Monday, January 30, 2017

A Guide to Basic Differences Between Left and Right - Dennis Prager

A Guide to Basic Differences Between Left and Right - Dennis Prager

Source of Human Rights
Left: government

Right: the Creator

Human Nature

Left: basically good (Therefore, society is primarily responsible for evil.)

Right: not basically good (Therefore, the individual is primarily responsible for evil.)

Economic Goal

Left: equality

Right: prosperity

Primary Role of the State

Left: increase and protect equality

Right: increase and protect liberty


Left: as large as possible

Right: as small as possible

Family Ideal

Left: any loving unit of people

Right: a married father and mother, and children

Guiding Trinity

Left: race, gender and class

Right: liberty, In God We Trust and e pluribus unum

Good and Evil

Left: relative to individual and/or society

Right: based on universal absolutes

Humanity's Primary Division(s)

Left: rich and poor; strong and weak

Right: good and evil

Ideal Primary Identity of an American

Left: world citizen

Right: American citizen

How to Make a Good Society

Left: abolish inequality

Right: develop each citizen's moral character

View of America

Left: profoundly morally flawed; inferior to any number of European countries

Right: greatest force for good among nations in world history


Left: a social construct

Right: male and female

Most Important Trait to Cultivate in a Child

Left: self-esteem

Right: self-control

Worth of the Human Fetus

Left: determined by the mother

Right: determined by society rooted in Judeo-Christian values

Primary Source of Crime

Left: poverty, racism and other societal flaws

Right: the criminal's malfunctioning conscience

Place of God and Religion in America

Left: secular government and secular society

Right: secular government and religious society

American Exceptionalism

Left: chauvinistic doctrine

Right: historical reality

Greatest Threat to the World

Left: environmental catastrophe (currently global warming)

Right: evil (currently radical Islamist violence)

International Ideal

Left: world governed by the United Nations, and no single country is dominant

Right: world in which America is the single strongest entity

Primary Reason for Lack of Peace in Middle East

Left: Israeli settlements in the West Bank

Right: Palestinian, Arab and Muslim denial of Jewish state's right to exist

Purpose of Art

Left: challenge status quo and bourgeois sensibilities

Right: produce works of beauty and profundity to elevate the individual and society


Left: ideally universally abolished, except for use by police, the armed forces and registered sportsmen

Right: ideally widely owned by responsible individuals for self-protection and the protection of others


Left: intrinsically significant

Right: intrinsically insignificant

Racial, Ethnic and Gender Diversity at Universities

Left: most important

Right: far less important than ideological diversity

Black America's Primary Problem

Left: racism

Right: lack of fathers

Greatest Playwright

Left: entirely subjective; there is no greatest playwright

Right: Shakespeare


Left: not the answer

Right: sometimes the only answer


Left: wrong, except when directed at the political

Right: wrong, except when directed at evil


Left: all equal

Right: some are better than others

America's Founding Fathers

Left: rich white male slave owners

Right: great men who founded the greatest society

Purpose of Judges

Left: pursue social justice

Right: pursue justice

National Borders

Left: a relic of the past

Right: indispensable for national survival

View of Illegal Immigrants

Left: welcomed guests

Right: illegal immigrants


Left: intrinsically valuable

Right: made for man

Saturday, January 28, 2017

Abstract: Cleanliness is next to godliness or minimum wage? Effects of changes in real minimum wage on food establishment health violation scores in Seattle (6th Biennial Conference of the American Society of Health Economists)

Abstract: Cleanliness is next to godliness or minimum wage? Effects of changes in real minimum wage on food establishment health violation scores in Seattle (6th Biennial Conference of the American Society of Health Economists)

Cleanliness is next to godliness or minimum wage? Effects of changes in real minimum wage on food establishment health violation scores in Seattle

Tuesday, June 14, 2016: 1:35 PM

G50 (Huntsman Hall)

Author(s): Srikant Devaraj

Discussant: Erik Nesson

The economic impact of increase in minimum wage is widely studied, yet, the public health impact of increasing minimum wage remains an unexplored area of study. Facing increasing real minimum wage, restaurants could lay off staff and/or cut their hours; resulting in higher job demands on the continuing staff. These increased job demands could lower hygiene levels in the food establishments may not exacerbate to levels where health authorities close down the restaurant; increase in less severe hygiene violations has implications for public health. A significant labor force earning minimum wage is employed in the restaurant industry, and increase in real minimum wages may directly affect hygiene at food service establishments. There are 935,000 restaurants in the US generating $537 billion in sales annually, and according to a 2012 report by the Bureau of Labor Statistics, 1.54 million workers (or, 40% of the minimum wage workers in the US) are employed in restaurant and food services industry and earn income at or below the federal minimum wage of $7.25. According to the Center for Science in the Public Interest, between 2002 and 2011, 1,600 food poisoning outbreaks in restaurants affected 28,000 people.

To inform the empirical model, we develop a theoretical model on profit-maximizing food establishments that optimize hygiene violations when faced with increase in minimum wage. Higher critical violation scores have significantly negative effects (e.g., risk of closure and decreased demand/reputation), and cutting back on some services like those with non-critical hygiene violation scores could save on costs without affecting sales or the risk of closure). The theoretical model indicates that food establishments would realize decreasing hygiene quality with rising minimum wages. As an identification strategy we use exogenous raises in real minimum wage in Seattle and use year-to-year difference as predictor. During 2010, 2011, 2012, and 2013 the State of Washington raised minimum wage to $8.55, $8.67, $9.04, and $9.19, respectively. We use the panel data of hygiene violation scores of 4,749 food establishments in Seattle because Washington state is one among four states that require all employers to pay their workers the state’s full minimum wage before tips.

Consistent with our theoretical model, and with first-difference and other fixed effects alternate specifications, we find that for $0.10 increase in real minimum wage, total hygiene violation score increases between 3.35 and 8.99 percent. We also find suggestive evidence of increase in red violation score (more severe violations) between 0.71 and 4.24 percent and a statistically significant increase in blue violations score (less severe violations) between 2.97 and 6.49 percent. Using a difference-in-difference model, with restaurants in Seattle as treated group and food establishments in New York City as the control group, we find that an increase in real minimum wage significantly increases the total violations. Increase in real minimum wage could have consequences for public health, and is an important criterion to consider for food establishment owners, its employees, and policy makers.

Students: Our liberal colleges made us more conservative - Red Alert Politics

Students: Our liberal colleges made us more conservative - Red Alert Politics

“If one group on the liberal side, say Black Lives Matter tells people who may generally agree with their concerns ‘you can’t comment on this issue because you’re white/male/Christian/come from a certain income level’, that person is going to go to the side that is open to hearing them,” said Matt Lamb. “One of my first days at Loyola, which I started as generally socially moderate, if not liberal, someone said during a discussion about abortion ‘if you’re a man you don’t get to talk on this issue’, thereby saying my views weren’t valid (even if I generally agreed with them.’ That leads me, and others, to look at who is willing to listen to them on issues, even if there’s some disagreement.”

Friday, January 27, 2017

In Flint, We Are Laying Tragedy on Top of Tragedy on Top of Tragedy | Mother Jones

In Flint, We Are Laying Tragedy on Top of Tragedy on Top of Tragedy | Mother Jones

This is yet another tragedy. Children in Flint had mildly elevated levels of lead in their bloodstream for about a year or two. I wouldn't wish that on anyone, but the effects of this are fairly modest. To put it in terms most people will recognize, it means that some children in Flint will lose about one IQ point. Maybe two. That's a tragedy, but it's an even bigger tragedy if kids and their parents respond to this by thinking their lives are permanently ruined. The truth is that in nearly all children, the effects will be only barely noticeable.

Anti-Star Wars: Turning off & tuning out SJW drama

Anti-Star Wars: Turning off & tuning out SJW drama

We are also planning to respond with our recreational choices. In other words, “virtue signaling” stars will hurt the bottom line of any productions in which they participate, because a good portion of the intended audience will be “anger signalling.”

due process group | end Kangaroo Courts | college campuses

due process group | end Kangaroo Courts | college campuses

Thursday, January 26, 2017

Martin Karo: How green was my Tesla | Power Line

So how much energy does it take to move a Tesla, say, 1000 miles, as opposed to a similarly-sized luxury car? Calculating the latter is fairly easy: using a roughly equivalent car (in size and status) as a baseline, a BMW 740i/Li, it gets (according to the DOE) 24 mpg combined, or 21/29 city/highway. 1000 miles /24MPG = 41.7 gallons.
Now for the Tesla. A Tesla Model S uses about 38 KwH of power to go 100 miles, so to go 1000 miles, easy math, the car needs 380 KwH of electricity. The figures vary very little between city, highway and combined, because electric motors use no power when idling and are more linear in application. The main difference is air drag at speed.
Well, it’s not exactly “no power when idle.” There’s a parasitic power loss. A Tesla uses power just sitting there, running its internal computers and whatnot. Teslas used to consume 4.5 KwH per day standing still, but Tesla claims to have improved that to 1 KwH per day. There’s also the need to heat the battery, and heat the cabin; a gasoline motor uses waste heat for the latter and nothing for the former. Given that the average car is driven 15,000 miles per year, it would take 24 days to drive that far, so add another 24 KwH to the Tesla’s consumption for parasitic loss, and add another 5 KwH per day for battery heating and climate control over that period. (The EPA tests are measured with the car at operating temperature and the climate controls off.) So the Tesla uses 380 + 24 + 120 = 524 KwH over that time and distance.
That figure is not bad at electric power rates, but the issue is planetary efficiency – how green is it? How much fuel does a powerplant use to create that much electricity? The petroleum equivalent of that at the powerplant is 13.76 KwH per gallon of petroleum equivalent (figures from the EIA), so generating the power to move the Tesla that far takes 524/13.76 = 38.08 gallons.
But there’s many a slip ‘twixt the cup and the lip, and with electric cars there are several. First, transmission power loss consumes between 8% and 15% of the power just moving it from point of generation to point of use.
In California, the average figure is 9%. Add another 1% for the resistive power loss from where the power enters the home to when it gets to the Tesla’s charger. Let’s total it at 10%. So it takes 38.08 x 1.1 = 41.9 gallons to generate the amount of power the Tesla will use and then get it to the Tesla. But it takes even more than that, because the charging process itself is only about 85% efficient. (Tesla claims 91% efficiency, but real world experience seems to be more like 70 – 80%.) So 41.9 /0.85 = 49.28 gallons (678 KwH, if you were still counting those).
Liberals frequently care more about feelings than facts, and your smug Tesla-owning frenemy will never admit it, but in day to day usage, the big BMW is actually 18% more efficient, and 18% kinder to the planet. (Don’t get too cocky, Mr. 7 Series: at a US average 12 cents per KwH, the electricity cost to the Tesla owner for 1000 miles works out in total to about $81, as opposed to $98 for the gasoline. The reason the Tesla is less efficient, but still cheaper to run, is that the power company pays a lot less for fuel than the automobile driver does. But when the issue is green impact, not greenbacks, the BMW wins handily.)
Ah, but your frenemy retorts after mulling it over, “MY Tesla can run on solar power! And I can put solar panels on my roof! It’s free, I tell you! My S runs FREE!”
Not really. The average solar panel produces about 10 watts per square foot. So some quick and dirty math: taking out of the equation the long-distance power transmission losses, and spreading out the power generation evenly over the time period, how much square footage would our Green Californian need to power his Tesla? 524 KwH for 24 days, as established above, plus 2% for transmission power loss at the solar panel and house level, and accounting for the 85% charger efficiency, you need 628,800 watt-hours. Dividing that by 24, you need 26,200 watt-hours per day.
You get about five hours of useful sun power production per day, so you need to get 5,240 watts per hour. You lose about 20% of your electricity in large systems; and accounting for the fact that the sun also doesn’t shine every day, add another 15% for reserve capacity, so you need 7,532.5 watts per hour capacity to account for efficiency losses and those rainy days. At top efficiency, that means you need 753 square feet of solar panels. At an installation price of$7 – $9 per watt (average of $8), the Green Man needs to spend over $60k for that much power. If he’s off the grid (i.e., stores the power instead of using net metering via his local utility), the storage system cost is on top of that. 753 square feet is a lot of ugly acreage, but it’s doable.
Of course, no self-respecting Green Weenie would settle for powering his car by the sun, but his house by Con Edison. And with the average efficient house using 1 KwH per hour, i.e., 24 KwH per day, the house needs 4.8 KwH capacity, and considering efficiency losses and reserve requirements, that means 6.9 KwH for the house. So to power both the Tesla and the house, Green Man needs at least 1,443 square feet of power production, at a cost of $115,000. But even using a Tesla-only setup, $60k would buy 25,641 gallons of gasoline (at the current US average price of $2.34 per gallon). The Big BMW could travel, on that much fuel, 24,000 x 24 MPG = 615,384 miles. Game, set and match – Munich and Detroit. Sad!

Wednesday, January 25, 2017

Rebecca Friedrichs: Teachers stand against tyranny - The Orange County Register

The First Amendment to the U.S. Constitution reads, in part, “Congress shall make no law … abridging the freedom of speech.” Yet, because of laws that favor powerful unions and “labor peace” over the rights of individuals, millions of public school teachers have lost their rights to free speech and free association. We are required, as a condition of employment, to financially support teachers unions and their political agendas.
Americans of all political preferences would rise up against such tyranny if their rights were squelched by corporations, yet teachers unions have been legally trampling the free-speech rights of teachers throughout our nation for decades through forced dues used to fund their one-sided political agendas. This practice is unconscionable; especially considering that unions are tax-free “corporations” who long ago abandoned the individual rights and desires of their members.
For years, many brave teachers have attempted to make our voices heard within our union leadership, but unfortunately, the union we're compelled to hire as our “representatives” doesn't value our personal liberties. Ten teachers in California have had enough. We're suing the California Teachers Association and its affiliate, the National Education Association, to obtain freedom from compelled support for unionism.
Ironically, the union is using our involuntary dues monies to fund the court battle against us.
When unions started, at the turn of the last century, their united support for individual rights was needed and welcomed. Sadly, unions have become what they used to fight – powerful, entrenched organizations more focused on self-preservation and pushing their political agenda than on protecting the rights of individual members.
In education, the behavior of unions is even more horrifying because, in addition to the obliteration of teachers' constitutional rights, our students suffer even greater injustices as the unions use their ill-gotten billions to promote political policies that often create negative consequences inside and outside of the classroom.
The union is currently taking a stand that puts the rights of sex offenders and kidnappers over the rights and safety of school children. NEA, the largest, most powerful teachers' union in America, came out against a bipartisan bill that would prohibit convicted sex offenders, murderers and kidnappers from working in schools. I don't believe in allowing these people in our classrooms and neither do the teachers I know; however, we're all forced to financially support this dangerous and shocking position.
Unions continue to tell the public that teachers who disagree with their politics have no real complaints because they can “opt out.” Tragically, what they neglect to mention is that we can only opt out of the portion of the dues the union decides are political. We are not permitted to opt out of the collective bargaining portion of the dues, yet much of collective bargaining is political.
Every penny on the bargaining table is provided by hardworking taxpayers, yet, shockingly, unions force teachers to fund policies that are often harmful to taxpayers and the children they're working so hard to support.
Teachers who exercise their right to opt out of the unions' acknowledged political dues are still required to pay approximately $650 annually for highly political collective bargaining. In return, fee payers are bullied, treated as outsiders, labeled “nonmembers” and lose all “rights of membership” including liability insurance (although they're still paying for the liability insurance of the union hierarchy). Fee payers lose their voting privileges within collective bargaining, and the right to serve within union leadership. So, although they pay full collective bargaining fees, they're completely voiceless.
Because of powerful collective-bargaining agreements with school districts, the union has control over teachers' email and staff mailboxes. Unions censor and decide what communications teachers are able to send and receive, so it's easy to control members by withholding vital information.
Teachers are often in the dark about how their money is being spent in the political process both inside and outside of collective bargaining. When dissenting teachers try to share liberating information with their colleagues through district communication channels, those teachers are subject to discipline by district administration.
The unions also use fear to influence teachers into supporting union causes. Teachers are subjected to constant political manipulation during mandatory staff meetings at which they're strong-armed on issues such as opposing school choice for children. Then the unions spend tens of millions of teacher-funded dollars, and use the pressured assistance of teachers as political “boots on the ground” to help block the passage of student-friendly ideas like vouchers. Any teachers who find the courage to share opposing views on union political issues are subject to intimidation and shamed into silence.
When teachers ask how they can avoid supporting the union's political agenda, they're told to check a box on their union membership form. This “check the box” system was dreamed up by the unions many years ago when they added an additional $20 “contribution” to teachers' union dues, which already average $1,000 a year. Checking this box gives teachers a mere $20 annual refund from the union's “voluntary” PAC funds.
This sleight of hand is confusing many teachers who honestly believe they're opting out of union politics by checking a box when, in fact, they're still giving approximately $350 of their annual dues toward the union's admitted nonrepresentational political agenda, and another $650 a year in mostly political collective bargaining fees. Since many of these teachers have moral beliefs and fiscal standards that place them on the exact opposite side union politics, this practice is unethical and shady at best.
The Supreme Court held in a 1977 decision, Abood v. Detroit Board of Education, that states like California (and public employers in those states) can require employees to financially subsidize public-sector unions through “agency shop” agreements. Only the Supreme Court has the power to overrule this deeply flawed decision, and we will ask the court to do exactly that. Only then can teachers' rights to free speech and free association be vindicated.
We believe our case will prevail. In 2012, Justice Samuel A. Alito wrote the following for the majority ruling in favor of the employees in Knox vs. Service Employees International Union:
“When a State establishes an ‘agency shop' that exacts compulsory union fees as a condition of public employment, ‘[t]he dissenting employee is forced to support financially an organization with whose principles and demands he may disagree.' This form of compelled speech and association imposes a ‘significant impingement on First Amendment rights.' The justification for permitting a union to collect fees from nonmembers – to prevent them from free-riding on the union's efforts – is an anomaly.
What we're asking for is simple. We want teachers to be able to decide for themselves – without fear or coercion – whether to join a union and support its activities.
We live in a country that is supposed to be, as Abraham Lincoln said, “of the people, by the people and for the people.” However, because of forced unionism, our country has become a nation that is “of the unions, by the unions and for the unions.”
The time has come to put individual rights over the rights of powerful unions. Fighting compulsory unionism is simply the right thing to do.

Tuesday, January 24, 2017

Monday, January 23, 2017

Maxine Waters’s ridiculous claim that Betsy DeVos ‘has never seen the inside of a classroom’ - The Washington Post

Maxine Waters’s ridiculous claim that Betsy DeVos ‘has never seen the inside of a classroom’ - The Washington Post

National Urban Myths League: When Race Trumps Truth - Ryan Bomberger

National Urban Myths League: When Race Trumps Truth - Ryan Bomberger

The foolish Democratic crusade against Betsy DeVos

The foolish Democratic crusade against Betsy DeVos

What was most galling about the confirmation charade was the conceit of Murray and her gang that their positions are based on hard evidence and science while DeVos' are simply a reflection of her ideological fanaticism. But the fact of the matter is that there are two education paradigms in this country — the old one that favors public accountability via the political process and the new one that favors parental accountability via the market process. Democrats are wedded to the first one for ideological reasons — despite its 200-year history of failing poor kids — and simply won't give the second a chance. That's why they also declared war on DeVos for shielding Detroit's charter schools from being taken over by politicians. Incidentally, these charters, while far from perfect, have shown much better results than comparable public schools, as three independent studies, including by Stanford's CREDO, have shown.
If the DeVos confirmation hearing exposed anything at all, it is that the Democratic Party is now the Dogmatic Party. And that will not position it to fight the genuine threats to vulnerable minorities that the Trump presidency will almost certainly bring.

Sunday, January 22, 2017

Who’s Afraid of Betsy DeVos? - WSJ

Who’s Afraid of Betsy DeVos? - WSJ

Perhaps Mrs. DeVos’s most important qualification is that she has the courage of her convictions. Progressives are willing to brook billionaires who use their wealth to expand government or augment their political influence. Hyatt heiress Penny Pritzker, whose family is a major Democratic patron, served as President Obama’s Commerce secretary. But a conservative who’s dedicated her private fortune to liberating poor kids trapped in lousy public schools? The horror!

The DeVoses have donated tens of millions of dollars to charity including a children’s hospital in Michigan and an international art competition in Grand Rapids. They’ve also given to Christian organizations, which the left cites as evidence of concealed bigotry. Yet education has been their main philanthropic cause.

During the 1990s, they patronized a private-school scholarship fund for low-income families and championed Michigan’s first charter school law. In 2000 they helped bankroll a voucher initiative, which was defeated by a union blitz. The DeVoses then turned to expanding charters, which have become Exhibit A in the progressive campaign against her. Unions claim Michigan charters are inferior to the state’s public schools and that 80% are run for profit.

These claims are spurious. Detroit charters are low performing—only 19% of students are proficient in English—but they’re better than the alternative. Charter students in Detroit on average score 60% more proficient on state tests than kids attending the city’s traditional public schools. Eighteen of the top 25 schools in Detroit are charters while 23 of the bottom 25 are traditional schools.

Two studies from Stanford’s Center for Research on Education Outcomes (2013, 2015) found that students attending Michigan charters gained on average an additional two months of learning every year over their traditional school counterparts. Charter school students in Detroit gained three months.

Eighty-percent of Michigan charters utilize a private education service provider. Yet only about half are operated by a for-profit entity, and almost all of these are mom-and-pop businesses run by Michigan residents. While unions have fought to keep failing public schools open, Mrs. DeVos backed a 2009 law allowing the state to close public schools—charters included—that scored in the bottom 5% of the state for three consecutive years. Only seven of the 54 schools with two strikes in the past two years were charters.

The real reason unions fear Mrs. DeVos is that she’s a rare reformer who has defeated them politically. Prior to being tapped by Mr. Trump, she chaired the American Federation for Children (AFC), which has helped elect hundreds of legislators across the country who support private school choice. Last year AFC and its affiliate groups spent $5 million on elections compared to the teachers unions’ $138 million. Yet 108 of the 121 candidates AFC supported won their races.

And while we're at it, here's Reason Magazine:

Betsy DeVos, Donald Trump's pick for Secretary of Education, doesn't want to destroy public education. Public educators—and Title IX zealots—want to destroy Betsy DeVos. Passed in 1972, Title IX is the federal statute banning gender-based discrimination in any educational institution that receives federal funding. It effectively covers all public K-12 schools, many private elementary and secondary schools, and effectively all colleges, public or private.

Among DeVos's staunchest critics are so-called victims' rights groups. Know Your IX, an activist organization that works to diminish due process protections for students accused of sexual assault on university campuses, is tweeting under the hashtag #DearBetsy in hopes of pressuring her to continue the Education Department's misguided and legally suspect campaign against fairness and justice in university misconduct hearings.

"Ms. DeVos must fully explain whether she supports the radical view that it should be more difficult for campus sexual assault victims to receive justice," Sen. Bob Casey, a Democrat and member of the committee that will vote on DeVos's confirmation, told Politico.

Title IX supporters portray their critics as radicals who believe that every rapist should go free and that every woman is a liar. Of course, this is not the case. The Education Department's Office for Civil Rights's (OCR) interpretation of Title IX has come under fire precisely because OCR has taken a radical position: It believes that university students accused of sexual misconduct should be left with very little means of proving their innocence before poorly trained bureaucrats. It is OCR's opinion—not Congress' or the Supreme Court's—that federal law requires universities to investigate wrongdoing in accordance with a definition of sexual harassment so broad that it threatens academic freedom and free speech while denying fundamental due process to the accused.

That's why civil liberties organizations including the American Association of University Professors and PEN America have expressed serious concerns about OCR's handling of Title IX under President Obama. These are not radical organizations, and they consist mostly of liberal thinkers who want to protect free speech and due process for all.

All that said, it's unclear whether victims' advocates have anything to worry about—DeVos's opinion on Title IX is not widely known. She has met with Sen. James Lankford, a Republican and major critic of OCR, to discuss the subject, but that's about it.

Devos is a donor to the Foundation for Individual Rights in Education (FIRE), and this fact has activists particularly worried:

The donations are "a red flag," said Lisa Maatz, the top policy adviser at the American Association of University Women, which advocates for strict enforcement of Title IX, the federal law that governs sex discrimination, harassment and sexual assault on college campuses. "In the absence of an actual record … I think these kinds of donations take on even greater importance, because we have to rely on her contributions to inform us on particular issues."

FIRE is primarily a free speech organization, and DeVos might have donated $10,000 to the group for reasons other than a desire to eviscerate Title IX. But even if DeVos shares FIRE's attitude toward Title IX (and I hope that she does), this would not make her a radical about the issue of campus sexual assault. As FIRE explains:

The basic protections for which FIRE argues—the right to the active participation of counsel; the right to see the evidence in one's case and to meaningfully question witnesses; and the right to an impartial tribunal, among others—benefit all parties and do not impede the pursuit of justice. Outside of the campus context, nobody would argue that reducing due process protections, including the burden of proof, is necessary to secure a just outcome.

Public university students who are accused of misconduct deserve a fair hearing and a chance to defend themselves: This is the idea that Title IX loyalists deem radical. If Betsy DeVos wanted to take a second look at OCR's directives, this would not make her an extremist. It would put her in the company of countless civil liberties groups that believe OCR is currently operating outside the law.

But the crusade to portray DeVos as a dangerous ideologue is mulit-faceted. Critics have not been content to hound her for possibly thinking that OCR has overstepped. They also accuse her of wanting to destroy the public education system entirely. Sensing that an education secretary who supports school choice reform is a threat to their political power, teachers unions and their allies are relentlessly insisting that DeVos is some kind of radical anarcho-capitalist or religious fanatic when it comes to private schools.

Randi Weingarten, president of the American Federation of Teachers, had this to say: "In nominating DeVos, Trump makes it loud and clear that his education policy will focus on privatizing, defunding and destroying public education in America. Every American should be concerned that she would impose her reckless and extreme ideology on the nation."

Of course, there's nothing extreme or reckless about DeVos's support for school choice reforms. School choice is broadly popular, well-liked by fair-minded policy experts, and draws support from Democrats as well as Republicans. New Jersey Sen. Cory Booker, a rising leader in the Democratic Party, was a supporter of school choice, at least until recently. He formerly served with DeVos on the board of the Alliance for School Choice, in fact. Here's what Booker had to say about school choice, according to Breitbart News:

I cannot ever stand up and stand against a parent having options because I benefited from my parents having options. And when people tell me they're against school choice, whether it's the Opportunity Scholarship Act or charter schools, I look at them and say, "As soon as you're telling me you're willing to send your kid to a failing school in my city or in Camden or Trenton, then I'll be with you."

Now that it's politically inconvenient for Booker to say anything that would perturb teachers unions—huge power brokers in the Democratic Party—Booker has changed his tune. He claims to have "serious concerns" about DeVos.

It's not just the Democratic Party stumping for the teachers unions. The New York Times, ever the enemy of a well-educated populace, accused DeVos of "damaging" the fabric of public education in her home state of Michigan, where she spent considerable money promoting charter schools:

She has poured money into charter schools advocacy, winning legislative changes that have reduced oversight and accountability. About 80 percent of the charter schools in Michigan are operated by for-profit companies, far higher than anywhere else. She has also argued for shutting down Detroit public schools, with the system turned over to charters or taxpayer money given out as vouchers for private schools. In that city, charter schools often perform no better than traditional schools, and sometimes worse.

That Times editorial relies on reporting from the Times' Kate Zernike, who claims that DeVos is a "believer in a freer market than even some free market economists would endorse" and "pushed back on any regulation as too much regulation."

DeVos did nothing of the sort, as National Review's Ramesh Ponnuru explains:

You might think, then, that DeVos got legislation enacted that, well, reduced oversight of charter schools. The linked article, although biased against DeVos, makes no such claim. Rather, it shows that DeVos intervened to force the modification of legislation about charter schools. She opposed the creation of a commission that would have given traditional public schools a say in which charter-school networks could expand and which charter schools could continue to operate. (More on that dispute here and here.) The legislation that was eventually enacted omitted that provision and instead "allow[ed] the state to close the schools at the bottom of existing state rankings." There was, in other words, no reduction in oversight and accountability.

The Times is also waging war on established facts about charter schools. Studies consistently show that not all charters succeed, but providing kids with more education options leads to better outcomes in many cases. The Times editorial states that charter schools in Detroit "often perform no better than public schools, and sometimes worse." That's a curious misreading of the data, though, according to The Cato Institute's Jason Bedrick:

To claim, as the NYT does, that Detroit "charter schools often perform no better than traditional schools, and sometimes worse" based on these figures is a highly distorted way of presenting the data. It's equally true to say "Detroit charter schools almost always perform as well or better than traditional schools."

The Times has already proven that it has no interest in telling the truth about charter schools Just recently, a University of Michigan education professor was given room in the paper of record to argue that economists are generally skeptical of free market alternatives to public education. But the data she used to make this point was both out of date and misrepresented in the article. According to the most recent survey data, 44 percent of economists thought a voucher system would leave most students better off, 34 percent weren't sure, and just 5 percent thought not. Among economists with an opinion on the subject, the consensus overwhelmingly favored school choice.

That's because school choice is fundamentally un-radical. Education reformers don't want to defund public education and bring back child labor, they want to provide publicly funded alternatives to government-run schools that have failed their students, who are typically the poorest and least-privileged students.

In the policy battle over school choice, it's the teachers unions who are the radicals. They believe that they are entitled to an unbreakable monopoly on providing K-12 education, in defiance of a wealth of evidence suggesting that such a system is marred by bad incentives and serves only to protect public employees at the expense of kids and families. They smear any suggestion that competition could improve the system as an attempt to destroy public schools.

No, Betsy DeVos doesn't want to destroy public schools. Nor is there any reason to believe she wants to turn rapists loose on college campuses. Those who say otherwise are the real extremists.

Friday, January 20, 2017

How To Read News Like A Search Warrant Application | Popehat

How To Read News Like A Search Warrant Application | Popehat

Recently it hit me: what if I reviewed news stories with the skeptical eye I turn towards search warrant applications?

If you're not familiar with them, search warrant applications include a declaration under penalty of perjury from the investigating officer or agent. The declaration and supporting paperwork are supposed to identify the location to be searched, the items to be seized, and the specific facts providing probable cause that those items are evidence of a crime. Federal courts scrutinize search warrants more closely than state courts. That's not the law; that's just reality.

When I was a prosecutor, my job was to review proposed warrant applications from federal agents and make sure that they complied with legal requirements before submitting them for approval to federal magistrate judges. As a criminal defense attorney, my job is to analyze warrant applications that have yielded searches of my clients and scrutinize them for flaws and constitutional failures that I can present carefully and forthrightly to a judge so that the judge can then ignore or rationalize them. The critical eye that prosecutors and judges are supposed to use when reviewing a warrant application — and that defense lawyers use in evaluating whether they can be challenged — comes in handy in assessing the trustworthiness of news. Three doctrines in particular come to mind.

Attribution: Around the time I became a federal prosecutor, thanks to a series of unfavorable Ninth Circuit decisions (which, naturally, I resented at the time as unfairly anti-government), the U.S. Attorney's Office began emphasizing attribution in reviewing search warrant applications and prosecutor training. Put simply, attribution means this: for each fact asserted in the warrant application, how does the affiant know it? if the affiant learned the fact from someone else, how did that person know it?

A good search warrant establishes clean attribution for each fact, even if that attribution involves second, third, or fourth-hand knowledge. For example, a good search warrant would say something like this: "I spoke with Officer Jones of my department on January 15th, 2017. Officer Jones told me the following: she interviewed Mary Smith earlier that day. Smith stated that she was present at the corner of Elm and Oak and saw the car accident. Smith told Officer Jones that she was walking north on Oak when she saw a red SUV travelling at a high rate of speed run a stop sign and crash into the side of a green sedan." A well-drafted affidavit also identifies its factual inferences and its basis for them. "I obtained electricity usage records with an administrative subpoena to Southern California Edison for the subject address. I noted that, starting the month that suspect ROBERTS occupied the residence, energy usage spiked 350%, to a level that was consistently more than three times what the energy usage had been for the same time of year over the last five years at the residence. In my training and experience, I know that indoor marijuana grows often result in substantial spikes in energy usage because of the lights and other equipment used"

Thanks to thorough attribution, the reader knows the ultimate source of the fact and the ultimate source's basis for asserting the fact. A bad search warrant application, by contrast, makes assertions about what happened without any indication of how the affiant knows those facts.

A well-attributed news story might be less stilted. But it would still make clear the basis for the facts asserted in the story. Partial or unclear attribution obscures this. Take yesterday's extremely popular New York Times story about Rick Perry's gig as Energy Secretary. I certainly wanted to believe it. I deplore Donald Trump and, to a lesser extent (mostly thanks to his criminal justice stance) Rick Perry. The slams on Perry were artful and viscerally satisfying. The picture it painted confirmed what I wanted to believe about the administration. But notice how the story's main assertion — that Perry thought he was signing up to lead energy industry policy, when in reality his job would be primarily about nuclear security — comes in the first three paragraphs without any attribution. The fourth paragraph has a quote from a (former) insider, but the paragraphs are structured so it's impossible to determine if that source told the Times what's in the previous three paragraphs, or if he endorses that content (he says he doesn't), or whether he's simply provided a pull quote that the Times can present as consistent with their theme. Is the point of the story the Times' characterization or interpretation of facts, or is it based on something that a source specifically told the Times? If it came from the source, was it all based on direct knowledge or based on the source's own gloss? (Notice how the source switches from "I asked him" to describe one sentiment and the vague and unattributed "now he would say" for the second). We're left to guess.

Particularity: My debut as a prosecutor also coincided with a Ninth Circuit push for more particularity in warrants. That is, the Court pushed back against the habit of general warrants that sought permission to seize whatever the investigating agents felt like seizing.1 Instead, the Court demanded that warrant affidavits not only specify with reasonable particularity what is to be seized, but support the proposition that each thing to be seized is somehow evidence of a crime. "There are things that are evidence of a crime, some of those things are in this house, therefore all things in this house should be seized" doesn't cut it.

Particularly is useful in evaluating news stories too. If a story attributes a stance, or a goal, or a motive to a public figure, does it give specific examples of conduct consistent with stance? If the story offers examples of conduct — specific facts — does it connect them to the thesis of the article? Does it show how those specific examples actually support its thesis, or does it simply regurgitate them and rely on proximity to persuade the reader to assume they are connected? So, for instance, the New York Times' Rick Perry story has a number of paragraphs questioning Perry's qualifications, comparing the better qualifications of a prior Energy Secretary, and discussing Trump's likely energy policy. Are those paragraphs proof of the article's thesis? Does Perry's lack of qualification — if that's what it is — support the thesis that he thought he was going to be controlling energy use policy instead of nuclear security?

Corroboration: Anonymous or obscure sources are not inherently impermissible in search warrants or in journalism. A search warrant may rely in part on an anonymous source if the affiant corroborates that source — that is, offers other facts supporting what the source says. In theory a warrant application should corroborate facts only an insider could know. "My source told me that methamphetamine is being cooked at a green house at 123 Elm. I traveled to 123 Elm and observed that the house is, in fact, green" is not meaningful corroboration. "My source told me that suspect ROBERT is cooking methamphetamine at 123 Elm, that he began cooking in March 2016, and that he had precursor chemicals delivered there beginning in April. Based on my review of the Southern California Edison records described above, I noted that there was a 300% spike in energy usage at 123 Elm beginning in March 2016. My review of the UPS records described in paragraph 17 above showed a series of deliveries from an online chemical supply company beginning in April of 2016" is good corroboration.

I can't critique the New York Times Perry story on source corroboration because it's not clear what parts of it come from sources, anonymous or otherwise. But it's now routine for the media to offer sources — anonymous and named — with no corroboration and very little indication of the source's basis for knowledge (which is also an attribution problem). I recognize that journalists have an interest in protecting their sources, but that protection has a cost, and that cost ought to include a higher level of skepticism with readers. A reliable story based on an anonymous source would corroborate elements of the source's story in a meaningful way for the reader. Otherwise it's just the reporter's appeal to his or her own authority — I trust this person so you should as well — and that's no different than an agent's "trust my skeevy anonymous informer because I'm a cop so you can trust me."

If you're reading this to suggest that I think one "team" or another is more guilty of this or more or less credible, you're reading it wrong. Skepticism and critical reading are good. The fact that we'll certainly fall short is not a reason not to try. And gosh, what if a habit of critical reading of the news could even translate to critical evaluation of law enforcement claims? Nah. One improbable goal at a time.

Tuesday, January 17, 2017

The ‘fake news’ epidemic that doesn’t get denounced | New York Post

The ‘fake news’ epidemic that doesn’t get denounced | New York Post

For all the noise over the wave of post-election hate crimes supposedly committed by Donald Trump supporters, it turns out the real epidemic is one of . . . blatant hoaxes.

An African-American church was torched last month in Greenville, Miss., with “Vote Trump” spray-painted on the walls. The initial New York Times account had stressed the Trump angle, though Mississippi officials cast doubt on any “political” motive from the start.

Now police have made an arrest — of an African-American parishioner of the church. Other well-publicized fabrications:
  • A Muslim student at the University of Louisiana-Lafayette admitted making up the tale of two men, one in a “Trump hat,” assaulting her and tearing off her hijab.
  • Also owning up to a hoax was the guy who claimed he was assaulted in Malden, Mass., by two men chanting “Trump country.”
  • White men allegedly accosted a University of Minnesota student, yelling at her to “go back to Asia.” Now police say they couldn’t verify the incident — and she responded by deleting her Facebook account.
  • A Bowling Green U. student claimed men in Trump shirts threw rocks at her. But cellphone records show she wasn’t where she’d claimed during the incident — and on Facebook she said Trump backers should “all get AIDS.” She’s charged with obstruction.
Here in New York, of course, Yasmin Seweid was charged for falsely claiming she’d been beaten by men chanting, “Trump.”

In each case, the media accepted the initial story hook, line and sinker — and stressed the Trump angle.

Even without the Trump connection, the Times and other outlets ate up YouTuber Adam Saleh’s tale of being kicked off a flight just for speaking Arabic to his mom — which now stands exposed as yet another fake.

Which brings us to the larger point: A week or two back, the Times and its ilk were all over the threat of “fake news,” which supposdely enabled Trump’s election.

Funny how as the “fake news” furor fades, the false stories confirm liberal bias.

Monday, January 16, 2017

Campuses buckle under Obama policies: Glenn Reynolds

Campuses buckle under Obama policies: Glenn Reynolds

I Didn't Vote For Him But... - L'Ombre de l'Olivier

I Didn't Vote For Him But... - L'Ombre de l'Olivier

Why Trump Won

I have a lot of American friends and acquaintances who are of the non-“Liberal” persuasion; Libertarians, Conservatives etc. While some of them (a very few) were keen Trump voters and a fair number of others were unkeen Trump voters, who voted for him because #NeverHillary, there were a lot who were unwilling to vote for him or for Clinton and I suspect a few who drank heavily, held a clothespeg over their nose and voted for Clinton.

In the last two months since the election, and particularly the last few days I’ve seen a lot of them say things like this (from Larry Correia on the Book of FecesFaces)
I don’t even want to like the guy… Stop being such assholes, news media! You’re such douches you’re making people root for him.

Phrases like “I didn’t vote for him. But I’m starting to wish I had.” or “STOP MAKING ME WANT TO LIKE HIM.” are showing up all over the place. We’re even getting to “I’m not aboard the Trump Train yet. But I’ve got my ticket in hand and I’m standing on the platform.” or “I’m at the ticket counter for the Trump Train”

As Larry’s comment suggests, there’s a reason for this: the MSM and their buddies in Hollywood have thrown so much bile and hate towards Trump when he’s done next to nothing that the rest of us are beginning to think he might be all right after all. The accusations come from the sneering classes who have failed to hide their disdain for us normal people and are so over the top, so deranged, that it seems like they are scared of him. Plus of course Americans tend to have a spot for the plucky underdog, and although it is hard to see a billionaire as a plucky underdog, the frothing left have managed to do just that.

It is true that “the enemy of my enemy is my enemy’s enemy. No more. No less” however Trump has also managed to make cabinet picks that are entirely reasonable for non-liberals. Indeed some of them (DeVos, Perry and Pruitt) are the sorts of pick that we would have prayed for a President Bush, say, to make but were absolutely certain he wouldn’t make. Trump may not have been an obvious ally, but he’s no longer looking like an obvious Democratic Party stooge.

I don’t think the sneering classes have quite figured out how much their disdain for the rest of us is reciprocated. If these attacks continue, and continue to be baseless and laughably so, then Trump can expect that a large number of people on the right who didn’t want him and mostly don’t trust him are going to unite behind him and support him for longer than might be expected. The fact that this is caused by hate from the left makes it all the more Schadenboner delicious

The end of the university f*** buddy

The defence lawyer for a Durham University student who walked free after being charged with rape has warned that young men should never have sex with drunk women.

Alastair Cooke, 23, said last night that he was ‘delighted this nightmare is over’ after the case against him was dropped.

Speaking outside Durham Crown Court, Mr Cooke's barrister Cathy McCulloch warned that attitudes to sex and alcohol must change in universities.

'What happened to Alastair Cooke is every young man's nightmare and we need a campaign to educate them.

'Young men need to learn that if a woman presents as drunk but gives all the signs, as they see it, of consenting, she can still say later that she was not fit to consent,' Mrs McCulloch said.

'Young men know you cannot put roofies [date rape drugs] in a girl's drink, you can't spike a girl's drink, but we now need to take things a step further.

'Even if they have not given the woman the alcohol, if they have watched them take their own alcohol, if that woman appears to be drunk they must not go there.

'You cannot have a f*** buddy. It is about whether or not someone can give consent to have their body used in the most intimate act between two human beings.'

Mrs McCulloch added: ‘It is every mother’s nightmare, I have a 25-year-old son and it’s my nightmare.’

Mr Cooke, a third-year geology and geophysics student, was weeks away from an expected first class degree when he was arrested in 2015 on suspicion of raping a 23-year-old student in her home when she drunk.

But jurors could not agree on a verdict, and yesterday Durham Crown Court was told that the prosecution would not seek a retrial on the three rape charges faced by Mr Cooke and that his accuser agreed with that decision.

‘We therefore offer no evidence on these counts,’ said prosecutor Paul Cleasby.

The student was the third undergraduate to be cleared of rape in the past 12 months. Last January Louis Richardson, then 21, the former secretary of the Durham Union debating society, was cleared by a jury in less than three hours.

The history student, from St Helier, Jersey, and his family said they had been put through ‘15 months of absolute hell’.

Engineering student George Worrall, 22, from Cromer in Norfolk, faced three counts of rape, but last July after he had been under suspicion for 18 months the Crown Prosecution Service dropped the case before it went to trial, citing ‘inconsistencies of the victim’s account’.

Mr Cooke, who denied the charges, did not attend court yesterday and was at his family home in Truro, Cornwall, when he heard the news.

He said: ‘This has been a really difficult time for all those involved on all sides. I am delighted this nightmare is now over. I am looking forward to trying to piece my life back together.’

Mr Cooke, who now plans to complete his degree, was accused of raping the woman at her student house in June 2015 when she was very drunk and unresponsive.

He had known the woman, who cannot be named for legal reasons, for two years. It was alleged that he stalked her back to her home from a house party, let himself in and raped her three times in her bedroom.

But his barrister, Mrs McCulloch, told the court last month that the allegation arose from ‘regret which got out of hand’.

Jurors were also told that the woman had a tendency to exaggerate and that the ‘willowy’ Mr Cooke was too weak to throw her around ‘like a rag doll’ as she claimed.

It was alleged during his trial that the woman’s friends were a ‘mob’ who knew ‘exactly what it took to get a rape conviction’. Mrs McCulloch said: ‘They were all working together to help their friend.’

At the trial, the court heard that Mr Cooke was a volunteer with the Nightline student advice service and during his training he had role-played being accused of raping a drunken woman after following her home.

The scenario he had invented previously matched the alleged real-life events in June 2015, the jury was told.

#DearBetsy: kangaroo courts won’t solve campus sexual assault problem - The Boston Globe

#DearBetsy: kangaroo courts won’t solve campus sexual assault problem - The Boston Globe

Meanwhile, the American Association of University Women, among other organizations, has zeroed in on the $10,000 that DeVos gave to the Foundation for Individual Rights in Education, an ACLU-like outfit that, among other things, supports due-process rules.

You might not like DeVos’s financial conflicts or her family’s record on LGBT issues — I don’t — but the #DearBetsy campaign and the controversy over her FIRE donations show how ideological and unmoored the campus rape debate has become.

Let’s be clear: Cases of horrific sexual violence occur in college communities. Last year, Stanford swimmer Brock Turner received a prison sentence, albeit a lenient one, for sexually assaulting an unconscious woman behind a dumpster.

More recently, 10 University of Minnesota football players were suspended after a confidential investigator’s report detailed numerous acts of sexual aggression against a female student and specific evidence of players’ culpability. The rest of the team threatened to boycott a looming bowl game — until the report leaked and they saw what was in it.

In 2011, in an effort to protect women’s right to learn without fear of harassment or discrimination, President Obama’s Department of Education sent out a “Dear Colleague” letter seeking tougher action against sexual violence, while leaving many of the details up to individual schools. In response, well-meaning campus administrators have responded by erasing due-process protections for suspected offenders.

That erosion becomes evident in the public paper trail left by a contentious case at Brandeis. In 2011, the student handbook there gave those accused of serious misconduct the right to be informed of the charges in detail, to confront them at a hearing, and to review “all evidence and reports” presented there. The burden of proof, the handbook said, rested with the accuser.

The next year, the university gutted those protections in sexual misconduct cases. It lowered the standard of evidence that it used to assess guilt, as the government’s “Dear Colleague” letter had specifically demanded.

The university went further. In the 2012 handbook, “there was no requirement that copies of any ‘substantiating materials’ submitted by the accuser, or the names of any witnesses, be shown or provided to the accused any time,” wrote Judge F. Dennis Saylor, who reviewed Brandeis’s procedures in connection with a lawsuit in federal court. Saylor went on, “The accused had no right to confront or cross-examine the accuser, no right to call witnesses, and no right to confront or cross-examine the accuser’s witnesses. The accused had no right to review all the evidence.”

In the context of American legal culture, this is crazy. When corporate polluters get sued, not even the most passionate environmentalist would deny them details of the accusations against them. While violent crime devastates a community, progressives in particular would be aghast at efforts to repeal the Fourth and Fifth Amendments for suspected armed robbers.

Campus disciplinary proceedings aren’t court cases, but the underlying principle is the same: Standard rules of evidence and other protections for the accused keep things like false accusations or mistakes by authorities from hurting innocent people.

Instead, tales of murky, Kafkaesque proceedings have proliferated.

In the Brandeis case, a student identified as “John Doe” had sued Brandeis in federal court after being deemed guilty of sexual misconduct. (Saylor made a significant initial procedural ruling in Doe’s favor, though the suit was ultimately withdrawn.) His ex-boyfriend, “J.C.,” had filed a complaint against him more than six months after the end of a 21-month relationship.

A special examiner prepared a report, which, according to Saylor’s summary, wasn’t provided to Doe at any point in the investigation. Brandeis found him responsible for supposed misdeeds such as kissing J.C. while he was asleep, looking at his private areas when they showered together, and, at one point, sought to initiate a sexual act without formally asking permission. In other words, Doe behaved like normal, nonpredatory adults sometimes do when they’re dating.

The examiner treated their relationship as irrelevant. Instead of just dismissing a patently flimsy sexual-assault complaint, Brandeis seemed to split the difference: It held John Doe responsible for some minor sexual infractions but stopped short of expelling him.

Then the outrage-amplification machine kicked in. “Brandeis University Punishes Sexual Assault With Sensitivity Training,” a Huffington Post headline declared, after J.C. publicly decried John Doe’s penalty as overly lax. The case was one of two mentioned on the influential liberal website ThinkProgress in a piece entitled “Universities Keep Failing To Actually Punish Rapists.”

In an information vacuum, all sexual assault cases look the same. As Harvard Law School professors Jacob Gersen and Jeannie Suk Gersen declared in the Chronicle of Higher Education earlier this month, “In essence, the federal government has created a sex bureaucracy that has in turn conscripted officials at colleges as bureaucrats of desire, responsible for defining healthy, permissible sex and disciplining deviations from those supposed norms.”

Any backtracking by Trump’s administration will be greeted by suspicion at liberal colleges.

Yet those of us who generally believe in governmental activism, and think public and private schools alike should look after their students to the best of their abilities, should also recognize the limits of a university’s omniscience.

In the Stanford and Minnesota cases, the involvement of local law enforcement was crucial in establishing facts — and the gravity of the situation. Far more often, universities handle accusations of sexual assault on their own, in opaque proceedings that take the place of criminal investigations, rather than complementing them.

On their own, schools have never done this job well. While the Minnesota investigator did thorough work, most schools lack expertise in collecting evidence and evaluating witnesses. To avoid adverse publicity, schools have an incentive to keep all proceedings quiet, which means it’s impossible to tell from the outside whether they’re adjudicating cases fairly.

When students like John Doe are labeled as sexual assailants, while many victims of serious crimes still feel ignored, the problem is that colleges and universities are being pushed to do a job they’re not cut out to do. Sexual violence is a crime. Federal policy should press students and schools to involve law enforcement in every case. It shouldn’t just make harried college bureaucracies take on more investigations — only with ever more draconian rules.

Sunday, January 15, 2017

Ban 'mansplain' from the feminist vocabulary

Ban 'mansplain' from the feminist vocabulary

....But then I started getting this sinking feeling, the kind you got when your nine-year-old self (the one with short hair and a Sarah Connor figurine) won an argument with your brother about who got to sit in the front seat of the car, but you did it by kicking him in the shins and yelling "shotgun!" while he howled in pain. Somehow, the rosy glow of that hallowed front seat was tarnished by the knowledge that you went real low to get there.

When I called someone a mansplainer, I'd hit below the belt.

Feminists, this is our hour. These are the dark days. The world needs us, and it needs us to be smart, effective and bold.

What it doesn't need is for us to be allured by our cleverness into abandoning the rules of good argument. And this is why I'm calling for a moratorium on the word "mansplain" and its cousins, "manterrupt" and "bropropriate".

It's not just because we're tarring half the population with the same brush when we slap the word "man" in front of any verb and say it with a derisive tone. Nor is it because we risk offence. It's because this adversarial form of communication ain't working, and we need to try a different tactic. And I don't mean to sound hysterical, but the future of the world kinda depends on it.

This year hasn't been a good one for progressive, liberally minded types like us and, while the reasons are too complex to tackle in a single article, there is one I can home in on without trying very hard at all.

We're not winning enough friends or influencing enough people. It's not because our arguments don't hold water, or our position is doomed to fail, it's because people can't get past the note of intellectually superior nastiness that's oozing from our pores when we utter words like "mansplain".

If feminism is, as the T-shirt says, the "radical notion that women are people", then maybe it's time we adopted the radical notion that people are people too. Even man people. Who knows, if we use our linguistic power to sever the bullies and braggarts from the general male population, we might find the rest of mankind more receptive to our plight. Or maybe not. But at least then we'd be able to dance around the moral high ground in our pantsuits and whatever the hell undies we choose to wear, or not to wear.

We love reading about how everyone hates Hillary because she's a woman, and chortle when Tanya Plibersek calls Turnbull a mansplainer, but consider that at least some of Hillary's haters were made the day she called them a basket of deplorables. And that referring to a rare conservative politician who's happy to call himself a feminist as a mansplainer is a good way to wither the last tiny vestiges of goodwill between our kind and the people with whom we most need to engage.

By all means, challenge the men who talk down to you. Go get 'em, sister. But make your primary weapon logic, not scorn. Put that superior intellect to work on the vocab that precisely describes what's wrong with their behaviour, not the generalist sexism of a gendered slur. In case you forgot, gendered slurs are the kinds of things we feminists are supposed to hate.

Do your challenging without humiliating the other blokes in the room, who might even agree with you, if you could only couch your complaint in terms that don't demean them, too.

The thing about feminism is, it ain't over yet. We don't get to walk the low road just because we're not making progress as fast as we'd like. If you want people to change, you have to speak a language they can bear to listen to before you have any hope at all of them hearing a single word you say.

Let's banish mansplaining and start talking about the real battle for feminists.

Breath of the Beast: The Amusement Elite and Their Lesson for You

Breath of the Beast: The Amusement Elite and Their Lesson for You

Here is the core lesson I take from this: These moonbeams, as do all liberals, start from a false premise at the most basic level. The left is predicated on the assumption that human nature is basically good and that “people” can be “changed”. All leftist systems posit (at least implicitly) that the evil that people do and the flaws in human character are due to “outside" influences such as, bad economic systems or established religions or faulty laws and that all that is needed is a progressive approach and a new system and the innate good can be realized or the human material will become entrained and the world will be healed - or at least much improved. This has proven out in every case history. Nazism (National Socialism!), Chinese Communism, Russian Communism and Chavez in Venezuela were all collectivist systems that not only claimed to aim at a more egalitarian society but also promised some form of “new man” who would be of a higher and more selfless character.

They particularly resent The Constitution of the United States because, explicit in its conception and structure, is the assumption that human beings are not necessarily good or bad but are creatures with both potentialities. With that as a founding principal, the constitution has exquisitely balanced safeguards that enable the enterprise and ambition of all while, at the same time, keeping balance, opportunity and order through competing branches with equal but countervailing powers. Its less pure and noble sounding that the leftist view, but it is reality.

Just as they can imagine that human nature is exclusively good, they “reason” that, left to their own devices, people will be happy and content in a “natural” state. They ascribe all that is painful and even evil in life to flaws in “society”, “organized religion”, “morality”, “the culture” or any other target that exerts control over human behavior. This blameless image of the individual seems soothing and comfortable but the result is, anything but comfort. It leads to the idea that “freeing” the sweet angel of the human spirit from those controlling institutions and forces is the way to achieve peace, health, enlightenment and happiness. Wishing only to make life better and more equal for all, they set about dismantling (or, at least, arbitrarily refashioning) all the structures and values that have evolved to maintain health, peace and equilibrium- effectively freeing the dark jinn of evil which also resides in the human heart.

That is why they despise you, working people in America. That is why they feel it their duty to “educate” and “uplift” you. You know that you need to work at being good. You know that your church or synagogue has played a role in making you honorable and open. You thank god and the founders of America for the liberty and opportunity to work, live and thrive here. You are aware that the responsibility for protecting your self can never be fully entrusted to anyone else (when seconds count, the police are only minutes away!). You know that life is not balloon parties, unicorn festivals and trophies for showing up- and you know a bullshit fantasy when you see it.

But that is not “liberal” to them; they want to tear away the proven culture and safeguards and replace them with a socialism that supplants equality of opportunity with equality of outcome- otherwise known as universal misery. In the name of equality, and protecting the planet they want to bring all economic development to a standstill, redistributing wealth so that industrious and clever people earn no more than the most indolent and incapable. They call it Progress but it is really a corrupt ideology called Progressivism.

The zeal of “Progressives” springs from their “feeling” they know what is correct and needed. So sure are they that they are willing to force people to agree to their view of things- whether they like it or not. When reality becomes impossible to ignore and their “progress” leads to conflict, chaos and inequality (as it inevitably does in the real world), it is never blamed on Progressivism, it is blamed on whatever system was formerly of is still in place. Revolution, suppression and barbarity often ensue. Any idea that contradicts the romantic egalitarian principles is punishable. In Nazi Germany they were known as crimes against The Reich in Soviet Russia, Red China and Castro’s Cuba they were called counter-revolutionary. If you were imprisoned or exiled for those things, you were getting off lucky! And now, led by the brilliant pretenders and charlatans of the amusement and infotainment aristocracy, we are being urged to euthanize the constitutional system of government that created the finest, richest and most just nation in the history of the human race. And for what- collectivist government led by people who are so sure that they are correct in everything that lawlessness, fiat and intentional ignorance are acceptable tools for wielding political power?

So, lets have a big round of applause for the puffy faced, pretentious aristocrats who have made it so plain what we really should fear. They lay bear the arrogance and febrile imagination of Progressivism and what it is trying to do to our culture and constitutional politics. When one side proclaims itself inviolably correct and there are no safeguards for those who disagree, you have totalitarianism. Only imagine, if you dare, the murderous, totalitarian and nihilistic rage that would prevail if the amusement elite had their way. Ruthless totalitarianism always ends up requiring re-education camps, the punishment of retrograde (counter-revolutionary) ideas and assassination and those dangers lurk just behind their smug, superior smiles. They are, after all, so convinced of their righteousness. So, thanks, Meryl et al for the reminder of who you are and, more important, who Donald (Make America Great Again) Trump is. To repurpose the defunct Hillary slogan, I’m with Him!

Saturday, January 14, 2017

A Window Into a Depraved Culture | City Journal

A Window Into a Depraved Culture | Heather Mac Donald

Anti-police activists and the mainstream media are incensed at the suggestion that the Black Lives Matter movement could have influenced the behavior of the four individuals in Chicago who tortured a disabled white man for hours last week while yelling “Fuck white people” and “Fuck Donald Trump.” In one sense, the activists and media are right: The influences were broader than that. They include the reign of racial victimology, inner-city gang culture, and black anti-white animus.

We live in Ta-Nehesi Coates’s America, characterized by the assumption that blacks are the eternal targets of lethal white oppression. Coates’s central thesis in Between the World and Me, his acclaimed phantasmagoria of racial victimology, is that America continuously aspires to the “shackling” and “destruction” of “black bodies.”

Chicago’s four torturers certainly have not read Between the World and Me. But the book’s worldview echoes throughout our society, including in the inner city. Michelle Alexander’s equally publicized book, The New Jim Crow, argues that the U.S. seeks to reimpose de facto segregation on blacks via the criminal justice system. Alexander has been a staple on black media, among many other outlets. President Obama has insisted, even up to his last days in office, that blacks are the victims of a racist criminal-justice system. The press routinely disseminates phony statistics that purport to demonstrate a police war on blacks. These ideas matter.

Black Lives Matter ideology is just a more in-your-face manifestation of the Coatesian conceit that blacks are living in a system determined to destroy them. The Chicago Black Lives Matter chapter embraces the motto “Stop killing us,” aimed at the Chicago Police Department. It chants: “CPD, KKK: How many children did you kill today?” (The answer is: Virtually none. Last year, over 3,400 people in Chicago were shot, overwhelmingly black. Victims included 24 children 12 years of age or younger. The Chicago cops shot 25 people, virtually all armed and dangerous, or .6 percent of the total.) The Chicago Black Lives Matter chapter disseminates inflammatory lies about the Chicago police, such as that BLM activist Ja’Mal Green was beaten for 30 hours following an arrest for battery against an officer and trying to disarm an officer. Increasing the size of the Chicago Police department, per the Chicago BLM, will simply result in “more killings by police, more police torture and violence.”

These anti-law enforcement claims reinforce existing anti-white animus in the inner city. The notion that the dominant or exclusive racism in America today is white anti-black racism is absurd. Though many urban residents harbor no racial animosity, the recurrent “Fuck Whitey” and “Kill the cops” themes in rap music are not accidental. (Sample: “Kill the White people; we gonna make them hurt; kill the White people; but buy my record first,” by Apache, adopting without obvious irony lines from an Eddie Murphy parody; “The White man is the devil… Drive-by shooting on this White genetic mutant,” by Menace Clan.) I have been warned by residents of one East Harlem housing project not to go to a neighboring project because “they really hate whites there.”

Even if there weren’t already a strain of racial hostility in inner-city culture, the constant establishment refrain that whites oppress blacks at every opportunity would create it. Every highly publicized cop assassination in the last two years has triggered gloating on social media. Ja’Mal Green told the New York Times that the assassination of five Dallas police officers was “not a setback at all” for Black Lives Matter. The Dallas gunman had said he wanted to kill white people and white cops. Though Green insisted that he was not encouraging violence, he said that the assassination showed “the people of this country that black people are getting to a boiling point. We are tired of watching police kill our brothers and sisters. We are tired of being tired.” At some point, there “comes a time when black people will snap,” he said. While one is grateful for Green’s avowal not to be encouraging violence, such sentiments come close to rationalizing it.

The establishment typically looks the other way at manifestations of black anti-white animus. Racism in rap music is usually ignored. The Associated Press excluded any reference to the race of the victim and assailants in its initial report on the Chicago torture episode, as John Hinderaker observed at Powerline, and merely noted that police were investigating a “beating” captured on social media. The AP’s follow-up report acknowledged that someone in the video appeared to use profanities about “white people” and that the victim “appeared to be white,” while “others shown in the video appeared to be black.”

Radley Balko rushed to tweet out that the Chicago kidnapping is not a trend because since 2001, 80–85 percent of white murder victims were killed by whites. True, but the percentage of blacks killed by blacks is higher. From 1980 to 2008, 93 percent of black victims were killed by blacks. White-on-black homicides are much rarer than black-on-white homicides. The vast bulk of interracial violence is committed by blacks. In 2012, blacks committed 560,600 acts of violence against whites, and whites committed 99,403 acts of violence against blacks, according to data from the National Crime Victimization Survey provided to the author:

Distribution of violent victimizations, by race/Hispanic origin of victim and perceived race/Hispanic origin of offender, 2012–2013

Blacks, in other words, committed 85% of the interracial crimes between blacks and whites, even though they are 13 percent of the population. This data accords with the last published report on interracial crime from the Bureau of Justice Statistics; the Bureau stopped publishing its table on interracial crime after 2008, the first year of the Obama presidency.

Some portion of those black-on-white crimes may be driven by the same racial hostility that gives rise to urban flash mobs and the knockout game. As Dead Prez rapped: “We gonna order take out and when we see the driver/We gonna stick the 25 up in his face . . . White boy in the wrong place at the right time.” Even if the higher rate of black-on-white violence is simply a product of blacks’ higher rate of violence generally, that violent crime rate is another fact suppressed by the mainstream media whenever possible. In response to the Chicago torture video, Callum Borchers of the Washington Post sneered at conservatives’ supposed delusions, such as that “Chicago is a war zone.” This idea struck Borchers as so preposterous that he repeated it later in his column: “Oh, and by the way, Chicago (the part inhabited mostly by black people, anyway) is a super-dangerous place, just like Trump said.”

One wonders how quickly Collum would move his family out of the allegedly pacific South and West Sides of Chicago if he actually had to live there. The following is a partial sampling of crime headlines from Chicago papers over the last few weeks, in reverse chronological order:


SHOOTINGS KILL 4 PEOPLE, WOUND 24 SINCE SATURDAY, POLICE SAY [referring to the 24-hour period from December 31, 2016 to January 1, 2017]














Or maybe Borchers is only interested in the white areas of Chicago, which are not yet a “war zone.”

Black Lives Matter activist Shaun King, responding to the Chicago torture, rejected the idea of speaking out “on crimes committed by black folk because nobody in this country is held more responsible for the crimes they commit, and even the crimes they don’t commit, than black folk in America. . . . American prisons are full of black folk who are being held responsible for every mistake they’ve ever made.” Try telling that to Chicago Police Superintendent Eddie Johnson. Johnson regularly bemoans the fact that convicted gun felons in Chicago have little to fear from the criminal-justice system, because they are so quickly back on the streets following a shooting. The Illinois Black Caucus has blocked stiffer penalties for gun crime.

The victims of a November 2016 robbery spree in Chicago may also disagree with King that the criminal-justice system is vindictive against black criminals. Isaiah Scaife had already been convicted of theft, attempted theft, criminal trespass, and possession of a stolen motor vehicle before he turned 18, according to DNAInfo. He continued to commit gun crimes as a young adult. At age 19, after a conviction for aggravated unlawful use of a weapon, Scaife was already out on parole. That’s when he began his five-day crime spree on November 18, robbing a Subway store’s customers after sticking his gun in a baby’s face and trying to manhandle his way behind the restaurant’s counter. A few minutes later, he robbed a man leaving a Citgo gas station, beating the victim unconscious with his gun before shooting him in the face. The next day, Scaife returned to the same Subway, where he robbed and choked a man while a juvenile accomplice pointed a gun at the victim. A few days later, Scaife pulled a gun on a man at another gas station and stole his possessions and car. At his arraignment, he yelled at the court deputies: “I’m going to spit on your ass.”

Scaife is hardly unique. A huge percentage of violent crime is committed by people with serious criminal histories who are free to continue terrorizing the innocent. And, pace King, if you commit a drug crime, you’ll get more leniency in a large urban jurisdiction than in a rural county, where sentences for white drug dealers dwarf those of inner-city traffickers, according to the New York Times.

At least one of the Facebook torture assailants belonged to the gang culture that produces Chicago’s violent crime. Tesfaye Cooper posted a video on his YouTube channel in October in which he points a rifle at the camera and says: “I’ll put a bullet in your ass,” reports DNAInfo Chicago. Cooper’s Facebook page glorifies him posing with guns and paying homage to local murderers. His raps threaten to kill people who disrespect him and his crew.

The violence in the Chicago torture video does not arise in a vacuum. Most residents of inner-city areas are hardworking bourgeois citizens longing to live in safety and in racial harmony. But the video opens a window into a culture that America would prefer to turn its eyes away from—and which it has helped create.

What did Mann win?

Popehat explains:

The DC Circuit adopted the standard that the vast majority of states use for their anti-SLAPP statutes — the plaintiff only has to produce admissible evidence which, if accepted, is legally sufficient to win. That's the same standard courts apply to motions for summary judgment — motions in which the defendant argues that there's not enough evidence for the case to go to a jury. Practically that means that if the complaint is bogus as a matter of law (for instance, if it targets speech that is clearly just hyperbole or opinion), or if the plaintiff has no evidence to support it, the defendant wins — but if the complaint is legally plausible, and the plaintiff has any evidence to support it, the plaintiff wins.


Steyn's and CEI's Articles: The DC Court of Appeal held that the trial court was correct to deny the anti-SLAPP motion by Steyn, CEI, and Simberg. Mann won, and Steyn, CEI, and Simberg lost, that part of the appeal. The result is notable and, for several reasons, concerning.

There are two key elements to this part of the decision: the distinction between opinion and fact, and the question of what constitutes proof of malice.

Once again, only false statements of provable fact may be defamatory. Opinions, arguments, and hyperbole may not unless they imply false provable facts. "Ken is a jerk" can't be defamatory because it's not objectively provable; "I hacked Ken's email and he's a crook" might conceivably be defamatory because it could imply false facts.

Here, both Steyn's and Simberg's articles were replete with hyperbole, rather strongly signalling opinion. Moreover, they both disclosed the facts that they were relying upon — the hockey stick that another scientist [edited to correct: not Mann] called a "trick" to "hide a decline." I think — like others — that the better and more reasonable interpretation of these writings is that Steyn and Simberg were offering overt argument and opinion based on disclosed facts. You might disagree with the fairness of their conclusions — for instance, you might accept Mann's explanation of what the other scientist [edited: not Mann]meant by "trick," or believe that it's unreasonable not to agree with academic institutions that exonerated Mann — but conclusions based on data aren't defamatory even if they are unfair or unreasonable. That's classic protected speech.

The DC Court of Appeals, however, focused on a lack of overt signals like "in my view" or "in my opinion" or "I think" — silly formalism, in my view, but a pointer to practitioners of how one can manage libel risks. The court also focused on the fact that calling something "fraudulent" or "data manipulation" could possibly be interpreted as a statement of provable fact. The problem with this argument, I think, is that it is very selective about what context it considers. Steyn and Simberg are overtly operating in the context of a scientific culture in which someone has talked about a "trick" in presenting data in support of an argument to "hide" an inconvenient fact. That is the underlying fact framing their opinion. The fact is undisputed even if the interpretation of it is not. Their use of vivid and argumentative language helps establish that they are drawing conclusions, not asserting new (and unspecified) facts.

It's important to understand what the Court of Appeals found, though. It didn't find that Steyn's and Simberg's articles stated facts, let alone false ones. It simply found that Mann presented evidence that, if believed, could allow a jury to conclude that the articles stated facts rather than opinions. The court found he created an arguable issue, in other words. I don't agree, but that's much different than deciding that the articles were factual rather than opinion.

Next, the Court of Appeals found that Mann had presented evidence that was legally sufficient to show that Steyn and Simberg acted with malice. Malice, in this context, doesn't mean ill will — it means with knowledge that statements were false or recklessness about whether or not they were false. Mann has to meet that standard because he's a public figure — only false statements about him made with malice are defamatory. The court found that Mann had presented evidence of widely circulated studies and findings exonerating him, and that the existence of those studies could be accepted by a jury as adequate proof of knowledge that the factual allegations were false.

I think the Court's decision here was, at a minimum, badly framed. The entire point of Steyn's and Simberg's posts was quis custodiet ipsos custodes — that the scientific and academic community's policing of alleged wrongdoing by its own is incredible and unreliable when it is defending ideologically cherished consensus.

How To Spot And Critique Censorship Tropes In The Media's Coverage Of Free Speech Controversies | Popehat

How To Spot And Critique Censorship Tropes In The Media's Coverage Of Free Speech Controversies | Popehat

Fortunately, this ain't rocket science. Americans can train themselves to detect and question the media's pro-censorship tropes. I've collected some of the most pervasive and familiar ones. This post is designed as a resource, and I'll add to it as people point out more examples and more tropes.

When you see the media using these tropes, ask yourself: what normative message is the author advancing, and does it have any basis in law?

Trope One: "Hate Speech"

Example: "hate speech is excluded from protection. dont [sic] just say you love the constitution . . . read it." CNN Anchor Chris Cuomo, on Twitter, February 6, 2015.
Example: "I do not know if American courts would find much of what Charlie Hebdo does to be hate speech unprotected by the Constitution, but I know—hope?—that most Americans would." Edward Schumacher-Matos, NPR, February 6, 2015.

In the United States, "hate speech" is an argumentative rhetorical category, not a legal one.

"Hate speech" means many things to many Americans. There's no widely accepted legal definition in American law. More importantly, as Professor Eugene Volokh explains conclusively, there is no "hate speech" exception to the First Amendment. Americans are free to impose social consequences on ugly speech, but the government is not free to impose official sanctions upon it. In other words, even if the phrase "hate speech" had a recognized legal definition, it would still not carry legal consequences.

This is not a close or ambiguous question of law.

When the media frames a free speech story as an inquiry into whether something is "hate speech," it's asking a question of morals or taste poorly disguised as a question of law. It's the equivalent of asking "is this speech rude?"

Trope Two: "Like shouting fire in a crowded theater"

Example: " There is no freedom to shout 'fire' in a crowded theater." Prof. Thane Rosenbaum, Daily Beast, January 30, 2014.

Nearly 100 years ago Justice Oliver Wendell Holmes, Jr., voting to uphold the Espionage Act conviction of a man who wrote and circulated anti-draft pamphlets during World War I, said"[t]he most stringent protection of free speech would not protect a man in falsely shouting fire in a theatre and causing a panic."

That flourish — now usually shortened to "shout fire in a crowded theater" — is the media's go-to trope to support the proposition that some speech is illegal. But it's empty rhetoric. I previously explained at length how Holmes said it in the context of the Supreme Court's strong wartime pro-censorship push and subsequently retreated from it. That history illustrates its insidious nature. Holmes cynically used the phrase as a rhetorical device to justify jailing people for anti-war advocacy, an activity that is now (and was soon thereafter) unquestionably protected by the First Amendment. It's an old tool, but still useful, versatile enough to be invoked as a generic argument for censorship whenever one is needed. But it's null-content, because all it says is some speech can be banned — which, as we'll see in the next trope, is not controversial. The phrase does not advance a discussion of which speech falls outside of the protection of the First Amendment.

Trope Three: "Not all speech is protected"

Example: "Not all speech is protected by the First Amendment." Ann Coulter, Townhall, August 2, 2001.

Example: “Not all speech is protected if there is hate speech and it is intended to ridicule another religion,” he said. “I don’t believe it is a free speech matter.” Archbishop Paul Coakley, quoted on, August 8, 2014.

The media routinely prefaces free speech discussions with the bland and inarguable statement "not all speech is protected." That's true. In fact it's not in serious dispute. The problem is that the media routinely invokes this trope to imply that the proposed First Amendment exception it is about to discuss is plausible or constitutional because other exceptions already exist. Not so. Though First Amendment analysis can be complicated at the margins, the core exceptions to First Amendment protection are well-known and well-established. The Supreme Court — in the course of rejecting a proposed new exception — articulated them recently:

"From 1791 to the present," however, the First Amendment has "permitted restrictions upon the content of speech in a few limited areas," and has never "include[d] a freedom to disregard these traditional limitations." Id., at 382-383. These "historic and traditional categories long familiar to the bar," Simon & Schuster, Inc. v. Members of N. Y. State Crime Victims Bd., 502 U. S. 105, 127 (1991) (Kennedy, J., concurring in judgment)–including obscenity, Roth v. United States, 354 U. S. 476, 483 (1957), defamation, Beauharnais v. Illinois, 343 U. S. 250, 254-255 (1952), fraud, Virginia Bd. of Pharmacy v. Virginia Citizens Consumer Council, Inc., 425 U. S. 748, 771 (1976), incitement, Brandenburg v. Ohio, 395 U. S. 444, 447-449 (1969) (per curiam), and speech integral to criminal conduct, Giboney v. Empire Storage & Ice Co., 336 U. S. 490, 498 (1949)–are "well-defined and narrowly limited classes of speech, the prevention and punishment of which have never been thought to raise any Constitutional problem." Chaplinsky v. New Hampshire, 315 U. S. 568, 571-572 (1942).

The observation "not all speech is protected" adds nothing to a discussion because it offers no mechanism for determining whether the speech at issue falls into a traditional exception or not.

To see what I mean, consider the utility of equivalent rhetoric. You've been bitten by an unfamiliar snake, and you'd like to know if you need treatment.

You: Doctor, was the snake that bit me poisonous?
Doctor: Actually snakes are usually venomous. Though some are both venomous and poisonous.
You: Great. What about this snake here? I caught it in a bag for you to look at.
Doctor: There are both harmless and venomous snakes in North America.
You: Yes, thank you. Which is this?
Doctor: That snake has rings!
You: Yes. Yes it does.
Doctor: Some venomous snakes have rings.
You: Is there anyone else on duty I could see?

Trope Four: "Line between free speech and [questioned expression]"

Example: "Texas Shooting Sheds Light On Murkiness Between Free, Hate Speech." Headline, May 5, 2015.
Example: "Texas attack refocuses attention on fine line between free speech and hate speech." LA Times Headline, May 4, 2015.

Journalists and pundits talking about free speech disputes love to frame their stories as being about "the line between free speech and X," where X is the controversial expression in question.

This trope can be invoked accurately when there is a legally meaningful line separating protected speech and the type of speech called out. For instance, "the line between free speech and true threats" isn't misleading because "true threats" are an actual category of unprotected speech and there's a line between them and protected speech.

Too often, though, the "line" is invoked to imply a nonexistent legal distinction. The "line between free speech and hate speech" rhetoric from the examples above is misleading and meaningless because, as noted in Trope One, "hate speech" is not a legal thing. "The line between free speech and bullying" — another recently popular line — is another example. It implies, falsely, that there is a legally meaningful category of speech called "bullying" that lies outside of First Amendment protections. In fact there isn't — there are traditional exceptions to free speech (true threats, for instance) and some of that conduct could sometimes be described as "bullying," but that's not the same thing.

"The line between free speech and X" is often the rhetorical equivalent to "the line between vegetables and rutabagas": the author doesn't have a coherent argument that rutabagas aren't vegetables, but doesn't like rutabagas and thinks you shouldn't either.

Trope Five: "Balancing free speech and [social value]"

Example: "The incident raised heated questions about race relations — and how to balance free speech with protection from discrimination and harassment." Washington Post, March 3, 2015.

The media's love of "balancing" stories is a variation on its love of "line between" stories, only more misleading.

"Balancing," when used as a colloquial description of how courts decide whether speech is protected, is almost always wrong. American courts don't weigh the value of speech against the harm it does. When speech falls into an established exception to the First Amendment, as discussed above, no balancing is necessary; it can be restricted. When it doesn't, balancing of its "value" against other interests is almost always prohibited. As the Supreme Court recently said in rejecting the government's request to create new categories of unprotected speech through balancing:

The First Amendment's guarantee of free speech does not extend only to categories of speech that survive an ad hoc balancing of relative social costs and benefits. The First Amendment itself reflects a judgment by the American people that the benefits of its restrictions on the Government outweigh the costs. Our Constitution forecloses any attempt to revise that judgment simply on the basis that some speech is not worth it. The Constitution is not a document "prescribing limits, and declaring that those limits may be passed at pleasure." Marbury v. Madison, 1 Cranch 137, 178 (1803).

Courts occasionally engage in something that faintly resembles "balancing" when they apply different levels of scrutiny to speech restrictions. For instance, the Supreme Court said that Congress could prohibit the burning of draft cards because the government had a substantial interest in the draft system and the law was narrowly addressed to that legitimate interest, and aimed only at the non-communicative element of the conduct (destroying the card) and not the communicative aspect (doing so to protest the draft). But that analysis doesn't purport to assign a value to the speech. It considers only whether the government has a sufficiently compelling interest in its goal. Moreover, there's very good reason to doubt that the Supreme Court would ever approve a speech restriction that is content-based — that is, premised on dislike of the speech — no matter how strong the government's interest. The Court has repeatedly rejected calls to do just that, and a focus on the content of disfavored speech (when it's not within an established exception) is almost certainly fatal to the proposed restriction.

Trope Six: "This isn't free speech, it's [category]"

Example: "It’s not free speech. It’s bullying and intimidation. It’s a horror show." Mary Elizabeth Williams, Salon, February 17, 2015.

The First Amendment is, in a way, categorical: there are well-defined categories of speech that are not protected, as I discussed above. But media commentators often abuse categorical thinking by inventing new categories of speech outside the First Amendment. "This isn't free speech, it's hate speech." "This isn't free speech, it's discrimination."

The trope can be used correctly — "this isn't free speech, it's an unprotected death threat." But usually it's not. Usually it's invoked as shorthand for "I don't want to address First Amendment analysis so I'm just going to say in conclusory fashion that it doesn't apply at all."

Our response to the trope should always be the same — does this supported not-speech category exist, and is it one that's actually outside the First Amendment?

Trope Seven: "Fighting words"

Example: "There are two exceptions from the constitutional right to free speech – defamation and the doctrine of “fighting words” or “incitement,” said John Szmer, an associate professor of political science and a constitutional law expert at the University of North Carolina at Charlotte.", May 4, 2015.

No discussion of controversial speech is complete without some idiot suggesting that it may be "fighting words."

In 1942 the Supreme Court held that the government could prohibit "fighting words" — "those which by their very utterance inflict injury or tend to incite an immediate breach of the peace." The Supreme Court has been retreating from that pronouncement ever since. If the "fighting words" doctrine survives — that's in serious doubt — it's limited to face-to-face insults likely to provoke a reasonable person to violent retaliation. The Supreme Court has rejected every opportunity to use the doctrine to support restrictions on speech. The "which by their very utterance inflict injury" language the Supreme Court dropped in passing finds no support whatsoever in modern law — the only remaining focus is on whether the speech will provoke immediate face-to-face violence.

That's almost always irrelevant to the sort of speech at issue when the media invokes the trope.

Trope Eight: "[Professor] explained . . . ."

Example: "The exhibit of cartoons in Texas might have crossed the line, [Professor] Szmer said."

The media loves to quote a professor to support a viewpoint. This is intellectually neutral: it can be good or bad, depending on the honesty and qualifications of the professor selected.

Quoting professors about law is particularly risky, if your aim is an accurate and informative discussion of free speech law. If you call a physics professor and ask them what will happen if you drop your pencil, and why, he or she will say "it will fall, because of gravity." There is a relatively low chance that the professor will tell you "well, maybe nothing will happen" because he or she harbors the belief that the current gravitic regime is unfair and otherwise problematical. But when you call a professor of law, or political science, or journalism, and ask them a question about whether some controversial speech is protected by the First Amendment, there is an unacceptably high probability that you will get a quote expressing what the professor thinks the law ought to be. Sometimes the professor will flag a statement as an argumentative one, sometimes not. Moreover, some professors . . . . how can one put this delicately? Some law professors' views on how a court is likely to rule on an issue are untainted by exposure to actual courts.

Many professors will give you a sober, accurate and well-informed assessment of how a court would likely approach a given free speech situation. The trick is separating those professors from ones who are out of their field or mere advocates.

Trope Nine: "This speech may be protected for now, but the law is always changing."

Example: "'The way we interpret the constitution is always changing. The supreme court can change the rules, and does do so,' he said." The Guardian, quoting Eric Posner, May 6, 2015.

When existing American law clearly protects questioned speech, the media sometimes resorts to finding someone to say "the law can change, and maybe it should."

Yes, American law can change. Constitutional interpretation can change in breathtaking ways inside a generation.

But the United States Supreme Court has been more consistently protective of free speech than of any other right, especially in the face of media sensibilities about "harmful" words. Fred Phelps and the Westboro Baptist Church are universally reviled and held up as an example of the worst sort of speech; the Court found their speech protected by a margin of 8-1. The Court struck down an overbroad law prohibiting "crush videos" of animals being killed by the same margin. There is no sign of any movement towards the proposition that speech may be restricted because it is hurtful or disfavored — the sort of speech that provokes this banal media observation that law changes.

Pointers to more tropes are always welcomed, as are particularly good examples.