor twenty years ago). They weren't true. I was lied to -- regardless of the spin Sully and the rest are trying to put on it now -- and I fell for it. "Speak what you think now in hard words, and tomorrow speak what tomorrow thinks
in hard words again, though it contradict every thing you said today." -- Ralph Waldo Emerson.

Arafat's Demise

Yesterday, Meryl Yourish channeled Janis Joplin on the subject of Arafat's death:

Oh Lord, won't you give us an Arafat death?

We've waited for decades, so please stop his breath

Prayed hard for this deed, and fasted, no less

So Lord, won't you kill him, and settle this mess?

I have two problems with the ditty. I raised one of them directly with Meryl, and she published my view and a thoughtful response of her own here. There's some daylight between Meryl's view on the matter and my own, but not a lot. So I'll leave that one where it stands.

Here's my second problem: I don't think Arafat's death settles a whole lot. His policies are wildly popular, and the cult of death he has created will outlive him in Palestinian society. Indeed, I think it not unlikely that those hungry to claim Arafat's mantle might seek to outdo one another in Jew killing as a way of proving themselves "worthy" successors in the eyes of their death-crazed people. Settle this mess? I don't think so. (I realize that in song parody, one must sometimes sacrifice accuracy and nuance for the sake of meter, and I actually found Meryl's version quite clever; heaven knows my own meager writing ability is confined to prose. But since the parody came without a disclaimer, I thought it worth raising these issues).

Limited Imagination

Susan Ager, a columnist for the Detroit Free Press, "can't imagine who would disagree" with her assertion that Jack Kevorkian should be released from prison.

Well, I do, for one. And I doubt I'm alone. Ager submits that incarcerating Kevorkian any longer serves no purpose because (1) he's been punished enough and (2) he poses no danger to anyone. Wrong on both counts. Kevorkian was sentenced to 10 to 25 years imprisonment for second degree murder. I'm not sure whether the Michigan Truth-in-Sentencing provision was in force at the time of Kevorkian's crime, although it was at the time of his sentencing. That provision would require that Kevorkian serve at least the 10 year minimum sentence that Judge Cooper courageously imposed on him. Since he's only served 4 1/2 years, he's not even close.

That Kevorkian's lawyer, the self aggrandizing publicity fetishist Geoffrey Feiger, is asking a judge to resentence the Terminator to time served implies that truth-in-sentencing does apply to him: only by vacating the old sentence and imposing a lighter one could truth-in-sentencing be avoided. I'm quite certain that it's bad public policy to set a precedent of avoiding the truth-in-sentencing law by vacating and reimposing sentences. If Kevorkian's medical condition is such that he should for reasons of compassion receive special dispensation, then the common law has long provided an avenue for such relief -- executive clemency. Jennifer Granholm (who by the way would be a smashing candidate for the Democratic presidential nomination in 2008, should the Arnold Amendment be passed) is a fair minded woman, and I think the people of Michigan would respect her judgment in the matter. Frankly, I think the relief that Feiger seeks via resentencing might well violate the Michigan constitution by usurping the Governor's exclusive right under the Constitution to grant clemency.

So keeping the felon Kevorkian exactly where he is serves at least this purpose: it reassures the people that the law means what it says.

There's another reason to continue punishing Kevorkian: he has yet to accept, much less admit, that he did anything wrong. He is a zealot. Kevorkian's fanaticism is well documented, and his "pledge" not to assist in any more suicides is hard to take at face value. Judge Cooper said as much on the record at Kevorkian's sentencing. And while Youk, the victim of whose murder Kevorkian was convicted, might well have been of sound mind and desired his own death and freely consented to Kevorkian's acts, the same cannot be said for many of his other victims.That conduct, while not charged in Kevorkian's indictment, is certainly relevant conduct that Judge Cooper was entitled to consider in sentencing the bastard. Let him rot.

Hey, Teleparasites: Don’t Call Me

When the Oklahoma judge struck down the national Do Not Call List on Tuesday, I didn’t much care. He ruled on narrow grounds of statutory construction, and whether he was right or wrong, the remedies were quick and relatively painless as Congress showed today.

Today’s decision from Denver, however, is another matter entirely. The Denver judge bought the teleparasites’ First Amendment argument – that the Do Not Call List infringes their right to free speech. I disagree. True, the FTC is a government agency, and its regulations therefore constitute “state action.” Thus, if FTC regulations suppress speech in violation of the First Amendment, then they must be struck down. The Do Not Call regulations, however, suppress no speech at all. Not one word. Any speech that is “suppressed” by the Do Not Call List is suppressed because of the private choices of over 50 million (and counting) Americans. It seems to me that Zelman v. Simmons-Harris, decided just two terms ago, teaches that when a putatively objectionable outcome results from private choices, and the government acts merely as facilitator of those choices, there is no First Amendment violation.

There are two distinctions between this case and Zelman . First, Zelman was an Establishment Clause case, and not a free speech case. Though the two clauses exist in the same amendment, they have spawned two different bodies of law. Second, the government here is more than a neutral facilitator. It threatens to fine the teleparasites should they violate the rules (as they are sure to do). I am not troubled by the first distinction. Without state action, no clause of the Amendment – indeed, no provision of the Bill of Rights – can be violated. As I read Zelman (and I may be out on a limb here, but what the heck, it’s a blog), and the cases on which the Court there relies, it holds that not only must there be state action, but also a causal link between the state action and the putative Constitutional violation, in order to find that there be a Constitutional violation. Stated thusly, Zelman’s holding has “crossover” appeal to the teleparasites’ free speech case.

The second distinction is more troubling, because by threatening to fine the teleparasites, the government really does become more than a neutral facilitator. It can be argued, rather convincingly in view of the potentially enormous fines, that it is the government’s fines, and not the people’s choices, that is suppressing the teleparasites’ speech. Here’s an easy fix: delete the fines, and have Congress create a private right of action to sue violators. A few privately filed class actions ought to do the trick of putting teeth in the list without any Constitutional violation.

Mooses on Beaches & Tuesday Morning Twist

Lord knows, the ease of blogging, lack of editors, and press of time can lead to errors in posts. Lord knows I've made a few. But Gregg Easterbrook, over at Yet-to-Be-Named has a couple of glaring ones this week. First, his assault on Chief Moose, late of the Montgomery County Sheriff's Department. Apparently, Moose settled with Marriott on a claim that he was racially harassed at a Marriott resort on Oahu, when a hotel security guard asked him for his room key as proof that he had a right to be there, solely on account of his race. Easterbrook thinks that this was "blackmail," noting that the resort's claim to fame is its "spectacular private beach," and that the hotel routinely checks ID to make sure that the uninvited aren't hanging out there.

Plausible explanation, no? Here's the problem, though -- all beaches in Hawai'i are public, from the high water mark on out, and developers purchasing or leasing state land above the high water mark have to provide public access. (see Haw. Rev. St. sec. 171-42.) Of course, that's only half the problem with Easterbrook's analysis. Here's the other half. Assume, for the sake of argument, that Moose was on a part of the resort (a stretch of beach above the high water mark, with cabanas, for example) that is private, and where Marriott would be within its rights to exclude the non-paying. There's still a legitimate question of whether the hotel checks all people's id's, or just the black folk. If the latter, than Moose's claim isn't blackmail at all. Since Easterbrook isn't privy to the facts, he's jumping a little to quickly to the accusation. And as anyone who's ever known an actual black person knows, such racially discriminatory enforcement practices are not altogether uncommon. Was Moose out to make a quick a buck, or is Marriott trying to keep its beach rassenrein? Who knows? I don't. Neither does Easterbrook. So maybe he should be a little slower pulling the trigger on blackmail accusations.

Now let's talk ice cream. Seems that the Tuesday Morning Quarterback (and that's really a misnomer, since ESPN rarely has the column published in the morning EST, which is, as we know, God's time zone) doesn't understand the difference between a flavor of ice cream and a sundae. Apparently, up in Vermont, for a single day, in celebration of Governor Dean's announcement of his candidacy, Ben & Jerry's headquarters outside Burlington offered a sundae called "Maple Powered Howard." If Easterbrook had read the very story he linked to he'd have discovered that the MPH, like all sundaes, was a dish comprised of ice cream and one or more toppings -- in this case, vanilla ice cream topped with maple syrup, maple-flavored whipped cream, and walnuts. MMM, mmmm, good (except for the nuts. Love nuts, love sweets, hate nuts in sweets. But I digress). Cute story, right? Not for TMQ (and, for the record, TMQ is the best sports column written today, in any medium, on any sport. Read it.) He uses the story as a jumping off point to knock Dean and Unilever. He notes that you won't find Maple Powered Howard in B & J's on-line flavor inventory. But that's because it's not an ice cream flavor. It's a sundae. The only ice cream in the sundae is vanilla. Now to be fair to TMQ, many common B & J flavors have sundae-like elements (nuts, heath bars, caramel swirls and the like), but without a hot, gooey topping and whipped cream, they're not sundaes -- they're just really complex ice cream flavors. So Easterbrook's conclusion that the limited availability of MPH equals limited appeal for Governor Dean isn't really very sound. Indeed, it's absurd. He does get in a fair dig at B & J itself however. The stoners who founded it sold their eponymous brand to one of the world's largest conglomerates, so its vaunted social responsibility is now just an advertising slogan for one of the world's largest conglomerates. Then he offers an uninspired list of B & J flavors for the rest of the field (although I do like Hilary's Endless Fudge). All in all, not an auspicious bloggining.

If Rupert Murdoch Owned Mastercard

then Josh Marshall might be defending a law suit today. Hilarious. Trenchant. Tragic.

Silvio, Arnold. Arnold, Silvio

Already met? Great, then you'll have lots to talk about . . .Seems that Berlusconi, like Schwarzenegger, has something of a fetish for fascists. Now to be fair to Berlusconi (and Mussolini) Il Duce, as early 20th century fascist dictators go, wasn't the worst of the lot. (Indeed, Italy's Jewish community suffered the third-lowest percentage of murders in all of occupied Europe. Only Denmark, famously, and Bulgaria, somewhat paradoxically, saved a higher percentage of their Jews.) But still, Berlusconi's assertion -- that Mussolini didn't kill anyone -- is absurd. Unlike Schwarzenegger, who still supports Waldheim, Berlusconi at least had the manners to backpedal. (and for what it's worth, I don't think Arnold should bother renouncing Waldheim now. It would be such an obvious cave-in to pressure, with so obvious an ulterior motive, as to be meaningless).

Harvard Made Him Do It

How else to explain Al Franken's apology to John Ashcroft?. In his fabulous new book, Lies and the Lying Liars Who Tell Them: A Fair and Balanced Look at the Right, Franken lampoons the hypocrisy of the right's "just say no" approach to teen sex. In writing the book, Franken sent a letter to Ashcroft (on Harvard stationery, as Franken was then a Harvard fellow), claiming that he was writing a book called Savin' It!, on the administration's abstinence education program. He solicited the famously mammophobic AG's contribution to a a chapter in this work called "Role Modelin' It", in which prominent Americans recounted their "abstinence stories." Of course, Franken wasn't penning a book called "Savin' It." He was writing the hilarious and trenchant Number One Bestseller, Lies and the Lying Liars Who Tell Them: A Fair and Balanced Look at the Right. (I have a number of issues with the book, but that's another post).

Volokh thinks Franken actually owed Ashcroft the apology that The Smoking Gun posted. I think Franken's apology is a sign of just how sinister Ashcroft's Justice Department has become. The key passage in Franken's apology is this:

My biggest regret is sending the letter on Shorenstein Center stationery. I can assure you that no one at the Shorenstein Center had knowledge of the letter before I sent it. I am very embarrassed to have put them in this awkward and difficult position, and I ask you not to hold this against the Center, the Kennedy School, or Harvard in general.

The entire reason for the letter is right there in that paragraph. Harvard feared it would suffer Ashcroft's wrath, and forced Franken to issue the mea culpa. What exactly was the harm to the AG from the "Savin It" letter? He was satirized? So what? That comes with the teritory when you're a public figure. Volokh thinks this satire crossed the line because it touched on Ashcroft's sex life. Hello? President Clinton had his sex life minutely examined, not by one satirist, but by the whole comedy community, and by a High Inquisitor (does anyone else picture Ken Starr in drag when reading of Dolores Umbridge in Harry Potter V?) who cost the fisc some half a billion dollars. And Clinton wasn't pushing abstinence as public policy. Ashcroft is. So his hypocrisy vel non on matters sexual is absolutely fair game. I think it deeply disturbing that Harvard -- an institution with no small amount of power -- felt compelled to kiss derriere on this one.

Franken did owe the Shorenstein Center an apology, though. Just because he was a fellow at the time, did not give him the right, in my view, to use the Center's name and imply its imprimatur on the ploy. And Franken didin't need to have it either. He knew that no member of the administration would respond to his request for an abstinence story. None of them could. That's the whole point. Didn't matter whether the letterhead said Harvard or Franken or Hogwarts.

Methods of Madness

Eugene Volokh points to this article about the Utah Sentencing Commission's solicitation of the Mormon Church’s view on proposed legislation that would eliminate the firing squad as a permitted method of execution in that state. Somewhat fuller discussions can be found in Utah’s Deseret Morning News and Salt Lake Tribune.

Volokh’s view, which I think is correct, is that the solicitation of the Church’s opinion does not violate the Establishment Clause. I’d be more concerned if the Church had commented negatively on the legislation, and the Commission thereafter withdrew it. That course of events would raise the specter of the Church being given veto power over, rather than merely input on public policy initiatives. I think Volokh’s post draws this same input/veto line. Utah presents unique problems in drawing the line, however, given the religious homogeneity of the state’s population (some 70% of the state’s population are Latter Day Saints) and the stress the religion itself places on obedience. Hardly the type of problem, alas, that is easily explored in a blog . . .

Another interesting aspect of the Commission’s soliciting the Church’s view is the complete absence from the Sentencing Commission’s minutes on the subject (discussed in the April, August, and September meetings). Utah’s open meetings act, like that of most states, provides that minutes must be kept of open meetings, and must include inter alia “the substance of all matters proposed, discussed, or decided.” (Utah Code § 52-4-7(1)(c)) Seems to me, vague as that provision is, the discussion of the LDS Church’s view on the proposed legislation ought to have been included. At least the press was on top of it

A Little Knowledge

Eugene Volokh has a pet peeve . . . Jews who claim that "Jews for Jesus" is an oxymoron. Eugene brings the precept that birth to a Jewish mother confers on one the status of a Jew, and even grave sin does not remove that status. And Eugene is accurate, as far as he goes. A Jew for Jesus remains a Jew, but at best only in the same sense that Karen Anne Quinlan, while connected to life support, remained a life in being. The question of the "Jew for Jesus's" jewishness can be approached from several perspectives, none of them offering much support to Eugene's view. Let us start, though, with the standpoint of halakhah, Jewish religious law (for the precept on which Eugene relies is an halakhic one). While the apostate remains Jewish even after his renunciation of the faith, that is not to say that he retains the same status under halakhah as other Jews. He is indeed, singularly disfavored; even a Jew who professes atheism has greater status under the law. For example, the child of a female "J-for-J" is not to be given brit milah; he may not be brough into the coventant, even though Jewish at birth. Thus, the jewishness of the Jew for Jesus is rather short-lived. Because an apostate is not considered competent to testify in a bet din, a Jew for Jesus may not do so. A family is not sit shiva for a Jew for Jesus when he dies, and a he is to be buried only at the outer edges of the Jewish cemetery. He may not be called to the Torah in a synagogue, may not even touch a sefer torah. Jews may not eat in the home of a J-for-J". . .

But it is not just observant Jews who consider Jews for Jesus tobe an oxymoron. That view is widely held even among Jews who haven't been to synagogue in years, and who would no sooner give up bacon than they would sex or water. What then is the source of their view of Jews for Jesus? It is this: we Jews are a community, one that transcends -- when we are our better selves -- differences of observance, of nationality, of language. Whether yankees fans or red sox fans (or, non-baseball fans pu pu pu), we are all one people. Becoming a Jew for Jesus is not just a bothersome difference of opinion over a matter of observance; it is a very public renunciation of membership in the community. Indeed, Jews for Jesus are without exception people who feel no connection to the Jewish people, and don't want one. That they claim one in their name (devised by evangelical chrisitians, who founded the movement and fund it) only rubs salt in the wound.

Volokh is a bright man, and I'm surprised he can't understand this, or that it should bother him. Perhaps he is just being lawyerly, and his pet peeve is a symptpom of a lawyer's fetish for precision in language. But Jew is a term without "plain meaning," and the oxymoron claim is well justified if one understands the word "Jew" in all its complexity.

Sweet Reason!

McDonald's has prevailed in the latest round of the absurd and repulsive law suits blaming it for America's obesity. 3 cheers for U.S. district Judge Robert Sweet.

Don't Let the Door Hit Your Ass

Dr. Laura's now an ex-Jew. Delightful news, on so many levels. Of course, having validly converted to the faith, she remains a Jew, from the point of view of halakha. That though, is a subtlety that will be lost on most of her admirers. (Hat tip to David Bernstein over at the Volokh Conspiracy). Bernstein thinks that Schlesinger's reputation for gay-bashing is undeserved. He says:

"[Schlesinger's] purported anti-gay bias is overblown to say the least. Before that controversy erupted, I heard her berate a caller for acting unkindly toward a homosexual relative. Dr. Laura said something along that lines of although homosexual acts are a sin, homosexuals as individuals must be treated with respect, just as we treat with respect people who violate the Sabbath, don't honor their parents, and engage in other sins. This certainly didn't sound to me like the attitude of a gay-basher.

If that were a true representation of Schlesiner's views, Bernstein might have a point. But this is what she really thinks. So Bernstein is all wet on this aspect of Dr. Laura's character. He does, however, quite rightly peg the hypocrisy of her de-conversion.

LGF Goes Too Far

The weblog Little Green Footballs performs an invaluable service by tracking the hypocrisy of Arab/Islamic terrorists and their western apologists. But at times, I sense in Charles' tone that he has become so overcome with anger and frustration (and I empathize, believe me) that his commentary slides over into a knee-jerk bashing of anything connected to Islam. Today's post on Islamic banking practices is an example. Islam forbids the lending of money at interest, but modern commerce cannot exist without it. Islam has come up with devices to keep within the letter of the law, while managing to do, in substance, what the law appears to forbid. Charles' post describes the techniques, and I won't repeat that description here. LGF calls these techniques "a hypocritical mind game."

But anyone who's schooled in even basic talmud (and it would be generous to describe my knowledge of talmud as basic) will recognize in this "hypocritical mind game" the reasoning of the Talmud. Over and over again, the Talmud's binding law -- binding to this day -- contradicts what the Torah appears to demand explicitly. One example (and there are dozens) is the Talmud's softening of what appear to be unambiguous demands for capital punishment (Justice Scalia would make a miserable orthodox Jew). Under Jewish law as it has been interpreted by the sages since Sinai, most of the Torah's capital punishment edicts were never carried out. Another example, perhaps closer to the point. Physicians, like others, are not permitted to ply their trade on the Sababth (search the Torah for an exception; you'll search in vain). Yet simple human decency says otherwise -- surely the physician must be allowed to perform his duties on the Sabbath, or people will die needlessly. After all, death doesn't often take a holiday. And as you might expect, the Talmud carves just such an exception, pikuach nefesh. If it means saving someone's life, the physician (or anyone in a position to save the life) may, indeed, must, violate the sabbath. This is not hypocrisy, it is the law in action. People in glass houses . . .

p.s. I don't know Charles, and it's possible that he's a secular Jew who holds the Talmud in the same contempt as he holds Islamic banking. If so, then his criticism at least has some consistency to it. Yet strangely, he deicided only to ding the Islamists, and not the Talmudists. To me, that raises the inference that charles is simply looking -- out of a frustration and anger that I share and understand -- to ding Islam in any way he can. He only harms his own credibility when he does so.

First they came for sadists . . .

If a statue showing a naked breast is too much for Ashcroft, then it stands to reason that films depicting actual breasts are are an outrage worthy of jail time. He's actually instructed the 94 US Attorneys to make the anti-porn crusade a priority.To be fair, it seems from the reports that little Johnny has gone out of his way to find films that are difficult to defend, the self-proclaimed "hardest of the hardcore." But he's chosen those films not because they're the only ones he's interested in, but because he wants a victory -- indeed a string of them -- to chill the entire pornography industry. And let's face it, not all porn is bad. Even if, for the sake of argument, we assume that Ashcroft's anti-porn jihad (of which, it is worth noting, the Taliban, Catherine MacKinnon, and the mullahs of Iran would heartily approve) is a legitimate public policy, ought it to be a priority in the post 9/11 world?! Ashcroft is a worthless hemorrhoid of a man, easily the worst thing about the Bush administration, despite some stiff competition.

Coming Attractions

I've just finished reading Jon Krakauer's new book, Under the Banner of Heaven. Krakauer's a great story teller (his Everest account, Into Thin Air and his earlier book, Into the Wild are both must reads), but this latest work is problematic. Because he raises a number of questions in the book that I've always found intriguing (faith vs. reason, church vs. state, and the like), I'm going to try to get a fairly extensive essay worked up. For now, I'll just say Krakauer's undisguised skepticism of religious faith generally causes him to link a pair of brutal murders to the very nature of Mormonism. If the link is indeed there, Krakauer's analysis is far too glib to establish it.

Lies, and the Lying Lawyers Who Tell Them

In denying Fox's request for a preliminary injunction against Al Franken's book, Lies and the Lying Liars Who Tell Them: A Fair and Balanced Look at the Right, US District Judge Denny Chin stated: "There are hard cases and there are easy cases. This is an easy case. This case is wholly without merit, both factually and legally."

Rule 11 of the Federal Rules of Civil Procedure provides that by presenting a signed pleading to the court, an attorney is making four separate representations, and the violation of any of them opens the attorney to sanctions. Two of the four representations are that to the best of the attorney's knowledge information and belief (after reasonable investigation, so that wilfull ignorance is no defense):

(1) the pleading is not being presented for any improper purpose, such as to harass . . .;

(2) the claims and other legal contentions are warranted by existing law or a non-frivolous argument for the extension, modification or reversal of existing law or the establisment of new law.

Fox's complaint, clearly a pleading that comes within the rule, arguably violates both of these representations. But the first one, improper purpose, would be hard to prove. It requires the judge to find a bad intent, and because protecting one's trademark (however invalid the registration might be) is a proper purpose, it is unlikely, absent a "smoking gun" memo ("fuck Franken, sue his ass just to bug him"), no judge will dig deeper than that in evaluating the suit's purpose. But the second representation, that's a bit easier in this case. Judge Chin himself said the case was "wholly without merit, factually and legally." How far a step is it from there to "not warranted by existing law, nor supported by a non-frivolous argument for the extension, modification, reversal of existing law?" If I were Franken's lawyer, I'd be inclined (after a reasonable investigation) to file a motion under Rule 11(c)(1) and ask for a hefty fine.
UPDATE: Sadly, Fox has seen reason and dropped the suit.That dooms the idea of monetary sanctions against Fox's lawyers, as such a motion must allow the lawyer agsinst whom sanctions are sought to withdraw the offending pleading. The dismissal also deprives the court of authority to act on its own to sanction Fox's attorneys. Too bad. L'Affaire Franken was fun while it lasted.

Fucking Moron

Dubya, that is. After last week's blackout, he stopped spreading his legs for the wealthy republicans of Orange County long enough to go on the air and reassure us all. Trouble is, he's so fucking stupid that no one with half a brain winds up reassured. On Thursday, in his first comments, he repeatedly referred to the blackout as a "rolling blackout." Then he did it again the next day suggesting either that the people who prep him aren't very smart themselves (not true, sadly), or that he's simply unteachable. Unlike last week's blackout, George, rolling blackouts are planned. They're a method, albeit a shitty one, to deal with demand for electricity that exceeds supply. You could have asked any of the Californians you met last week about this. They're very familiar with them.

And what galls me about this more than Bush's stupidity itself (he delegates most important functions to people smarter, if no less evil than he, anyway) is the fact that he gets a free pass from the media. If you've seen a reference to this glaring error in a newspaper or mainstream media outlet (or even in a blog more widely read than this one) let me know.

11. Thou shalt not force thy religion

down the throats of thy fellow citizens. And yet, in the proud tradition of Missibamiana government officials, Chief Justice Roy Moore has announced his intention to defy a federal court order, and force his religion down the throats of his fellow Missibamianans. To be fair, Moore has announced only that he will take his case to the Supreme Court, after losing in the District Court and the Court of Appeals. Of course, unless Moore applies for and receives a stay of the district court's order pending the Supreme Court's ruling -- or decision not to take the case, he's courting a contempt citation. And there can be little doubt that he'd disobey the Supreme Court as well. Federal marshals forcibly restraining Moore while they remove his theses from the wall for him? I hope it doesn't come to that.

UPDATE 8/19: The trial court denied Moore's request for a stay. Moore's applied to the Eleventh Circuit for a stay, but I think they'll deny it too, having already upheld the trial court on the merits. And unfortunately, there won't be any showdown with federal marshals. Moore will simply be fined for contempt, and the taxpayers of Missibamiana will be poorer by $5,000 a day than they already are -- unless, as is apparently the case, other state officials simply remove the monument in compliance with the order, Moore be damned. Thanks to appellateblog for the links.

Everybody's doing it . . .

Fair and Balanced . . . It's the new black. Not only are Lord Voldemort's minions smug and nasty, they're also humorless.

Passion Fruit

I haven’t seen the film. But I’ve read enough of the frothing criticism to know that the Anti-Defamation League has gone seriously, seriously wrong by calling for Gibson to modify his film before releasing it.

To demonstrate, let’s assume that every factual allegation Abe Foxman has made is true. That is, let’s assume for the sake of argument that Gibson’s film:

(1) ”portrays Jewish authorities and the Jewish "mob" as forcing the decision to torture and execute Jesus, thus assuming responsibility for the crucifixion.”

(2) “relies on sinister medieval stereotypes, portraying Jews as blood-thirsty, sadistic and money-hungry enemies of God who lack compassion and humanity.”

(3) “relies on historical errors, chief among them its depiction of the Jewish high priest controlling Pontius Pilate.”

(4) “uses an anti-Jewish account of a 19th century mystical anti-Semitic nun, distorts New Testament interpretation by selectively citing passages to weave a narrative that oversimplifies history, and is hostile to Jews and Judaism.” and

(5) “portrays Jews who adhere to their Jewish faith as enemies of God and the locus of evil.”

Let’s also assume that each of the above flaws is compounded by the fact that they contradict the Magisterium of the Roman Catholic Church, as Paula Fredriksen argued at length last month in the New Republic. Let’s assume that these contradictions of the Church’s teaching were deliberate: that Gibson believes, and wishes to propagate, these anti-Semitic canards. Let’s even go a step further, and suppose for the sake of argument that Gibson shares the loony, well documented, white supremacist and holocaust-denying beliefs of his evil father.

So what? To whom would this message appeal? Is the film so powerful that it would win converts to anti-Semitism who are not already inclined to hate? Or does the ADL believe people so weak-minded that despite the best intentions they would be manipulated by the film into becoming anti-Semites? I think not. Indeed, by producing the film in Aramaic and Latin (the latter, Fredriksen argues, being historically inaccurate, despite Mel’s claim to historical accuracy), Mel has already weeded out most of the weak-minded: Americans, effete intellectuals aside, are notoriously hostile to films with subtitles. Of the people in this country fluent in Aramaic, and thus able to understand the film without subtitles, 98% (or more) are observant Jews (who must know Aramaic because it is the principal language of the Talmud), and they are unlikely to join the ranks of the right-wing fringe.

Like would-be speech suppressers the world over, Foxman only does his cause harm with his jeremiad, giving Gibson publicity and prompting people to see the flick out of curiosity.

Foxman doesn’t see this. Today, the ADL put out a new press release, disclosing some of the – wait for it – anti-Semitic hate mail that was generated by its first press release. I’m not sure what Foxman’s purpose is in releasing the hate mail. It certainly proves nothing about any harm the film would do. All it does is drag some of the audience into the light of day. That’s good information to have. But at any rate, Foxman claims not to be calling for censorship of the film: “The League has not called for ‘censorship’ of the Gibson film, but rather asked for sensitivity to the dangerous implications of a conspiracy-oriented, historically false caricature of the Jews which has been repudiated by the Catholic Church itself.” Oh, I see: It’s not censorship Foxman wants it’s sensitivity. How should Mel show his sensitivity, though? Why, by “modifying” his film, of course. Abe, bubbeleh, if you talk like a censor and you smell like a censor, you’re a censor.

The country’s rapidly approaching the point where we enshrine in law a right not to be offended. In other places, like Australia, it’s already happened. When it happens here, God help us all (with, of course, no offense intended to you atheists and agnostics).