The Popehat Report

A Letter On Justice And Open Debate About Raping Children

Ken White — Sun, 01 Feb 2026 18:34:36 +0000

Our cultural institutions are facing a moment of trial. Powerful protests against raping children are leading to overdue demands that people not rape children, along with wider calls for greater avoidance of raping children across our society, not least in higher education, journalism, philanthropy, and the arts. But this needed reckoning has also intensified a new set of moral attitudes and political commitments against raping children that tend to weaken our norms of open debate and toleration of differences in favor of ideological conformity. As we applaud the first development, we also raise our voices against the second. The forces of illiberalism are gaining strength throughout the world and have a powerful ally in Donald Trump, who represents a real threat to democracy and to the generous funding of elite doctors, professors, writers, and intellectuals like us. But resistance must not be allowed to harden into its own brand of anti-child-raping dogma or coercion—which right-wing demagogues are already exploiting. The democratic inclusion we want can be achieved only if we speak out against the intolerant climate that has set in on all sides regarding promoting and socializing with people who rape children.

The free exchange of information and ideas with rich and powerful people irrespective of whether they have raped children, the lifeblood of a liberal society, is daily becoming more constricted. While we have come to expect this on the radical right, censoriousness is also spreading more widely in our culture: an intolerance of opposing views, a vogue for public shaming and ostracism, and the tendency to dissolve complex policy issues in a blinding moral certainty that raping children is bad and that people who rape children are bad, even if they can give us rides on helicopters and make us feel important. We uphold the value of robust and even caustic counter-speech against raping children from all appropriate and qualified quarters. But it is now all too common to hear calls for swift and severe retribution in response to perceived transgressions of speech and thought, such as socializing with and promoting child-rapists and treating them as cherished friends. More troubling still, institutional leaders, in a spirit of panicked damage control, are delivering hasty and disproportionate punishments instead of considered reforms. Crucially, these punishments are not just levied against regular employees whose role is to listen to us. They’re being imposed on us: editors, writers, journalists, professors, the heads of organizations, the people widely and justifiably recognized as the leaders of society. These leaders are are being ousted for what are sometimes just clumsy mistakes, like engaging in prolonged and mutually admiring correspondence with child rapists. We have reached the point where praising and celebrating a child rapist is seen as worthy of public condemnation even if we waited until the child rapist was not in the course of raping a child to praise them.

Whatever the arguments around each particular incident, the result has been to steadily narrow the boundaries of what can be said to child rapists about how great their parties are without the threat of reprisal. We are already paying the price in greater risk aversion among writers, artists, doctors, professors, journalists, and other leaders of America who fear for their livelihoods if they depart from the consensus, or even lack sufficient zeal in agreement, that being special friends with child rapists is “bad.”

This stifling atmosphere will ultimately harm the most vital causes of our time, which child-rapists tell us they are willing to fund and promote, often at really great parties. The restriction of debate and social interaction, whether by a repressive government or an intolerant society that discriminates against anyone who socializes with child-rapists, invariably hurts those who lack power and makes everyone less capable of democratic participation. The way to defeat child rape is by exposure, argument, and persuasion, not by trying to silence or wish child rapists away or turning down their dinner invitations or not flying to their islands to socialize amongst the children who are, we are certain, merely coincidentally present. We refuse any false choice between opposing child rape and embracing child rapists. We reject the censorial and repressive demand that we reflect on whether our normalization and promotion of child rapists enables them to rape more children. As doctors, professors, thinkers, writers, and other deserved elite of society we need a culture that leaves us room for experimentation, risk taking, and even mistakes in terms of exactly how much engagement to exercise with child rapists, especially when the child-rapists are funny and kind of awesome. We need to preserve the possibility of good-faith disagreement about whether to accept money and plane rides from child rapists without dire professional consequences. If we won’t defend the very thing on which our work depends, we shouldn’t expect the public or the state to defend it for us. Please join the few proud and brave institutions that realize that we should continue to thrive in our careers even if, for completely defensible reasons that prominent people like us are best suited to understand, we think child rapists are cool.

We Should Talk About The Morality of Political Violence

Ken White — Sat, 24 Jan 2026 23:29:59 +0000

Advocating the moral propriety or even moral necessity of a resort to force and violence is protected by the First Amendment to the Constitution of the United States of America. Noto v. United States, 367 U.S. 290, 298 (1961).

You know, for whatever that’s worth these days.

With that in mind: what are the best moral arguments against political violence in America?

By political violence, I mean violence aimed at stopping or changing a particular political circumstance, such as the rule of one group of persons over another, and not privileged by traditional legal norms like self-defense.

I mean to ask this question in a particular set of set of circumstances.

Typical Circumstances Discouraging Violence in America

Typically, America has enjoyed a set of circumstances discouraging political violence.¹ Those circumstances include:

A reasonably broad consensus that everyone gets a voice in how society is run, even if we don’t agree with other people’s choices.
People in power generally acknowledging that everyone gets a voice in how society is run, even if they aren’t always sincere.
A consensus that a reasonably broad range of dissent is legitimate, even if foolish or misguided.
Limits on using the mechanisms of government to punish political minorities.
A legal system that puts at least some plausible limits on people with power and holds powerful people accountable, at least on occasion.
A legal system that imposes consequences for sufficiently clear abuses of the rights of normal people, at least on occasion.
People in power acknowledging and obeying the legal system’s rulings even when they disagree with them.
People in power acknowledging laws as legitimate restrictions on their right to do things, and acknowledging they must be changed through the legal system or by new laws.
Rights being broadly understood to apply to everyone regardless of political affiliation.
Taboos against overt and conspicuous lying shared by people in power and a sufficiently broad portion of the populace.
A factual understanding of realty shared by a sufficiently broad group of Americans, involving institutions viewed as reliable sources of information by a sufficiently broad group of Americans.
A set of institutions — media, academic, or otherwise — willing and capable of distinguishing truth from falsehood and identifying the difference in a forthright manner.
A sufficiently broad consensus that even people we dislike are human beings with rights.
Political norms encouraging treating political opponents as human beings with different views of how to achieve shared goals.

A Set Of Circumstances Not Discouraging Violence In America

Now, if you possibly can, imagine a very different set of circumstances in America² :

A widespread belief, voiced by leaders of a ruling party and shared by their followers, that political participation by the political minority is inherently illegitimate and should be investigated, officially discouraged, diluted, and otherwise suppressed by law.
Leaders of a ruling party commonly asserting that the political minority should not only be outvoted, but should not have a voice in politics.
A ruling party and its followers that treat dissent as presumptively illegitimate and as justification for official punishment, prosecution, and violence, such as by using the term “terrorist” to label persons monitoring government use of force.
A ruling party and its followers that use the power of government to punish political minorities, such as through depriving states of federal funding if they do not vote for the ruling party.
A legal system that is increasingly unwilling or unable to place limits on the ruling party or its leaders, in part because the ruling party has coopted the Supreme Court.
A legal system that refuses to impose consequences for abuses of the rights of normal people, no matter how severe, because the ruling party will not prosecute those people and the ruling party’s supporters in the legal system obstruct any such prosecution, and because the ruling party will use the power of pardon to protect its supporters from consequences of abusing the rights of others.
A ruling party that treats rulings against it as inherently illegitimate and grounds for impeachment or other punishment.
A ruling party that treats laws, regulations, and other limits on its power as inherently illegitimate, supported by the most senior coopted members of the legal system, who prevent more junior members of the legal system from requiring the ruling party to abide by the rule of law.
A ruling party and its supporters treating rights as contingent on political affiliation, where equivalent speech is either protected or criminal depending on the political affiliation of the speaker, and where carrying a firearm is either sacrosanct or grounds for the state to use immediately deadly force against you.
A culture that celebrates overt and obvious lying as a sign of masculinity, authority, and patriotism, governed by a ruling party that openly brags that it tells despicable lies about ethnic groups to divert political discussion to its chosen topics.
A complete lack of shared reality and a complete lack of institutions supported by a shared consensus of belief.
A national media unable or unwilling to identify these circumstances clearly, and unable or unwilling to articulate what statements are true and what statements are false, crippled by a fatuous norm that requires treating both sides of any dispute as equally legitimate.
A ruling party that identifies many categories of Americans as less than human, without human dignity and having no rights, supported in that view by a substantial portion of Americans.
A ruling party that identifies anyone disagreeing as being less than human and as being devoted to destroying America as opposed to having different views of how to govern America, supported by a substantial portion of Americans who share that view.

That set of circumstances has a set of arguably predictable consequences:

Members of groups hated by the ruling party and its supporters — including racial and religious groups, immigrants, and dissenters or critics — can be assaulted and even murdered with practical impunity, both by government actors and by private individuals favored by the ruling party.
The ruling party can lie to justify said assaults and murders and no reliable institution can call the lies to account.
The ruling party can expand the hated group without rights at will.
The constitutional and statutory rights of the hated groups can be violated at will.
Anyone objecting can be punished by violence or by abuse of government power.
The populace is increasingly confused and uninformed because the institutions that should inform them are unable or unwilling to do so in a coherent manner.

Why Is Political Violence Immoral Under These Circumstances?

So, if we somehow bring ourselves to imagine those circumstances, what are the best moral arguments against resorting to political violence in an effort to resist or change them? Prudence and experience have shown one should consider, careful, the moral arguments about violence before using it, especially in political circumstances.

I’m not asking for practical arguments, like “because they’ll kill you.” I think there is a very good moral argument that is intertwined with practicality: if you try, the ruling party and its supporters will likely use even more unrestrained violence against not just you, but also innocent Americans who have not themselves made the moral choice to join you. In other words, your choice to use violence will likely result in more violence to others. A good criticism of people historically willing to use political violence is that they have been indifferent to that.

No. I am asking, under the set of circumstances I have asked you to imagine, in which the normal deterrents to violence have disappeared and the traditional alternatives to violence have been rendered increasingly futile, what are the best arguments that it would be morally wrong to engage in violence against the people creating this set of circumstances?

The question is probably too general as phrased. Different moral questions apply to different actors. For instance:

Armed government agents in the course of using unlawful force against noncombatants, shielded by unlawful impunity for their acts by the ruling party, present the strongest moral argument for political violence.
Government agents tasked to use unlawful force and benefiting from the ruling party’s unlawful impunity, but not at this moment using violence, present a different moral question.
What about noncombatant government leaders who direct and promote unlawful violence and abuse? I have always had a soft spot for the argument that war would be better if we shot the politicians and generals rather than the privates. What’s the moral argument against that in this circumstance, when the normal political and legal systems for holding them accountable have collapsed?
If an advocacy organization says that it is going to use state force to suppress and punish its foes, and says resistance will be met with violence, and the organization does indeed direct and encourage the government to engage in lawless violence, what is the moral argument against using political violence against members of that organization?
Say we identify a group of people — perhaps non-citizens — and encourage the nation to view that group with hatred and suspicion, and permit the government to use unlawful violence against that group, and to treat them without regard to legal rights and without any legal procedure, and embark on a program of deliberately expelling those non-citizens to the worst places possible and in ways most likely to cause them harm, in order to discourage other non-citizens from coming to America, and as part of an expressly white nationalist policy. Say we direct particularly despicable violence and abuse towards the most helpless of them, young children. Now say someone wants to add many Americans to that group of non-citizens by dishonest means — say, by bad-faith and dishonest advocacy to eliminate birthright citizenship. The natural and probable consequence if that advocacy succeeds is death, suffering, and deprivation of rights, especially of children, and it may succeed without regard to merit because the ruling party has corrupted legal institutions. What’s the best moral argument against using political violence against the advocates making the bad-faith arguments, under this set of circumstances?
Under traditional circumstances, if you call for me to be killed or assaulted or imprisoned without just cause, the chances of that happening are blunted by the set of norms and institutions I described. Under current circumstances, in the absence of those norms and given the impotence of those institutions, when you call for me to be killed or assaulted or imprisoned, what’s the best moral argument against me using violence against you?

No, Really, I’m Asking

These are obviously not new questions, even if the current set of circumstances are new, or seem new. The question of when it’s morally justified to break the law, and when it’s morally justified to use violence, are ancient. But perhaps we don’t ask them as often as we need to, as those before us did when it was their right, their duty, to do so.

I think I have been perfectly clear. However, for the benefit of people easily offended by implication over bluntness, I think there is a plausible argument that it is morally permissible, and even morally necessary, to use political violence against the Trump Administration and its agents and supporters under the current circumstances in America. The arguments in favor are likely to grow.

1 That doesn’t mean those circumstances render political violence immoral, or impossible, or even that they prevent political violence altogether. It doesn’t mean that all Americans have been equally free from political violence, or that all Americans enjoy the benefit of those circumstances, or that some of those circumstances aren’t sometimes illusory. I mean that that set of circumstances makes Americans less open to the argument that political violence could be morally acceptable or even mandatory, because violence seems like an unnecessary and gratuitous.

2 Again, this list is not meant to imply that these circumstances, or ones quite like it, have not previously existed in America, at least for some Americans.

How "Free Speech Culture" Is Killing Free Speech: Part One

Ken White — Sun, 21 Sep 2025 22:18:24 +0000

I’m a long-time critic of the modern concept of “free speech culture” — the notion that support of freedom of speech requires me not just to refrain from official censorship, but to avoid a wide array of expression that might chill, deter, or punish other people’s speech. The legal view of free speech protects an unpopular speaker from being jailed or (successfully) sued; “free speech culture” is a social norm that discourages me from calling for that person to be fired, shunned, or otherwise socially sanctioned, or criticized to a degree that is, by some poorly defined measure, excessive.

In my view, the “free speech culture” ethos has substantially contributed to intellectual framework that has allowed the Trump Administration and other bad actors to engage in official government censorship to an unprecedented degree.

In this first post, I will describe my criticisms of the “free speech culture” ethos. In the second, I will argue that the ethos formed the rhetorical and intellectual basis for dramatically expanded official censorship.

My criticisms of the “free speech culture” ethos include the following:

The First Speaker Problem: “Free speech culture” suffers from what I call the First Speaker Problem: it picks a speaker, treats that person’s speech as the speech that should concern us, and then applies a set of cultural norms and questions only to the responses to that speech.

For instance, imagine that a speaker came to your university to argue that no professor should be allowed to teach “gender ideology,” that affirmative action resulted in unqualified students taking up the places of qualified students, that undocumented students should be expelled, and that the school’s curriculum should be examined for “anti-American” and “pro-communist” content. Imagine also that a group of students protest the speaker’s invitation, call for the speaker to be disinvited, shun and decry the student group that invited the speaker, and protest loudly outside the speech, shouting insults and abuse at attendees.

“Free speech culture” analyzes this situation by asking questions like “do the actions of these protestors encourage or discourage speech? Would such protests deter others from speaking? Do these protests make students who agree with the speaker less likely to speak up? Would these protest tactics, if widely repeated, result in more speech or less? Do these protests support an idealized view of civilized debate and discourse? Do they dehumanize the speaker rather than addressing the speaker’s views? Are the students’ reactions disproportionate? Do they seek to impose ‘real-world’ consequences on someone who is only offering a viewpoint?”

But “free speech culture”, as typically used in America, does not ask those questions of the person who has been chosen as the First Speaker. In other words, the “free speech culture” approach treats as irrelevant the questions “does this speaker’s speech encourage more speech? Does it deter speech? Does it attack and chill anyone from speaking? Does it promote an idealized view of debate and discourse? Does this speaker propose to impose ‘real-world’ consequences on speech? Does the speech dehumanize the person being criticized instead of addressing their arguments?” But only the people responding to speech are asked those questions; the first speaker occupies a preferred position and his or her speech is treated as presumptively, inherently promoting “free speech culture.” Hence, the speaker in this hypothetical — who is in favor of official state censorship — gets treated as the free speech culture “hero”, and the students protesting the speaker get treated as the free speech “villains.”

This is philosophically, intellectually, and morally incoherent. That’s especially true because selecting the “first speaker” is often an arbitrary exercise. Our speaker came to campus to denounce “gender ideology” because professors and students engaged in protected speech about “gender ideology. Why aren’t they the First Speaker? Why isn’t the professor teaching “communist” ideology the First Speaker, and why isn’t the speaker calling for their censorship violating the social norms of “free speech culture”? Why isn’t the question “by coming to campus and advocating for censorship, isn’t this speaker chilling and deterring speech?” Why does “free speech culture” not inquire whether the speaker is dehumanizing anyone or whether the speaker is addressing those people’s actual arguments?

The answer is primarily stylistic and cultural. “Free speech culture” means that you can call for censorship, disproportionately abuse other people for speech, chill and deter people for speech, even call for violence against others so long as you do it in certain ritualized and stylized ways that people who were on the debate team like. If you dehumanize fellow Americans from a lectern or with a debate moderator or as a contributing writer to a magazine, that promotes free speech culture; if you do it in a social media post denouncing the speaker, or from a protest outside, or in a letter to the Dean, that harms free speech culture. “Prove me wrong” is a magical incantation that renders what follows pro-free-speech-culture.

The Interests of Dissenters: The flip side of irrationally preferring the First Speaker is irrationally diminishing the speech interests of dissenters. “Free speech culture” has a natural tendency to discount the speech rights and interests of people who criticize speech. Often it treats those interests as having no weight. Take the Editorial Board of the New York Times, which famously and fatuously proclaimed a “fundamental right” to speak “without fear of being shamed or shunned.” But proclaiming this right inherently requires the New York Times Editorial Board to believe that the shamers and shunners don’t have a right to speak or associate. The proposition doesn’t weigh their interests at all.

Promoting Ignorance of Free Speech Rights: The “free speech culture” movement has a natural tendency to promote civic ignorance. Especially when “free speech culture” adherents use sloppy language, they tend to suggest a false equivalence between being punished by the government and being socially punished by peers. This promotes the increasingly widespread view that criticism is a form of censorship that violates the rights of the target of censorship. But criticism, denunciation, shunning, and calling for consequences against a speaker are not government censorship. Criticism, denunciation, shunning, and calling for consequences for speech represent some other speaker’s freedom of speech and association. When you blur the line between the two, you encourage ignorance of the First Amendment and other sources of free speech rights. Knowledge is good and ignorance is bad. A free people should understand the contours of their legal rights. A little pedantry — consciously and explicitly pointing out the difference between free speech rights protecting you legally and social norms protecting you socially — goes a long way to promote civic education. By contrast, treating individual speech and government censorship as equivalent promotes ignorance. So, frankly, does simply hand-waving the difference, like “[t]he restriction of debate, whether by a repressive government or an intolerant society, invariably hurts those who lack power and makes everyone less capable of democratic participation.” One of those things is not like the other; those two things are not the same, and the difference is fundamental to ordered liberty.

The response to state censorship is the invocation of the rule of law — using official power (for instance, of the courts) to prevent some other official power from punishing or limiting. When you conflate criticism with censorship, you encourage using the rule of law to address criticism. More on that in Part Two.

Preferring The Powerful To The Powerless: “Free speech culture” has a natural tendency to prefer the interests of more powerful, famous, wealthy people with bigger platforms over the interests of more powerless, obscure, poor people without big platforms. If people who give speeches and participate in debates are inherently heroes and people who “excessively” criticize them or call them to be deplatformed or punished are inherently villains, then the heroes are going to be professional pundits and politicians and other prominent folks and the villains are going to be students and people whose platform is a hand-lettered sign or a shout at a protest or a screed on a social media account. The multi-millionaire pundit with a column and podcast and network who comes to a university and says some students don’t belong there is the free speech hero; the students in question who protest the pundit and say he or she shouldn’t be there are villains.

This can reach deeply embarrassing depths of self-pity, as when famous and experienced thinkers show up at a high-school to drop the n-word and portray themselves as victims when high school students protest by the classic method of walking out.

As further illustration of the preference for the powerful, consider the Harper’s Letter. It addressed the vulnerabilities of editors, journalists, professors, researchers, and “heads of organizations.” That focus is a natural element of “free speech culture” because those are the people we listen to and perhaps admire, and the people we notice when they’re fired or deplatformed. We don’t tend to notice a minimum wage worker fired for a bumper sticker.

As a result, the ethos of “free speech culture” tends to distort our understanding of who poses the biggest threat to our actual, tangible freedom of speech. The people currently using official government censorship to deport students for writing op-eds, fire professors for insufficiently mournful tweets, and restrict college curriculums by force of law were all very much in favor of “free speech culture” and loud critics of “cancel culture.” They spoke behind lecterns and debated through moderators and wrote op-eds, so they were not treated as a genuine threat to “free speech culture.” At the same time, university students — largely debt-ridden, ill-clad, sophomoric, noisome wretches, if you will permit me a moment of old-mannism — were relentlessly portrayed as the greatest threat to free speech culture. How’s that working out for you?

I’m not denying that students can be illiberal, censorial, close-minded assholes who think they should be able to dictate what you say or who you listen to. They can be! What I’m saying is that the “free speech culture” ethos has relentlessly sought to portray relatively powerless people like students as the prime threat to free speech in America. Again, how’s that working out for you?

Vulnerability To Bad Faith And Manipulation: The ethos of “free speech culture” is extremely vulnerable to manipulation and bad faith. In part that’s a function of its vagueness and philosophical incoherence. “Cancel culture” is rarely defined at all, let alone well, and the “criticism is censorship” mindset allows powerful people to portray classic American protest as some sort of rights violation. Donald Trump decried “cancel culture” as “totalitarian” despite his record of censorial behavior long before he went on an official censorship binge; that’s a feature, not a bug, of the linguistic flexibility of “free speech culture”.

Moreover, part of “free speech culture” is presuming that our interlocutors are speaking and acting in good faith even if they are manifestly not, to the point of civilizational suicide. Consistency, honesty, and sincerity matter. This was a fundamental element of my disagreements with Foundation for Individual Rights in Education leader Greg Lukianoff. As I will describe more in Part Two, we are reaping the consequences of treating bad faith as good faith and hypocrisy as sincerity.

Moral Sociopathy: When the American Civil Liberties Union fought successfully for the rights of Nazis to march at Skokie, they did not convene a public meeting to ask the Nazis to explain why the Jews were so bad, and they did not portray the Nazis as heroic warriors for free expression. That would have been unserious: the Nazis, given their way, would have suppressed many people’s speech. Rather, the ACLU’s stance was that the First Amendment doesn’t permit censoring the Nazis however repugnant they are.

The “free speech culture” ethos, by contrast, has a tendency to go well beyond arguing that awful bigoted totalitarian people shouldn’t be officially censored or fired. Rather, it encourages treating people as “free speech heroes” so long as they are struggling for their own right to speak, irrespective of what they would do to other people’s right to speak. It also has a habit of apologia. It tends to drift defensively from “we shouldn’t call for people to be fired for saying awful things” to “actually what they say is not that awful.”

That’s how people nominally in favor of liberty can repeatedly platform and promote folks like Chris Rufo, someone who says rather explicitly he’s going to use propaganda and media manipulation and government force to seek censorship of ideas in academia. Rufo became the darling of the “liberal” media and of nominal libertarians even as he told them he was going to eat them. He had their number: he did it in that stylized, ritualized, culturally appropriate way, so they were happy to give him a platform to call for their own muzzling. The sheep invited the wolf to dinner, and the wolf grinned.

Or take Amy Wax. Amy Wax is a loathsome bigot who thinks America would be better if my children weren’t here. The Foundation for Individual Rights and Expression believes — very correctly, I think — that when Amy Wax’s university seeks to discipline her for speech, it must obey its own rules and carefully consider the values of academic freedom and due process. It also says “[t]o FIRE, her viewpoint is beside the point,” which is the correct way for a rights-defending organization to view the situation. But it goes further and offers her a platform to promote her views. That’s a “free speech culture” ethos move: the ACLU shouldn’t just use the rule of law to defend the rights of Nazis to march, the ACLU should have the Nazis on their radio show to explain why Jews are bad.

In short, “free speech culture” is bad and unserious to the extent it tells us that speech is morally neutral and that we should not make value judgments against it, and that there is no moral component to promoting it. I am committed to the defense of the legal right to speak, considerably more broadly than some people like. But it is morally and philosophically incoherent to suggest that defense of speech requires us to refrain from speaking very frankly about moral truths. Giving Amy Wax a platform to be a bigot is morally distinguishable from saying she should be free to be a bigot. “The only immoral thing you can say is that someone else’s speech is immoral” is not an ethos worthy of respect.

You may disagree with me that Chris Rufo and Amy Wax are awful. That’s fine. The disagreement I am talking about is whether it’s relevant. The disagreement I am talking about is whether it’s morally neutral to promote bad things as opposed to promoting the right to be bad.

Making the Deal Look Unpalatable: All of these problems combine to do something very dangerous: they suggest to Americans (and particularly young Americans) that free speech is bullshit.

Every generation of Americans must come to terms with the fundamental bargain of free speech: we agree that we won’t use the mechanism of the state to punish speech we don’t like and will talk back instead. This is not the default American view, nor the human one. The default view is “let’s use power to promote speech I like and punish the speech I hate.” It’s a tough sell to move people away from that. Every generation has to accept the deal that they’re going to refrain from censorship to protect their own right to speak. Plenty of us still don’t accept that bargain, but if a critical mass of people don’t accept it, then it stops working. Free speech is Tinker Bell; if enough kids don’t clap, she dies. Or as Learned Hand put it more poetically: “liberty lies in the hearts of men and women; when it dies there, no constitution, no law, no court can even do much to help it.”

“Free speech culture,” as practiced in American, makes this deal seem like a scam. “Free speech culture” tells students that free speech means someone can come to their campus and say bigoted and evil things and that’s good, and that their remedy is more speech, but if they use that speech the wrong way, that’s bad. “Free speech culture” tells people that we should be more worried about a prominent podcasters’ speech being chilled than their speech being chilled. “Free speech culture” elevates the rituals of a particular elite, academic style of speech over substance, such that calling for censorship from a debate stage is pro-free-speech-culture. “Free speech culture” tells people they should shut up about the things that make them passionate so other people feel more comfortable disagreeing with them. “Free speech culture” is intellectually, morally, and philosophically incoherent and people perceive that incoherence. “Free speech culture” is currently telling students and professors that it’s their fault that government force is being used to deport and expel and fire and censor them because they dissented wrong. “Free speech culture” tells people that others have the right to denigrate them, but they have some ill-defined obligation not to respond too hard. “Free speech culture” tells people they’re wrong and illiberal to notice that people using government force to censor them were previously calling them illiberal and censorial.

If this just meant that people would reject the deal of “free speech culture” I wouldn’t particularly care. A vapid philosophy is not entitled to a following. But the deal people are rejecting is respect for legal norms of free speech. The norm that is suffering is the norm against government censorship. When enough people think that all of free speech, including free speech law, is bullshit, then free speech rights won’t be enforced. That’s the path we’re on, and in my view, the ethos of “free speech culture” shares the blame.

In Part Two, I’ll talk about how we can trace these problems to the current official government censorship trending in America.

Only Criminals Don’t Want To Be Gassed By The Government

Ken White — Tue, 08 Jul 2025 19:46:14 +0000

The United States Attorney’s Office for the Central District of California, my former employer, has filed a criminal complaint against Alejandro Orellana, a local immigration activist in Los Angeles. They’ve charged him for distributing face masks to protestors. They specify that the masks are supposed to protect protestors from “chemical splashes and flying debris,” a goal they claim is self-evidently criminal.

The complaint is shameful, a propagandistic paean to authoritarianism. A quarter-century after I left that office it stings that the office brought the complaint, that a magistrate judge I respect signed it, and that a former colleague is prosecuting it. I am repulsed.

The U.S. Attorney’s Office has charged Orellana with conspiracy to commit civil disorder and aiding and abetting civil disorder in violation of Title 18, United States Code, Section 371 (which prohibits conspiracy) and Title 18, United States Code, Section 231(a)(3) (which prohibits obstructing and impeding law enforcement officers incident as part of a civil disorder, defined as “any public disturbance involving acts of violence by assemblages of three or more persons, which causes an immediate danger of or results in damage or injury to the property or person of another individual”). You can read the complaint here:

Criminal Complaint in United States v. Alejandro Orellana.pdf

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In the federal system, law enforcement gets a criminal complaint by providing an affidavit supplying sworn evidence supporting probable cause to a United States Magistrate judge. Here, FBI Special Agent Rene Persaud did so by telephone on June 12, 2025. The rules permit that, though it’s more typically done on a weekend or when the affiant is in a remote place; it’s not clear why this affidavit was presented by telephone in Los Angeles on a Thursday.

Special Agent Persaud’s affidavit is in many ways a classic work of federal law enforcement braggadocio, demanding that the reader accept broad generalizations and law enforcement truisms about crime, suspected criminals, and law enforcement operations. Here, because the subject matter is the June 6, 2025 demonstrations against ICE operations in Los Angeles, the hubris is particularly stark. Let’s begin with the vagueness of the allegations about violence from protestors:

While many of the protests were peaceful, agitators within the crowd continuously engaged in violent activity -- constituting a civil disorder -- directed at private property, government buildings, and both federal and local law enforcement officers. Multiple officers and agents from the Los Angeles Police Department (“LAPD”), Los Angeles Sheriff’s Department (“LASD”), USMS, and the FBI were assaulted, at times requiring medical attention. Multiple federal buildings were also vandalized with graffiti and law enforcement vehicles were damaged by blunt objects swung by violent protestors.

Affidavits in support of federal complaints and search warrants can include hearsay, but they are supposed to include attribution. That means they’re supposed to contain sufficient information to let the Magistrate Judge evaluate the ultimate source of the hearsay and its reliability. For instance, “I read a report from Officer Smith, who said he interviewed Witness Jones, who said he saw Defendant strike the victim” is attributed. For Special Agent Persaud’s affidavit, we have only the boilerplate omnibus attribution at the start:

The facts set forth in this affidavit are based upon my participation in this investigation, my personal observations, my training and experience, my review of evidence, including investigative reports, and information obtained from various law enforcement personnel and witnesses.

So for all we know Agent Persaud got that description of the protests from President Trump or Fox News.

But that is not the most offensive part of the affidavit. Agent Persaud lays out the government’s logic for why someone distributing face shields must be part of a conspiracy to promote civil unrest. First, anyone present to receive a shield after the cops have declared an unlawful assembly is a criminal:

Based on my conversations with other law enforcement officers, when an unlawful assembly is declared, it is common for non-violent and peaceful protestors to adhere to lawful orders, not only to avoid arrest but to avoid being caught between violent agitators and law enforcement’s response to their actions. Thus, in the hours after 2:10 p.m. on June 9, 2025, it became less and less likely for non-violent, peaceful protestors to be in or around the area of downtown Los Angeles.

Agent Persaud describes the evidence that Mr. Arellana distributed face shields called “the Uvex Bionic Shield” at the protest. He specified that the people receiving them were bad, not good:

The individuals receiving and/or disseminating the face shields were dressed in a variety of clothing to include, but not limited to, black colored clothes, face masks, hooded sweatshirts covering faces, and various other clothing that made it difficult to identify them. I did not see any of these individuals carrying signs typically associated with peaceful protestors, such as signs containing anti-ICE or pro-immigrant messages. Additionally, I did not see any signs showing support for individuals who were arrested or detained, such as those seen carried by legitimate peaceful demonstrators throughout the weekend.

Next, Agent Persaud explained that the shields help “weaken the effects of less-than-lethal law enforcement devices,” and concludes that wearing a face shield suggests criminal intent:

I conducted research to determine how the “The Uvex Bionic Shield” brand face shields were marketed. On various websites, these face shields were marketed to protect “head and neck from chemical splashes and flying debris” as well as provide “anti-fog” and “excellent visibility.” Based on this description, these face shields provide the necessary protection to weaken the effects of less-than-lethal law enforcement devices commonly deployed during unlawful violent assemblies, such as pepper spray and other aerosolized gases. In other words, these face shields would be effective in aiding the obstruction, impediment, and interference with law enforcement officers’ execution of their lawful duties.
Based on my training and experience and discussion with other law enforcement officers, wearing a face shield of this type is not common amongst non-violent, peaceful protestors. Rather, this is the kind of item used by violent agitators to enable them to resist law enforcement and to engage in violence and/or vandalism during a civil disorder.

Troubled by someone thwarting their ability to gas protestors effectively, federal law enforcement served search warrants on Orellana’s home and truck on June 11, 2025. They found a notebook that with anti-police rhetoric:

I know from my training and experience that 1312 is a common code for the phrase “all cops are bastards,” a common anti-police political slogan. 187 is a common slang term for murder, based on California Penal Code 187.

They found a slingshot, which Agent Persaud explained he has heard “historically during other periods of civil unrest” have been used against police. They found spray paint, plastic goggles, and “multiple fabric and N95 face masks,” and offered a picture of what they found:

That’s it. Based on that, the U.S. Attorney’s Office charged Alejandro Orellana with two federal felonies, and will doubtless indict him on the charges any day now. They also demanded that he be detained pre-trial on the grounds that no combination of conditions could protect the community from the danger of someone distributing face masks or assure that he would appear for trial:

Alejandro Orellano Detention Request.pdf

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The government later withdrew that demand and Magistrate Judge Charles Eick — to his credit — released Orellana on a $5,000 signature bond signed by a relative — meaning nobody had to post any money, just promise to pay if he doesn’t appear.

The affidavit, and the prosecution, are worthy of our contempt. They rest on the premise that the government’s conclusory descriptions of protests as violent are reliable. That’s manifestly not true; the government is complicit in widespread lies about the protests, including by the cynical and dishonest Attorney General of the United States. The prosecution and affidavit rely on the government’s laughable assertion that you can believe its characterization of which protestors are legitimate and which are criminals even as they eagerly implement the policy of a president who openly thirsted to shoot protestors to show strength. The prosecution and affidavit rely on the government’s assertion that anyone wanting to protect themselves from law enforcement’s “less lethal” crowd control measures is a criminal seeking to do violence. This is manifestly and offensively a lie; less-lethal measures are routinely abused to target and hurt protestors and journalists. In their swollen hypocrisy, they call masks self-evidently criminal as they send masked and unidentified ICE agents to sweep up men, women, and children in the street and disappear them.

The agents, prosecutors, and judges who participate in this are making a choice. The choice is to lie about what is happening around them and what they are doing. The choice is to prop up the administration’s narrative: the demonization of immigrants, the criminalization of protests, the normalization of government violence, the delegitimization of dissent. The choice is to present what the administration claims as self-evidently true and lawful even as the administration openly defies the law and gleefully lies to courts. They should be judged on that choice, by each of us, and by history. We should stop treating them as legitimate. We should stop believing them.

I struggled to identify why this affidavit seemed familiar, how it reminded me of something. It struck me that this was most reminiscent of my Catholic upbringing. The familiar forms and stock phrases of the affidavit are the liturgy, the unquestioned affidavit and resulting judicial imprimatur the call and response of the priest and congregation. It relies upon unquestionable authority. Only a cad, a heretic, an outsider, would interrupt or question it.

Be a heretic about what the government is telling you. They’re lying.

The Fourth Of July, Rethought

Ken White — Fri, 04 Jul 2025 15:21:33 +0000

For years, I have retold the story reprinted below every Fourth of July. It describes a formative experience in my life and in my identity as an American. I still feel powerfully many of its sentiments: my fondness and appreciation for the late Judge Lew, my admiration for the courage and fortitude of the Filipino soldiers and their families, my belief in America as a set of aspirational values worth pursuing.

But things change. The brave and patient men who were naturalized that day are dead. Judge Lew passed away several years ago. And every day of 2025 is a reminder that no set of values is guaranteed to endure: that the America those men believed in is no promise, but a hope.

Every day of 2025 I am reminded that many of my fellow citizens do not share my view of America. The America I love is not a stretch of soil or a place where the people of my blood lived and died. It’s a set of impudent and improbable goals: the rule of law and equality before it, liberty, freedom of speech and conscience, decency. We have always fallen short of them and always will, but we wrote them down and decided to dedicate ourselves to pursuing them. That’s worth something.

The people I despise, and who despise me, believe America’s values and goals are blood, soil, swagger, and an insipid and arrogant conformity. They are the values of bullies and their sycophants. They may prevail. There’s no promise they will not.

Yet I am still moved to tell this Fourth of July story. It’s become an act of defiance, because the story is contrary to the prevailing values of 2025. I still believe that those Filipinos coming to America and becoming Americans is something to celebrate, in the face of a surge of cruel and ignorant nativism. I still believe that being good American requires recognizing our wrongs and fixing them, in the face of a surge of banal America-is-never-wrong propaganda and censorship. I still believe we can do better. I am just more acutely aware that doing better will not be easy and may not be peaceful, and that doing it will require fighting people just as dedicated to low and ugly values, and that we may lose.

But the story also reminds me I am not entitled to wallow. I am fortunate. I have autonomy, power, a voice. America’s history is the story of people — like those Filipino-Americans — who had much less and faced far more daunting circumstances and kept fighting. It would be shameful to give up that fight. The bullies may win, but they will not win by default, and they will not win without a bloody battle.

THE FOURTH OF JULY

Nearly thirty-five ago, in the hot summer of 1992, I was working as an extern for Judge Ronald S.W. Lew, a federal judge in Los Angeles. One day in early July he abruptly walked into my office and said without preamble "Get your coat."

Somewhat concerned that I was about to be shown the door, I grabbed my blazer and followed him out of chambers into the hallway. I saw he had already assembled his two law clerks and his other summer extern there. Exchanging puzzled glances, we followed him into the art-deco judge's elevator of the old Spring Street Courthouse, then into the cavernous judicial parking garage. He piled us into his spotless Cadillac and drove out of the garage without another word.

Within ten awkward, quiet minutes we arrived at one of the largest VFW posts in Los Angeles. Great throngs of people, dressed in Sunday best, were filing into the building. It was clear that they were families — babes in arms, small children running about, young and middle-aged parents. And in each family group there was a man — an elderly man, dressed in a military uniform, many stooped with age but all with the bearing of men who belonged in that VFW hall. They were all, I would learn later, Filipinos. Their children and grandchildren were Filipino-American; they were not. Yet.

Judge Lew — the first Chinese-American district court judge in the continental United States — grabbed his robe from the trunk and walked briskly into the VFW hall with his externs and clerks trailing behind him. We paused in the foyer and he introduced us to some of the VFW officers, who greeted him warmly. He donned his robe and peered through a window in a door to see hundreds of people sitting in the main hall, talking excitedly, the children waving small American flags and streamers about. One of the VFW officers whispered in his ear, and he nodded and said "I'll see them first." The clerks and my fellow extern were chatting to some immigration officials, and so he beckoned me. I followed him through a doorway to a small anteroom.

There, in a dark and baroquely decorated room, we found eight elderly men. These were too infirm to stand. Three were on stretchers, several were in wheelchairs, two had oxygen tanks. One had no right arm. A few relatives, beaming, stood near each one. One by one, Judge Lew administered the naturalization oath to them — closely, sometimes touching their hands, speaking loudly so they could hear him, like a priest administering extreme unction. They smiled, grasped his hand, spoke the oath as loudly as they could with evident pride. Some wept. I may have as well.

One said, not with anger but with the tone of a dream finally realized, "We've waited so long for this."

And oh, how they had waited. These men, born Filipinos, answered America's call in World War II and fought for us. President Franklin D. Roosevelt asked the men of the Philippines to fight, promising them United States citizenship and veterans benefits in return. 200,000 fought. Tens of thousands died. They weathered the brutal conditions under Japanese occupation, fought a valiant guerrilla war, and in some cases survived the Bataan death march.

In 1946, Congress reneged on FDR's promise. Filipino solders who fought for us and their families were not given their promised citizenship, let alone benefits. Many came here anyway, had children who were born U.S. citizens, and some even became citizens through the process available to any immigrant. But many others, remembering the promise, asked that it be kept. And they waited.

They waited 54 years, until after most of them were dead. It was not until 1990 that Congress finally addressed this particular stain on our honor and granted them citizenship. (Their promised benefits were not even brought to a vote until 2008, when most of the happy men I saw that day were dead.) Hence this July naturalization ceremony.

After Judge Lew naturalized the veterans who were too infirm to stand in the main ceremony, he quickly took the stage in the main room. A frantic, joyous hush descended, and the dozens of veterans stood up and took the oath. Many wept. I kept getting something in my goddam eye. And when Judge Lew declared them citizens, the families whooped and hugged their fathers and grandfathers and the children waved the little flags like maniacs.

I had the opportunity to congratulate a number of families and hear them greet Judge Lew. I heard expressions of great satisfaction. I heard more comments about how long they had waited. But I did not hear bitterness on this day. These men and their children had good cause to be bitter, and perhaps on other days they indulged in it. On this day they were proud to be Americans at last.

Without forgetting the wrongs that had been done to them, they believed in an America that was more of the sum of its wrongs. Without forgetting 54 years of injustice, they believed in an America that had the potential to transcend its injustices. I don't know if these men forgave the Congress that betrayed them and dishonored their service in 1946, or the subsequent Congresses and administrations too weak or indifferent to remedy that wrong. I don't think that I could expect them to do so. But whether or not they forgave the sins of America, they loved the sinner, and were obviously enormously proud to become her citizens.

I am grateful to Judge Lew for taking me to that ceremony, and count myself privileged to have seen it. I think about it every Fourth of July, and more often than that. It reminds me that people have experienced far greater injustice than I ever will at this country's hands, and yet are proud of it and determined to be part of it. They are moved by what Lincoln called the better angels of our nature to believe in the shared idea of what America should be without abandoning the struggle to right its wrongs. I want to be one of them.

Some Other America, One I Do Not Know

Ken White — Mon, 09 Dec 2024 23:19:21 +0000

Some people are very upset about the public reaction to the assassination of UnitedHealthcare CEO Brian Thompson. The killing has generated horror, but also mocking memes, a wave of hostility towards the healthcare industry, and rhetoric that stops barely short of calling the murder justified.

The Washington Post calls it a “sickness,” saying “those who excuse or celebrate Mr. Thompson’s killing reveal an ends-justify-the-means sentiment that is flatly inconsistent with stable democracy” and that “most Americans probably reject this kind of thinking.” The Yale School of Management calls it “very un-American.” My friend David French says that online “activism is attracting some of the most cruel and self-righteous people in America. There’s a remarkable lack of grace and compassion.”

With the greatest respect to these worthies — well, at least to David — I am not familiar with the America they’re talking about.

America is largely aspirational. We talk big and then, more or less, sometimes strive towards goals like justice, equality, decency. Many people are willing to put their shoulder to the wheel of those aspirations even in the face of the many ways America falls short. I’ve written about a formative experience I had as a young lawyer: attending a naturalization ceremony for Filipino World War II veterans who still exulted to become Americans even after America had betrayed them for decades. Those men still believed in the promise of America despite so many years of broken promises. Many of our greatest citizens have worked to better this country even as it has treated them as less than full Americans or even less than human.

But hope should not be blindness. We can hope that America will be kinder, more graceful, more compassionate, more sincerely devoted to all people being created equal and entitled to life, liberty, and the pursuit of happiness. But the truth is that celebrating the death of other human beings because we hate them or what we think they stand for is absolutely American. To ignore that is fantasy, not aspiration. America remains the country that proclaimed that all men are equal while enshrining slavery, that enacted the First Amendment and the Alien and Sedition Acts in the same decade.

Let’s start hard, not soft. America is a country where lynching was a family pastime:

America is a country where we’re not squeamish about killing people. Americans have always made killers into folk heroes, from the outlaws of the American West to the bank robbers of the Great Depression. Sometimes it’s about recognizing them as icons of independence and self-determination. But just as often it’s about killing who needs to be killed — killing people we don’t recognize as human. The Battle Hymn of Lt. Calley sold a million records celebrating the murderousness of a war criminal; only 11% of Americans approved of holding him accountable for his crimes. Half a century later more than 40% approved of pardoning more modern war criminals. Our heroes have included Jesse James and John Dillinger, but also Kyle Rittenhouse and Daniel Penny. Americans don’t only celebrate killers; they hate and revile anyone who objects:

America is a place where two citizens beat a homeless man with a metal pipe because “all these illegals need to be deported” in the name of soon-to-be-president Donald Trump. The homeless man had, in fact, been a lawful resident for ten years. Trump’s first response was to say “the people that are following me are very passionate. They love this country, they want the country to be great again.” That was not seen as insulting to his followers; it was rather qualifying. Nine years later Trump presided over a convention where Americans joyously waved signs that said “mass deportation now,” and traded entirely invented stories about immigrants eating pets.

America is also a place where Trump’s opponent, Kamala Harris, embraced the support of former GOP Representative Liz Cheney, who decried Trump as violating American values. You might have remembered Liz Cheney from a decade earlier when she referred to Justice Department lawyers as the “al-Qaddafi seven” because they had provided advocacy or representation for Guantanamo Bay detainees, asking that they be granted some sort of rights or process. “What values do they share?” Cheney asked. The value of due process pales before the value of hating the other.

America is the place where people will drive 200 miles to urinate on a plaque commemorating a camp where we interned American citizens based on their ethnicity — not to protest the internment, but to protest its recognition.

America is a place that indulged in mob violence against religious minorities for not being sufficiently patriotic during a war to save freedom.

America isn’t the worst place ever. Humans treat each other inhumanely all the time and always have. But Americans like to see themselves as somehow above condoning violence and we’re absolutely not. Violence against people we’ve decided to hate doesn’t break norms. It is the norm.

The killing of Brian Thompson was the act of an apparent madman whose confused ideology defies social media ambitions to make him some kind of hero. In my view much of the celebration of the killing is self-indulgence. I doubt it accomplishes anything. But treating it as an aberration is self-delusion. It’s as American as cherry pie.

Why is it important to say so? Because the delusion “we’re better than this” stops us from trying to do better. Pretending that cheering Brian Thompson’s death is un-American is giving ourselves permission to ignore the many ways it’s not.

I would like to live in an America where it’s un-American and unprecedented to celebrate the killing of someone from a reviled group. But that’s some other America, not mine. It sounds like a nice place to visit.

Life At The Bottom Of The Slippery Slope

Ken White — Tue, 26 Nov 2024 18:13:03 +0000

Back in 2017 I joined a live debate hosted by Radiolab’s More Perfect, sort of arguing with Elie Mystal about whether America should have hate speech laws. I say “sort of” because Elie and I have had this discussion several times and I don’t believe he’s sincerely in favor of America (at least as it now exists) having broader hate speech laws. He’s an ardent critic of the system’s brutality and racism, and lacks the dissociative knack of wanting to give that same system more power expecting it to do good things.

My dad watched online. Afterwards he said “you were good but Elie is a showman and he would have won that debate if Trump weren’t president.” And that’s why I’m like this. What dad meant, of course, is that in 2017 the Trump presidency made it much easier to imagine a government that would abuse any power we gave it to punish speech. As soon as Trump left office, most people forgot feeling that way. You know they forgot because we were treated to a flood of proposed we-can-trust-the-government solutions to problems like disinformation and hate speech and political violence and extremism. Get the FCC to use its power punish misinformation! (Don’t ask exactly how, that makes them mad.). Revoke licenses and rights to broadcast! Adopt European-style hate speech laws! Charge people with incitement and threats! Do something!

These are all old familiar arguments, and First Amendment advocates¹ have old familiar responses. It’s as rote and comforting as the priest’s call and the congregation’s response in the Catholic masses of my youth. The Lord be with you! And also with you. Why not use government force to stop this bad speech? Because government force will be used by the worst people you know to do bad things. And so on. This usually leads to frustration. People who hope the government can make things better think First Amendment advocates are stubborn “absolutists”² who don’t see the danger of extremism and disinformation and are indulging in a slippery slope fallacy. First Amendment advocates think the more-laws crowd is deliberately ignorant of American history, blind to how First Amendment exceptions are disproportionately used against the powerless, and foolishly indifferent to the probability of abuse.

But the second Trump administration may represent America sprawled at the bottom of a slippery slope. That’s no fallacy. Trump has control of the presidency, and Republicans have control of Congress and the Supreme Court. Trump’s team has announced an aggressive agenda to do exactly what his critics called for: use the power of government to attach expression they think is false, misleading, disloyal, or otherwise bad. The Trumpists want the FCC to assert more power over cable and the internet and use that power to punish enemies. They want the government to use its power to attack journalists they hate. They want to protect protestors they agree with, however violent they were, but use state force and authority and deportation to suppress protests they don’t agree with. The Trumpists have a long record of abuse of defamation lawsuits and are aligned with Federalist Society luminaries who want to make it easier for the rich and powerful to sue for defamation. Trumpists want to impose ideological requirement for vast numbers of civil servants and to investigate government employees for disloyalty. In short, they want to flex government power to punish speech they don’t like.

The best case scenario is that most of this is just bluster. Trump blustered a lot in the 2016 election. Perhaps because he didn’t mean it, perhaps because he was distractible, perhaps because he had not yet corrupted enough courts, or perhaps because he was served by a squabbling mob of idiots, he didn’t succeed in punishing all the speech he threatened to punish during his first term. Will this term be different? We live in hope.

But if he means it this time — or if his team feels sufficiently empowered by their win and their Congressional and Supreme Court majority — we could see the sort of sustained, aggressive government attack on dissent that we haven’t seen since the Red Scare. Executive institutions may slow it down but may not thwart it. Judges may or may not impede it. Many Americans may simply surrender, abandoning their expressive rights in the face of the threat. Private actors, emboldened, may escalate violence and abusive litigation. Norms and traditions and values, we’ve seen, can fail.

In short, we may see what happens when the government abandons any pretense to viewpoint neutrality, exercises its maximum power to punish speech it doesn’t like, and punishes expression as false, disloyal, treasonous, inciting, and propagandizing. The First Amendment advocates’ parade of horribles will shudder to vivid life. “I told you so” will be cold comfort. It won’t last forever, but it will be ugly.

Will we learn a lesson from that, when we emerge on the other side? I don’t think it’s in our nature to do so. “The government should protect speech I like and punish speech I don’t like” is too instinctive, too fundamental. I struggle with the atavistic urge to suppress ideas I hate as much as anyone. We’ll remember how the power can be abused for a while, and perhaps enact some legal reforms to protect speech, but within another presidential administration or two we’ll be back to complaining that the government isn’t doing enough to punish bad speech.

Already you hear people saying “what good is the First Amendment if it allowed Trumpism to triumph?” That’s the problem with rights. Nobody promised you they would deliver the results you wanted. Nobody said that rights would ensure the good guys win. An approach that maximizes rights just gives you the best shot, combined with the most respect for human dignity and autonomy. Stay tuned to watch the alternative.

1 I say “First Amendment advocates” to distinguish from “free speech advocates,” who are increasingly preoccupied with having social comfort and moral support to say things rather than the protected legal right to say things, even when those protected legal rights are at risk.

2 A “First Amendment absolutist” is someone who thinks that when the First Amendment says “Congress shall make no law” it means no law — that the First Amendment has no exceptions and permits no restrictions on speech. The last prominent thinker regarded as an “absolutist” was probably Hugo Black and even he wasn’t really absolutist. However, in modern debates about the First Amendment, “absolutist” is used to mean “your description of current First Amendment law may be right but I don’t like the outcome in this case.”

This Week On Serious Trouble

Ken White — Fri, 22 Nov 2024 18:11:17 +0000

This week on Serious Trouble, Josh and I painstakingly recorded a thorough discussion of the prospects of Matt Gaetz as Attorney General, only to have him withdraw from consideration twenty minutes after we stopped recording. So we re-recorded. Sara was the grumpiest about it. Other topics this week: Hegseth’s past investigation and what it means, Rudy Giuliani’s ongoing collections antics and the problem of how to use fines to coerce someone with a negative $150M net worth, Donald Trump files an anti-SLAPP motion in the Central Park Five case against him, and assorted miscreants.

An Anti-SLAPP Victory

Ken White — Wed, 20 Nov 2024 17:44:59 +0000

I write about my own cases and clients only rarely. Publicity is often not in my clients’ best interests and this isn’t a platform to promote my professional work. My firm has nothing to do with my online activities.

But sometimes one of my cases is such an important illustration of the First Amendment issues that I write about that describing it seems imperative. This is such a case. It involves the most purely evil and abusive SLAPP suit I have ever seen. We just won it for the client on appeal. The question presented was this: if you are charged with killing two people in a car crash, can you sue the family members of the dead victims for defamation when they write letters about the alleged crime based explicitly upon the criminal complaint and news coverage?

King Vanga’s Despicable Lawsuit

You can read the Court of Appeal decision here:

King Vanga v. Priscilla Juarez Opinion.pdf

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The Plaintiff is King Vanga, who at the time relevant here was a student at Stanford University, my alma mater. On June 25, 2021, he was involved in a car crash that resulted in the deaths of Jose and Pamela Juarez. They were survived by six children and fifteen grandchildren. The Merced County District Attorney’s Office filed a criminal complaint against Mr. Vanga for charges including gross vehicular manslaughter while intoxicated, resisting an officer, and battery on a police officer. Several local news outlets reported on the accident.

Exhibit 6. Criminal Complaint.pdf

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Some of Jose and Pamela Juarez’ relatives — including our client, their daughter-in-law Priscilla Juarez — wrote letters to Stanford University. They discussed information they’d learned from the criminal compliant, conversations with law enforcement officers, and news stories, and suggested that the university should take action against Vanga. As far as I can tell Stanford never took any action.

Subsequently, Vanga threatened to sue law enforcement officers, claiming that they had violated his civil rights in arresting him. He also revealed that the prosecution’s blood tests showed that he was not under the influence of alcohol as accused and as reported in the news, and claimed the officers lied about it. Vanga later made a request to Stanford under the Family Education Rights and Privacy Act and obtained copies of the Juarez family’s letters to Stanford.

Vanga then sued the family members who sent letters to Stanford, including our client Priscilla Juarez. That is to say, he sued the family of the people killed in the accident for writing letters talking about the criminal charges brought against him as a result of the accident. He claimed Priscilla Juarez defamed him by saying that he “has violated and tainted Stanford’s Code of Conduct values, to the most extreme measure,” by using the term “murder” to describe what he did to her in-laws, for repeating things that law enforcement officers reported about Vanga’s conduct during his arrest, and for asserting he had committed a crime and should be held responsible.

First Amended Complaint (FILED 9.15.23).pdf

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After suing these family members, Vanga’s lawyers attempted to use the lawsuit to stop them from posting on social media about Vanga and encouraging Vanga’s prosecution. That may not meet the definition of either criminal or civil extortion, but in my view it is morally extortionate and contemptible. Vanga’s attorney made the following offer to our client:

Mr. Vanga will not pursue a lawsuit against your for defamation if you agree to the following terms:

Mr. Vanga will not pursue a lawsuit against your for defamation if you agree to the following terms:
1. You agree to identify all written statements that you have made that refer to Mr. Vanga (whether you published those statements under your name or anonymously);
2. You agree to remove any online statements that you have published that refer to Mr. Vanga;
3. You agree not to make or publish any disparaging statements about Mr. Vanga in the future, subject to certain required public policy exceptions;
4. You agree not to encourage, assist, or advise others to make or publish disparaging statements about Mr. Vanga in the future, subject to certain required public policy exceptions;
5. You agree not to encourage the criminal prosecution of Mr. Vanga, including by communicating with government officers or protesting at any conference, hearing, or trial involving Mr. Vanga, except as necessary for you to provide evidence, to provide testimony, to assist with a government investigation, or subject to other required public policy exceptions.

Priscilla Juarez is a stay-at-home mom. Like the vast majority of Americans, she can’t afford to hire lawyers and pay the costs of defending herself on a bogus defamation claim. Defending such a case would cost many tens of thousands of dollars. But she wasn’t going to stop fighting for her in-laws and supporting her husband, their son. So she said no. We agreed to represent her pro bono, meaning we’d only get paid if we won the anti-SLAPP.

Assisted by my exceptionally talented associate Nick Ramirez, I filed an anti-SLAPP motion. Our main argument was that Priscilla Juarez’ letter to Stanford was a statement of opinion based on disclosed facts — namely the criminal complaint and news coverage. We also argued that Vanga had not established how he was damaged by the letter because it was sent only to Stanford, and Stanford took no action. The trial court denied the motion, asserting that some of the statements could be taken as assertions of fact, and therefore could possibly be defamatory.

The Court of Appeal Win

On November 19th, 2024, the California Court of Appeal reversed in one of the most strongly-worded anti-SLAPP appellate rulings I’ve seen, linked above. The Court noted that Priscilla Juarez’ letter expressly based her statements on the criminal complaint, statements from law enforcement officers, and press coverage that she had seen, and that she did not suggest she had some personal knowledge or undisclosed basis for the statements. The Court examined the context, concluding that Stanford was unlikely to interpret the letter as asserting facts rather than the victims’ relative’s angry reaction to events in the news. “Accordingly, considering both the language and the context of Defendant’s email, we find the assertions that Plaintiff murdered the decedents, drove while intoxicated, and violated Stanford’s Code of Conduct to be opinions based on disclosed facts. The opinions are therefore actionable only if those facts are false.” (Attached Order at 15.) Moreover, Plaintiff’s claim that the police and witnesses were wrong is irrelevant — the key is that it’s undisputed that the police and witnesses reported those things and Ms. Juarez based her opinions on those reports. The Court found that Vanga had not offered any evidence that he suffered any pain or suffering from another statement, and therefore didn’t carry his anti-SLAPP burden of showing he could prevail.

It’s easy to see why this is important. Under King Vanga’s theory — which the lower court accepted — it would be impossibly dangerous for crime victims to speak to the press — or to anybody. If a defendant in a criminal case can sue alleged victims for making statements based explicitly on police reports and on the charges against the defendant, then criminal defendants can silence their victims by threat of defamation lawsuits. In fact defendants will be able to use the threat of lawsuits to attack witnesses and disrupt their prosecution. The danger is not abstract or a slippery slope. It was directly presented here. King Vanga’s lawyers demanded that, as a price for not being sued, Priscilla Juarez not only stop talking in public about King Vanga, but not “encourage the criminal prosecution of Mr. Vanga, including by communicating with government officers or protesting at any conference, hearing, or trial involving Mr. Vanga.” I remain shocked that an attorney would do such a grotesque thing. I submit that these facts show that the lawsuit was not motivated by any actual harm suffered by Vanga, but was a naked attempt to bully a grieving family into silence through abuse of the legal system.

Next, we seek our fees. I’m grateful to my able associate Nick Ramirez, who did a great job on the trial court and appellate briefs, and to Ms. Juarez for her bravery. This is why anti-SLAPP statutes are important.

Postscript: I note that the Stanford Daily has steadfastly refused to cover this case about one of Stanford’s own students.

What Is An Anti-SLAPP, Anyway? A Lawsplainer Series

Ken White — Mon, 18 Nov 2024 21:22:15 +0000

Back in 2020 I started a lawsplainer series about anti-SLAPP statutes aimed at explaining what they are, how they work, and why they matter to a wide audience. I wrote three chapters and then Stuff Happened. Doesn’t it always?

But anti-SLAPP statutes are as important as ever and are increasingly prominent in the news. They’ve been on my mind for two reasons. First, I’ve filed an unusual number of anti-SLAPP motions this year, and just received a fantastic tentative ruling on appeal on one of them. Watch this space! Second, people — particularly powerful and rich people — are getting more litigious in response to criticism. Bogus litigation to punish dissent is common, as are overt threats by the powerful.

With that in mind, I am reviving the series. Remember the big picture: a SLAPP is a Strategic Lawsuit Against Public Participation — a bogus lawsuit to shut you up or punish you for speaking. An anti-SLAPP statute is a law — all state laws so far — that gives you special protections against a SLAPP, and an anti-SLAPP motion is a special procedural vehicle created by an anti-SLAPP statute that lets you ask the court to dismiss a SLAPP.

Here’s a reminder of what’s come before:

Chapter One defined terms like “SLAPP” and “anti-SLAPP statute” and “anti-SLAPP motion” and explained why the civil litigation process does a bad job of protecting you from abusive defamation claims without an anti-SLAPP statute.

Chapter Two explains what an anti-SLAPP statute does: how it gives a defendant a special tool, an anti-SLAPP motion, that is much more effective at defending a bogus claim designed to suppress speech.

Chapter Three explains why some anti-SLAPP statutes are very strong and effective and why other are inadequate and ineffective. This chapter tells you what to look for in a statute that will protect your free speech rights from vexatious litigation.

This time, I’m explaining how anti-SLAPP statutes work in federal court. The short answer is that they often don’t depending on where the lawsuit was filed.

Anti-SLAPP statutes are state laws, at least so far — next time watch this space for an argument about why we need a federal anti-SLAPP statute. There’s a dispute about whether, and to what extent, they apply to cases in federal court.

To understand this you have to know a little about — God save you — federal court jurisdiction. Federal courts are courts of limited jurisdiction — that means they can only hear cases as permitted by the U.S. Constitution or federal laws. The main types of federal court jurisdiction, simplified, are these:

Federal question jurisdiction: If someone sues me under RICO, a federal statute, a federal court can hear it.

Diversity jurisdiction: Federal courts can also hear cases when all of the plaintiffs are from a different state from all of the defendants, and a certain amount of money is in controversy. So if someone from, say, Florida sues me, a California resident, a federal court can hear it if they’re suing for more than $75,000, even if they are bringing a state claim and not a federal one. There are exceptions and complications, but that’s “diversity.” Diversity jurisdiction reflects an ancient concern that state courts might be prejudiced against parties from another state, and an ancient belief that federal court’s won’t be. Diversity jurisdiction ensures that parties will only face prejudice based on race, religion, wealth, and subject matter of the litigation.

Supplemental Jurisdiction: When a federal court has federal question jurisdiction over a case because it includes a federal claim, it may also consider state law claims also brought in the case. So, if our hypothetical person sues me for RICO, they can also bring state law claims for defamation and hurtfulness and what-have-you and the federal court can hear those. This is called supplemental — or sometimes ancillary or pendent — jurisdiction. There are naturally exceptions and complications, and a federal court isn’t required to hear those state claims. For instance, if the factual or legal disputes raised by the state claims overwhelm the federal claim, or if the judge dismisses the federal claim, the federal judge can say “get your broke ass back to state court with that shit, we do important things here,” in so many words.

All of this creates a question: what law applies in federal court? When does federal law apply and when does state law apply? Law nerds will talk at you about this until you bleed out the ears but the basic rule is called the Erie doctrine: in handing state claims before them, federal judges apply state substantive law and federal procedural law. So the Federal Rules of Civil Procedure govern things like “when can you file a motion to dismiss and on what grounds,” and state law governs things like “when this dude Tompkins got hit by a train and lost an arm in Pennsylvania and sued the Erie Railroad in federal court under diversity jurisdiction, Pennsylvania’s law determines whether he’s out of luck because he was trespassing when he was hit.”

I swear to God we’ll be talking about anti-SLAPPs again now.

Anyway, sometimes the difference between procedural and substantive law is clear, and sometimes it isn’t. (Let’s not even talk about the dog’s breakfast that’s the discussion of which state’s substantive law should apply.) Federal courts have disagreed whether state anti-SLAPP statutes provide merely procedural protection — basically a rule of civil procedure applicable in the courts of that state — or a substantive legal protection for free speech that should be applied. This has resulted in a split of the different Circuits of the United States Court of Appeal. Take the Fifth Circuit. Now that InfoWars is shut down, the Fifth Circuit is the most reliable place to go for an explanation of how woke college kids have destroyed America. The Fifth Circuit’s view is that state anti-SLAPP statutes do not apply in federal court because they are procedural and often contradict federal procedural rules. Some other circuits take a different approach, looking at state anti-SLAPP statutes provision by provision and applying the provisions that don’t directly conflict with the Federal Rules of Civil Procedure. That’s the rule here in the Ninth Circuit.

That’s all simplified and summarized, as I am sure commenters will tell you in detail. But the bottom line is that if you’re sued for your speech on state law claims in federal court, in some places (like California) you can take advantage of the state’s excellent anti-SLAPP statutes, and in some states (very notably Texas recently) you can’t because of this disagreement among circuits about whether and how anti-SLAPP statutes apply in federal court.

This incentivizes people bringing SLAPP suits to bring them in federal court in places like Texas. That’s exactly what Donald Trump did when he brought a case against CBS News that is widely perceived as extremely frivolous in federal court in Texas. This is related to, but distinct from, parties judge-shopping by bringing cases in federal districts that feed to a single judge perceived as favorable.

So what’s the solution? In our next chapter, I’ll discuss it: it’s time for a federal anti-SLAPP statute. Not only will that protect free speech in federal court, discourage forum-shopping, and eliminate frivolous cases, it can expand anti-SLAPP protections to cover some federal claims. We’ll talk about it soon. Like, this-year soon.

This Week In Podcasts

Ken White — Fri, 15 Nov 2024 20:24:30 +0000

This week in Popehat podcast content:

Over at Serious Trouble, Josh and I talked about how Trump’s election will impact his criminal and civil cases, debated whether the cases could have been run differently to convict Trump earlier, and laugh at Rudy Guiliani just to show you joy still exists.

I guested on What a Day with Jane Coaston, talking about how to think about the nomination of Matt Gaetz as Attorney General.

Finally, I guested on It’s Complicated with Renato Mariotti and Asha Rangappa, talking about whether it was a bad idea to prosecute Trump in the first place and the dilemma of due process helping bad people.

I also yelled stuff a lot but that wasn’t recorded.

Refuge In Kakistocracy

Ken White — Thu, 14 Nov 2024 02:14:27 +0000

H.G. Wells published War of the Worlds in 1897. He depicted humanity being saved from the malevolent and technologically superior Martians not by armed might or ingenuity or the indomitable spirit of man, but by a head cold:

A mighty space it was, with gigantic machines here and there within it, huge mounds of material and strange shelter places. And scattered about it, some in their over-turned war-machines, some in the now rigid handling-machines, and a dozen of them stark and silent and laid in a row, were the Martians — DEAD! — slain by the putrefactive disease bacteria against which their systems were unprepared, slain as the red weed was being slain; slain, after all man’s devices had failed, by the humblest things that God, in His wisdom, has put upon this earth.

It is not implausible that something useless and annoying, generally an impediment to humanity, could save us. I speak, of course, of human frailty.

Are we not routinely saved from disaster by our most petty and regrettable human qualities, which seem to serve no purpose? How would World War II have turned out if Hitler were not a monomaniac who invaded Russia? Would the Germans have been able to plunge far into the Russian heartland — thus tying up vast quantities of men and materiel on the Eastern Front — if Stalin hadn’t been an egotist refusing to believe that Hitler would betray him? Would Nixon have fallen if he were not paranoid and resentful? Are not Bond villains routinely thwarted by their tendency to boast about their sinister schemes? Am I not routinely distracted from picking stupid online fights by sloth, gluttony, and occasionally lust?

So: in a month with few bright spots, here is a glimmer of hope: Team Trump’s most human failings may thwart some of their most evil plans.

Take, for instance, appointing Representative Matt Gaetz to be the Attorney General of the United States. If this is a sincere appointment — in other words, if it isn’t a head-fake to get the Senate to accept another candidate later, or a ruse to let Gaetz resign from Congress and avoid a damaging ethics report¹ — it’s an example of self-indulgence thwarting malign intent. Gaetz is a buffoon. He has absolutely no qualifications to run the Department of Justice. Can he wander around firing everyone? Yes. Does he understand how the Department of Justice works in a way that would allow him to maximize its potential for abuse? No. Is he smart enough to figure it out? Also no. Is he charismatic enough to persuade insiders to help him use it effectively? Very much no. Gaetz as Attorney General will do petty, flamboyant, stupid things in clumsy ways. Some of those things will be very bad. But clown shoes are preferable to jackboots. We’d be in much more trouble if someone evil in a smart and competent way who understands how the machine works — say, Jeff Clark or Ken Paxton — took over. That would be terrifying.

Trump’s decision shows his tendency to vent his spleen. Appointing Gaetz owns the libs, humiliates the hated Justice Department, elevates someone who is a vulgar elbow-thrower like him, and is a thumb in the eye to the Republicans who hate Gaetz. It’s not a decision reflecting self-control; it’s a decision reflecting unconstrained anger and resentment. It’s like making your horse a Senator. The point isn’t that the horse will vote the way you want it to. The point is to humiliate the senate and show them you can do what you want. It’s bad, but it’s not smart bad.

Many of Trump’s appointments so far seem to be made out of frailty and not out of calculation. Kristi Noem at Homeland Security is a lightweight whose dubious competence will interfere with plans to genocide immigrants. Pete Hegseth’s chief qualification to be Secretary of Defense is that Trump saw him on the teevee a lot and his tattoos are not, technically, Nazi symbols. Mike Huckabee is a wholly owned trademark of Jack Chick Enterprises Inc. All of these people are ostentatiously evil and shame the institutions they will lead and are a disgrace to the Republic and so forth but do they have the skills or patience to achieve their weird goals? Institutions are very difficult to change. The populist sentiment “send in an outsider and have them clean house” requires an outsider smart and disciplined enough to overcome the fact they don’t understand what they’re changing. Otherwise the inside stubbornly and passive-aggressively thwarts the outsider. You can burn the institution to the ground but that doesn’t leave you with an institution you can use effectively as a weapon.

Trump’s choice of all of these people reflects his resentments and pathologies and insecurities and those of his closest advisors. Plus these nominees all have their own issues. Do you think Matt Gaetz is going to work the hours necessary to not just learn DoJ but run it in detail? All of the interns are college graduates. Does Kristi Noem strike you as someone who handles stress well? Does war crimes enthusiast Pete Hegseth have the people skills to manage the viper’s nest that’s the Pentagon?

Trump’s laziness, poor attention span, tendency to be distracted by petty grievances and threats to his ego, and total lack of loyalty to anyone will be impediments to his agenda. The people he picks tend to be a grab bag of personality disorders who squabble and fight for power, he tends to screw them over when they annoy him, and they’re all quite annoying.

I’m not saying that things won’t be bad. As I’ve said recently, I expect things to be very bad for a long time, possibly a generation, as a result of America’s choice. What I am saying is that perhaps they will not be as bad as they could be because God, in His wisdom, has chosen to make these people weird freaks along the way to letting them run the place. This is a time to cherish every hope and embrace every ally. Trump and Trumpists are dysfunctional weirdos and that fact is our ally. Cold comfort is still comfort.

1 It’s certainly possible this was a gambit to allow Gaetz to resign from Congress and avoid a bad ethics report from being released. That seems out of character for Trump, though. He’s neither loyal nor helpful.

What’s Going To Happen Here At The Hat?

Ken White — Tue, 12 Nov 2024 01:13:38 +0000

So, I’ve decided to start writing regularly again, like the old days. My goal is two significant posts a week, plus some small stuff (links to new Serious Trouble episodes, republished old posts from the original Popehat, etc.).

I have a to-do list:

Write two substantial posts a week. Those will be here and sent to subscribers by email.
Fix the links in the posts I imported here from Substack.
Delete the Substack version of Popehat Report.
Start importing old posts from the original Popehat site, including ones from my late and much missed co-writer Patrick. Happily accepting suggestions.
Re-write and modernize some of the old posts from the old Popehat site — for instance, the classic “So You’ve Been Threatened With A Defamation Suit,” the screed about “Fire in a Crowded Theater,” and the analysis of censorship tropes.
Figure out better how Beehiiv works. I need to figure out formatting, how to monitor incoming traffic (where do I go to see incoming links), other features that might improve the reading and commenting experience, etc.
Complete some of the series of posts I started, like the deep dive into anti-SLAPP statutes.

To spare people’s inboxes I’m not going to email anything but the two new posts per week. If there’s a way to provide a voluntary feed of some kind I will.

I’m hoping to engage more with the audience. With that in mind:

What subjects would you like to see me address?

What classic Popehat posts would you like to see resurrected?

What features would you like to see?

If you enjoy the writing, you can help by sharing it on social media and elsewhere.

I may eventually create a paid subscription, but only after I’ve established a good habit of regular posts, and there will always be free content.

God, Bless America?

Ken White — Sun, 10 Nov 2024 18:58:53 +0000

Recently I’ve been dwelling more on the relationship between religion and politics.

One reason is tumult in the town next door, the town where my father grew up and where I grew up and where two of my kids went to school and where I’ve gone to church for 25 years. I’m fond of the place. It’s overwhelmingly white and, for the last two generations, Asian-American. You might get pulled over there if you’re not. It’s adjacent to a notorious sundown town that was popular with American Bundists, and its schools started as a white flight haven, but it’s quiet and has broad leafy avenues and craftsman or Spanish houses set back from the street. Sometimes people ride horses off of the horse trails past the Round Table Pizza, which incidentally is a sore spot on the neighborhood Facebook groups because a lady who may be homeless was seen hanging out there.

The oldest church in town was started in the late 19th Century as a Congregational community. Its sanctuary was built in the 1920s and has stunning stained-glass windows. Earlier this century it reclaimed its Congregational name and identity, and a young and energetic pastor has taken over. Under his leadership the church has articulated values to the town through children’s activities and movies in the park and speaker series in the church and outreach and participation. The values they have articulated are Christ’s love for everyone, tolerance, inclusion, compassion, and concern for the mortal and material fortunes of least of us. You know — woke stuff. It’s very nice and I’ve gone to a number of speaker series there but I will likely stick with my nearby Presbyterian church. It’s a little too informal for my taste. You can take the boy out of the Jesuitism but you can’t take the Jesuitism out of the boy.

The pastor and members of the church have felt free to articulate the church’s values in the town’s political and social circles, on social media and in letters to the community and before the tiny City Council. Most people in the town approve or are at least tolerant. But this unapologetic articulation of values — particularly toleration of the LGBT community — is abhorrent to a few. It has brought out the worst intolerance from, forgive me God, the worst people. Some of them are frankly unhinged about it. Religious people! Articulating their values in the public sphere! In MY America? They view the church as Babylon and the pastor as the child of Che Guevara and a knife-wielding drag-bruncher. They attack the church and its pastor, distribute anti-gay and anti-trans literature at the church, bray about how they don’t belong here and their participation in public discourse should not be tolerated.

As one born there I am embarrassed by their intolerance and more than a little concerned by their spittle-flecked fervor. But on some level I’m sympathetic to not liking religion in politics. (The same people absolutely favor imposing their religion forcibly through politics, and are currently trying to do so by corrupting the school district, but consistency is the hobgoblin and so forth.) I grew up Catholic, and have attended a Presbyterian church most of my adult life, but I’ve always been deeply ambivalent about the role of religion in American politics. Political invocations of religion here are characterized by arrogance.

When it comes to politicians invoking God, Abraham Lincoln is my favorite. His references show a common thread of humility before God. Consider the closing of his Second Inaugural Address:

With malice toward none with charity for all with firmness in the right as God gives us to see the right let us strive on to finish the work we are in to bind up the nation's wounds, to care for him who shall have borne the battle and for his widow and his orphan ~ to do all which may achieve and cherish a just and lasting peace among ourselves and with all nations.

Lincoln notes explicitly that we ought to be cautious about whether we know what’s right — whether we know God’s will. Similarly, at Gettysburg:

We are met on a great battle-field of that war. We have come to dedicate a portion of that field, as a final resting place for those who here gave their lives that that nation might live. It is altogether fitting and proper that we should do this.
But, in a larger sense, we can not dedicate -- we can not consecrate -- we can not hallow -- this ground. The brave men, living and dead, who struggled here, have consecrated it, far above our poor power to add or detract.

Our political invocation of God is mere air, Lincoln points out. It does not match people’s sacrifices. Lincoln’s religious humility may be a result of his religious uncertainty; his biographers have written volumes about it.

Modern political invocations of God are mere hubris in comparison. “God bless America” is almost mandatory in a speech by any Presidential candidate. Its absence is notable. Sometimes it is rendered as “may God bless America,” which I prefer, but too often it is rendered as GOD BLESS AMERICA. If we said it in Latin it would be in the imperative. It’s a command - God, bless America, and another Dewars while You’re up. God, it suggests, You must give us our due. Give us what we are owed. Or else it’s rendered as a boast — a way to say “God, naturally, blesses America.” And so He does, though perhaps His blessings fall more visibly upon some of us than others. It’s rendered in a tone that implies division — here we are, together, the ones preferred by God.

It certainly could be rendered more humbly. God, we spent half a billion on pet Halloween costumes and then walked the pets past mentally ill veterans sleeping on the sidewalk but if You could refrain from smiting us and bless us instead we would be quite grateful. God, rather that visit people in prison like You said we thought we’d cage more of them than anyone else and abuse them and then ridicule people for talking about the abuse, but still, if You could bless us, that would be just swell. God, whoah, okay, that’s a lot of dead kids, but still, You know, etc. God, I know that we were strangers in the land of Egypt but these strangers are vermin poisoning our blood, so, i can haz blessings plz k thx.

I would feel more comfortable listening to those invocations of God — ones characterized by humility before God, by uncertainty, by confession of our failings. I feel they would have landed more easily on the ears of my late father, an agnostic who felt despised by American political rhetoric. I would feel less threatened — feel more that the words echoed the Sermon on the Mount or Matthew 25 and less a triumphal and somewhat spiteful someday every knee shall bow, less a way to say someday we shall prevail over them.

But that’s not what I’m going to get, at least in mainstream American politics. The Jerry Bruckheimer version of “God Bless America” will continue to prevail for now. I am unlikely to make an impact on that on a national level.

But perhaps I can locally. Perhaps you can as well, if you care.

I still love the town, warts and all. There is the place where I drank three Cokes after soccer practice and threw up! There’s where mom ran her bike into a mailbox on the way to the Thai place! There’s where I kissed a girl the first time! It’s changed. When I was a kid the notion that a classmate could be openly gay was absolutely unthinkable. Boys played rough games of “smear the queer” at recess and the message was received. My classmates who weren’t like me often lived quiet lives of misery. Now it’s better. My youngest is finishing her senior year at the school where I graduated and the kids could absolutely not give a shit if their classmates are gay or lesbian or bi or trans or anything. I hear them talk and marvel at it. They have each other’s backs. I wish I had been brave enough to have my classmates’ back the same way in 1986.

I won’t change how Americans talk to or about God. But I might help change it in this town, just a little. I might help more young people that a church can be characterized by acceptance and values that appeal to them. And I might convey to the worst people in town that if they want to go after a church for preaching tolerance and decency, they’ll have to go through me.

And Yet It Moves

Ken White — Wed, 06 Nov 2024 20:13:13 +0000

During COVID, I walked a lot. As a consequence, I started listening to more podcasts. Since then the walking has dropped off dramatically, as my wife would tell you. The habit of listening to history podcasts has stuck. I’ve been binge-listening to two of my favorites recently, The Rest is History and Fall of Civilizations, and I couldn’t help but notice that for most of history everything usually sucked.

Wars! Banditry! Plagues! Famine! Nothing resembling justice! Oppression! Frequent cruelty and death! Brutality as the unquestioned norm! Great civilizations collapsing from without and within! Unfairness! History is fascinating but as a lifestyle it had very little to recommend it until quite recently. Things have only gotten better in fits and starts for a tiny slice of the time we’ve been recognizably human. It got a little better with the Renaissance, a little better with the Enlightenment, and in many ways somewhat better over the last century. Many things still suck, but there are fewer of them, and they suck a little less.

Modernity has spoiled us in thinking things won’t get dramatically and catastrophically worse, worse in a way that will last for generations. But things have gotten abruptly much worse before, and they can again. And yet people must persevere, even if their children and grandchildren who will see the benefits and not them.

Trump won yesterday, as I feared he would. I firmly believe America — and likely the world — will get significantly worse for at least a generation, probably more. I’ll spare you, for now, the why. Frankly, I think you either already accept it or will never accept it. The things I care about, like the rule of law and equality before it, freedom of religion, freedom of speech, free trade in service of free people, relative prosperity, protection of the weak from the strong, truth, and human dignity are all going to suffer. Bullies and their sycophants and apologists will thrive.

What should we do?

I have a few thoughts.

Ask Yourself if You’ve Earned The Right To Wallow: I’m a middle-aged, comfortable, straight white guy. I’m not going to take the brunt of what happens. So I have decided not to wallow or give in to hopelessness. I haven’t fucking earned it. Americans far less fortunate than I fought greater and even more entrenched injustice. Civil rights protestors, anti-war protestors, African-Americans, women, gays and lesbians, Jews and Jehovah’s Witnesses, all sorts of people have bravely faced death and penury and injustice without giving up and without the protections I enjoy. What right do I have to give up? None. Maybe you’re different. You may not be as fortunate. I’m not judging you. I’m only judging myself and inviting you to ask the question. Be patient and merciful with people less able to fight.

Reconsider Any Belief In Innate American Goodness: Are Americans inherently good, freedom-loving, devoted to free speech and free worship, committed to all people being created equal? That’s our founding myth, and isn’t it pretty to think so? But a glance at history shows it’s not true. Bodies in graves and jails across America disprove it. We’re freedom-loving when times are easy, devoted to speech and worship we like with lip service to the rest, and divided about our differences since our inception. That doesn’t make us worse than any other nation. It’s all very human. But faith in the inherent goodness of Americans has failed us. Too many people saw it as a self-evident truth that the despicable rhetoric and policy of Trump and his acolytes was un-American. But to win elections you still have to talk people out of evil things. You can’t just trust them to reject evil. You must persuade. You must work. You have to keep making the same arguments about the same values over and over again, defend the same ground every time. Sometimes, when people are afraid or suffering and more vulnerable to lies, it’s very hard. Trump came wrapped in the flag and carrying a cross (upside down, but still) and too many people assumed their fellow Americans would see how hollow that was. That assumption was fatal.

Start Out Making a Small Difference: A country that votes for Trump is broken in very complicated and daunting ways. Harris could have won in a landslide and 45% of the people voting for Trump would still have reflected a country broken in terrible ways. Moreover, any road out is long and rocky and painful. A Trumpist GOP has control of the entire government, the judiciary is dominated by judges who are Trumpist or willing to yield to Trumpism if it gets rid of Chevron deference, and state and local politics are increasingly dominated by extremists. The GOP is doing everything it can to rig the game to make it harder to vote our way out, and after four more years a stuffed judiciary will be even less inclined to stop them. The struggle to fight back is generational, not simple.

But nobody’s telling you that you have to fix everything. You can fix something. In Schindler’s List, Stern tells Schindler “whoever saves one life saves the world entire.” So save the world that way — one fellow American at a time. You can’t stand up alone against all the Trumpist bullies in America, but maybe you can stand up to a few local ones in defense of a neighbor. You can’t save everyone from mass deportation but maybe you can help one family. You can’t save all trans people from the terrible, cynical jihad against them, but you might be able to support one trans person. Start small. Make a difference for just one person. Use the gifts you have. Use your voice.

Believe Unapologetically: Nobody likes to lose. So when your side loses an election, there’s huge social and psychological pressure to change your stance, to moderate what you believe so you don’t feel like a loser. Don’t do it. Things are worth believing and fighting for. Did you ever see a Trumpist moderate or express doubt? No. Trump spewed loathsome bigotry and lies and ignorance and promoted terrible and cruel policies, many of which he may actually implement. The fact he won big doesn’t mean you were wrong to oppose those things and condemn them. Nor does it mean that you can’t win an election in the future by opposing those things and condemning them. Even if it did mean that — even if America as a country has gone so irretrievably wretched that ignorance and bigotry are essential to electability now — then it would be time for something new and different rather than the Republic we have now.

Trump won; opposition to Trump lost. People will want you to abandon your believes because of that. They want you to bend the knee. Screw them. Evil has won before and will win again, and it’s not an excuse to shrug and go with the flow. It’s going to get harder to stand up for decent values. You will face scorn, official suppression, even violence. That’s not enough reason to stop.

Not only is abandoning your values weak, it’s credulous. The Trumpist narrative will be that the electorate soundly rejected anti-Trump values. But did they? How much of the electorate acted from indifference, indifference that will be swayed the other way some day by different economic or cultural factors? Consume skeptically the “this shows you must abandon these goals” narratives.

Fuck Civility: Do you need to be screaming and waving your middle finger in the face of Trump voters? Only if you want to. Live your best life. But please don’t be conned by the cult of civility and discourse, the “now is the time to come together” folks. You are under no obligation to like, respect, or associate with people who countenance this. We’ve all heard that we shouldn’t let politics interfere with friendships. But do people really mean that, sincerely? Do people really think you shouldn’t cut ties with, say, someone who votes for an overt neo-Nazi, or an overt “overthrow the system and nationalize all assets” tankie? I don’t buy it. I think everyone has their own line about where support of — or subservience to — a doctrine is too contemptible to let a civil relationship survive. For most of my life no major party candidate was over that line for me. I have trusted, liked, and respected people who have voted the other way for decades. But whatever my feelings about Trump in 2016 or 2020, Trump in 2024 is definitely over my line.

Furthermore, no civility code or norm of discourse is worth being a dupe. Trump and his adherents absolutely don’t respect or support your right to oppose him. They have contempt for your disagreement. They despise your vote. They don’t think it’s legitimate. The people who voted for him, at a minimum, don’t see that as a deal-breaker. So Trump voters, to the extent they fault you for judging them, have a double standard you need not respect. Part of the way Trumpists win is when you announce “ah well, voting for Trumpists is just a normal difference of opinion, we all share the same basic American values,” while the Trumpists are saying “everyone who disagrees with us is cuck scum, they’re the enemy within.” Stop that nonsense.

I am invited to break bread with people who think my children, by virtue of being born elsewhere, poison the blood of America — or at least with people who think it’s no big deal for someone to say so. I decline. I decline even to pretend to accept or respect the suggestion that I should.

Don’t Let Regression Trick You Into Abandoning Progress: I know what Christ calls me to do — to turn the other cheek and love the Trumpists. I am not equal to the task, and I’m at peace with that and will accept the price. However, I must advocate for a similar concept: we can’t allow Trumpism to trick us into abandoning key values like due process of law, freedom of expression, and freedom of religion, just because they scorn them.

It would be tempting to throw up our hands and give up on those values. They have proven wholly inadequate to counter Trumpism and to protect themselves. Trump is a rampant criminal who will escape consequences because the system failed us. It remains to be seen if the system will protect us as he and his followers seek to use it to retaliate against their enemies. Maybe the Federalist Society can have a Chick-Fil-A sack lunch to talk about it. What good is freedom of speech if it elects someone whose overt agenda is to limit freedom of speech? What good is freedom of religion if it least to the triumph of foul Christian nationalism? What good is due process if it protects the rich and suppresses the poor?

The answer is not comforting: nobody promised you a featherbed. The promise has never been that due process and freedom will always prevail. The argument has never been if we have them we’ll never be vulnerable to tyranny again. That’s not how it works. The argument is that they are better than the alternatives, more righteous, better to promote human dignity, less likely to be abused by the powerful against the powerless than the alternatives. The premise is that the alternatives are more dangerous. Believing in due process, freedom of speech, and freedom of religion are a form of humility: it shows we know we are fallible and should be trusted with as little power as possible.

With Trumpism ascendant, there will be huge pressure to abandon these values that weren’t enough to protect us. For instance there will be wider calls for regulation of media - even as a Trump administration may retaliate against media enemies. But don’t let Trumpists turn you into a Trumpist. The existence of Trumpists — the existence of people who would, at a minimum, shrug and accept Trump’s abuses — shows why government power should be limited.

That means supporting due process and freedom of speech and religion, even for Trumpists who do not support extending the same values to you. That’s the way it works. That’s as close as I get to turning the other cheek.

Trumpism Is Not The Only Wrong: The essence of Trumpism is the Nixon-to-Frost proposition that “if my side does it, it’s not wrong.” Trump dominates American conservatives and putative people of faith even as he rejects the values they’ve previously claimed, because they’ve decided he’s their guy. He’s famously intolerant of dissent within his camp and that’s only going to get worse.

Don’t be like Trumpists. Keep criticizing people “on your side” when they are wrong. Criticize your side on Gaza. Criticize your side on criminal justice — God knows Biden’s and Harris’ records warrant criticism. “My side, right or wrong” is not a way to live. We are all in this together, but you can’t protect values by abandoning them to appease allies.

Stay Tuned For Violence: Violence is as American as cherry pie. America was founded on, by, and through violence, and maintained by violence on several occasions. Debate is preferable. Jaw, jaw is better than war, war. But most Americans would agree with what Thomas Jefferson said about the blood of patriots and tyrants. At some point violence is morally justified and even necessary. Americans will disagree on when. But I think Trumpism brings it closer than it has been in my lifetime — certainly the prospect of defensive violence, if (when?) the Trumpists use it first. When? I don’t know. Putting more than ten million people in camps with the military and a nationalized law enforcement is a very credible candidate, though.

Resist. Do not go gently. Do not be cowed by the result. Resist. Agitate, agitate, agitate. The values you believe in, the ones that led you to despise Trumpism, are worth fighting for whether or not we are currently winning. Ignore the people who will, from indifference or complicity or cowardice, sneer at you for holding to those values. Speak out. Every time you act to defend your fellow people, even in small ways, you defy Trumpism. In the age of Trumpism, simple decency is revolutionary. Be revolutionaries.

This Week On Serious Trouble

Ken White — Tue, 21 May 2024 16:50:57 +0000

This week on Serious Trouble we got less overtaken by events than I anticipated. Yes, I said that I thought Trump wouldn’t testify despite his boasts, but come on, that’s a gimme.

How I Learned Who I Am From My Dad

Ken White — Mon, 20 May 2024 18:39:40 +0000

My father would have been profoundly irritated by the phone call I received telling me he was dead.

He would’ve been at peace with the dead part. He was 88; he had a good run. He’d been struggling with congestive heart failure for a few years. His world gradually shrunk to the few paces he could manage from bed to chair to kitchen, and he was very tired. He knew the end was near. We planned for it together, and he was at peace with it. He would go on his own terms, as one should. When we talked about current events he remarked he was glad he didn’t have to stick around to see the current apocalypse play out.

But the call would have irked him. Dad wanted you to get to the point. “Just answer the question” he said innumerable times to me or my mother, perhaps throwing in a rude adjective if circumstances warranted, fixing his eye upon me as I temporized and danced around his question. Where did that big black bumper-shaped mark on the garage door come from? Well, Dad, first you have to appreciate the context. This was excellent training for speaking with judges.

Patience is not a recognized virtue of the men of my line. Dad’s patience would have been sorely tried by the young medical assistant who called me at work from his retirement community one evening a couple of weeks ago. As soon as he identified himself I knew there were only a few possibilities. My Dad might be dead. He might have fallen again or had another heart attack and they might be taking him to the hospital, a grim scenario Dad dreaded, carrying the likelihood of suffering, indignity, loss of autonomy, and decline and death on the hospital’s terms. Or, I thought, it was entirely possible that Dad was being thrown out of another retirement community. Congestive heart failure was inadequate to stop him from launching another agnostic’s schism amongst religious octogenarians if that is what struck him as righteous, proper, and entertaining.

A few short words, direct but kind, would resolve my suspense. But the young medtech didn’t have the heart to say them. He explained that they had gone into Dad’s apartment to check on him, and launched into a fairly detailed explanation of the technological system that allowed the management to determine if any doors had been opened recently, including both the specific methodology and the philosophical underpinnings of the program, vis-a-vis expectations of privacy and whatnot. This took a couple of minutes. Then he said they had encountered my Dad, though he was not immediately clear about Dad’s condition upon being encountered. He did not note whether Dad had any comments upon being found, as I would expect him to. He explained that they set out to determine how Dad was, and the methods they used.

Oh my God, I thought. I am being cat-up-on-the-roofed.

He mentioned there was some blood, which frankly was still consistent with any of the three possible scenarios I mentioned, and that the police were present, though not why. Surely email flame wars about why one must wear a jacket in the dining room on Sundays are outside the ambit of the Pasadena Police Department.

At this point I began to suspect that this call was not within the scope of the young man’s normal job duties. Compassion, not clarity, was his calling.

He mentioned they found Dad in the bathroom. “Like Elvis,” I said, my voice cracking, almost but not quite losing my shit altogether.

“I’m not sure,” said the young man, sounding nonplussed. Like many health care workers he was an immigrant and though his English was impeccable he may not have been familiar with The King. He returned to the familiar safety of retirement home protocol and began to discuss the process for evaluating a resident’s condition. Three or four minutes into the call he still had not said explicitly whether Dad was dead, or incapacitated, or embarked again on a campaign of rebuking society’s intrusive presumption of a common set of religious beliefs as a prerequisite for participating in public life.

I gently asked to speak with one of the police officers, and the young man handed the phone to the officer with palpable relief, and the officer immediately said “I’m sorry for your loss,” and that was that. Say this for cops: they will rip the band-aid right off for you.

As I’ve gotten older, figuring out my parents has been central to figuring myself out. Time has humanized them, transforming them from a child’s omniscient protectors to an adult’s fallible and relatable companions.

This began with my Mom, whose illness and death in 1998 stripped the hagiography from her. I began to understand then that she was just another person along for the ride, making things up as she went as often as not, her air of certainty an accommodation to parenthood. That was comforting, not scary. If she could make her way, so could I. Though the process is not without its bumps. “WHAT THE FUCKING FUCK” I exclaimed suddenly this weekend as I read one of her letters to my dad from college in 1960, which he carefully maintained in its original envelope. “I am writing this to you from class, in which, for the record, I am carrying a D,” said the woman who would later tell me that people who get a C+ quarter grade in French become ditch-diggers or drug dealers or possibly drug-dealing ditch-diggers. Seriously Mom?

That process — figuring out what it means to be human by figuring out your parents are human — was even more profound with Dad. He was somehow never complete without Mom, and in watching that I reevaluated what it meant to be a husband, and father, and friend, even one is an introvert and even a bit of a misanthrope. I rethought what it meant to be private and independent but to love and be loved as he reconciled his fundamental taste for solitude with his love for his grandchildren. As I struggled with depression and anxiety he opened up to me about his experiences with them, thoughtfully passed through DNA from his father. The difference, I realized, is that he did it without therapy or meds or any social sanction to talk about it to anyone. Jesus, the strength of the man.

I also figured out a great deal about being a lawyer. My youth was spent with him editing drafts of essays, in occasionally angry disputes over the placement of this comma or that phrase, learning to care about words and their power. If I can write, or speak, it’s because of him. But later he taught me more important things. Having spent my college years thinking my parents were hopelessly regressive like all Olds, I learned as an adult that for many years he had been drafting effective estate plans for same-sex couples protecting their rights in the case of medical emergencies or death. He didn’t do it because it was progressive. He was neither loud nor quiet about it. There was neither fanfare nor deliberate lack of fanfare. He just did it. He did it decades before anyone talked about legalizing same-sex marriage. He did it because a lawyer’s purpose is to serve the client and work towards the client’s goals. I thought about that when I went to court the morning after he died, because the client needed me and that’s what Dad would expect of me. I was a little brittle, to be frank.

Since my Mom died — many years now, half my life — I’ve struggled to balance respecting Dad’s independence and privacy and making sure that we were there for him, welcoming to him, including him. It was sometimes frustrating, and it caused occasional hard feelings. But by grace that eased in the last couple of years as his condition worsened. I visited every week, particularly as he could no longer leave his apartment. He let me help him more than he wanted and I tolerated his stubbornness more than I wanted. The natural friction between two very independent people smoothed. We understood each other. I cherish those hours, and our rambling conversations, as I cherish the time I spent with my Mom when she was ill.

There’s never enough time to ask what you’d like to ask. I read his letters to his mother from Korea in 1959, my Mom’s letters to him before they married trying to reconcile his stubborn agnosticism and her devout Catholicism. They figured it out; he read the newspaper in the car outside many a church when we travelled on vacation, and I never heard him question faith until I was an adult, though I could feel him not questioning it. I wish I could ask questions now about those letters, about who is standing beside him in some of these pictures, about where he found a particular piece of art. I sift through his possessions. I found a very old compass, the brass shiny from rubbing fingers, compact and light and perfect for the wilderness adventures he hated. Did his father give it to him? Does he keep it to remember, even though he hated the wilderness and they had a very fraught relationship that was never repaired? No one alive can say. The answers are left to whatever end awaits us all.

I am fiercely proud to be his son. I will not see his like again.

An Incomplete Primer of Caselaw Appertaining To Bigfoot, AKA Sasquatch, LNU

Ken White — Wed, 14 Feb 2024 18:48:29 +0000

I was preparing to revive an ancient Popehat post concerning a defamation lawsuit among Bigfoot hunters when I was quite transfixed by a thought: is litigation concerning Bigfoot common? By not only posting about a Bigfoot-related defamation case, but re-running it, am I giving my readers a false impression of the frequency of such cases? Or, to the contrary, am I giving a false impression by not posting enough about Bigfoot? Am I a willful suppressor of legal Bigfoot news?

My reputation as a law pundit at stake, I researched the matter. I present to you my conclusions.

PART ONE: CASELAW CONCERNING BIGFOOT

The most difficult element of Bigfoot legal research is that most cases that mention Bigfoot only involve the misappropriation of his name for commercial purposes. The dusty pages of American common law are thick with tire stores, truck stops, equity funds, and the occasional strip club using the name. But when they come to court, they do so over petty concerns like trademark, wrongful termination, bad Yelp reviews, and so forth.

It takes a careful eye and steady hand to separate out the authority that is actually about Bigfoot qua Bigfoot. But patience is rewarded with verifiable sightings.

The subject of my original post was John Johnsen v. Matthew Moneymaker, Loren Coleman, and Cryptomundo, Inc., Case No. 512011CA-5176ES (6th Judicial Circuit, Pasco County, Florida). Defamation was the case. Johnsen claims that Moneymaker conducted cryptozoological research expeditions seeking Bigfoot in the Ocala National Forrest, that Johnsen joined such an expedition in February 2005, and that in June 2011 Moneymaker published a post on Cryptomundo’s site falsely accusing Johnsen of being mentally ill and of carrying firearms into the Ocala National Forrest during the expedition. Specifically, Johnsen claimed that Moneymaker and Cryptomundo said that Johnson was “not in the same reality as the rest of us,” that is, not in the same reality as the other persons on an expedition to find Bigfoot in Florida. The case presents fascinating issues of the distinction between provably false statements of fact susceptible to defamation analysis versus hyperbole, rhetoric, and opinion. Mr. Moneymaker later figures in another case on this list. Mr. Johnsen produced “Hunt the Dogman,” which Reddit informs me is the “best documentary out there on Dogmen.”

Claudia Ackley v. State of California et al., CIVDS1801387 (San Bernardino County Superior Court) is both the most notorious and most disappointing recent litigation concerning Bigfoot. Ms. Ackley, who firmly believed she saw Bigfoot on a hike, sued the State of California and various agencies thereof, seeking a writ of mandate compelling California authorities to abide with the rule of law in connection with Bigfoot: for instance, by monitoring Bigfoot’s well-being under Fish and Wildlife Code section 1008, which obligates the California Department of Fish and Wildlife to “investigate all diseases of, and problems related to, birds, mammals, or fish, and establish and maintain laboratories to assist in such investigation.” However, Ms. Ackley dismissed her lawsuit before it could establish useful precedent, and through she promised to refile it, she regrettably passed away before she could, reputedly of hypertension.

In Todd Standing v. Minister of Forests, Lands, Natural Resources and Rural Development (Her Majesty the Queen in Right of the Province of British Columbia), 2018 BCSC 1499, the plaintiff was similarly disappointed. Mr. Standing, a Bigfoot researcher, brought suit seeking a declaration that Bigfoot was real (either Giganto Horridus Hominoid and/or Gigantopithecus) and that the government had committed a dereliction of duty in failing to recognize Bigfoot and had infringed Mr. Standings’ right to freedom of belief, opinion, and expression by failing to recognize Bigfoot officially. I am an American lawyer, and unreliable on the structure and traditions of Canadian government, but it seems to me that technically speaking Todd Standing sued Queen Elizabeth II to establish that Bigfoot is real. The Supreme Court of Columbia found that the government’s failure to believe in Bigfoot did not impede Mr. Standing’s right to believe in Bigfoot and ordered him to pay the government’s costs. Thus ever are freethinkers treated.

Newgrowth Capital Corp. v. Craig Woolheater and Cryptomundo, LLC, No. 07-V-0307-L (N.D. TX 2007) concerns the “Kentucky Clip,” videotape of Bigfoot taken in Kentucky in late July 2005, possibly without his consent. Matt Moneymaker — yes, the same one — sold the Kentucky Clip for $20,000 to the Bigfoot Researchers Field Association. BRFA asserted in the lawsuit that the defendant obtained access to the Kentucky Clip without signing the nondisclosure agreement Bigfoot researchers were required to sign to access it and that BRFA was afraid that he would use it to compete with BRFA through the Texas Bigfoot Research Conservancy, a Texas Domestic Non-Profit Corporation. The case was transferred to United States District Court for the Central District of California, where the plaintiff had already filed a similar suit, where it was dismissed. As is often the case, hopes of fame in Los Angeles were dashed.

Dahinden v. Byrne, No. 79-968, 1982 WL 1162, at *1 (D. Or. Apr. 14, 1982), on reconsideration, No. 79-968, 1982 WL 63775 (D. Or. June 21, 1982), concerned a copyright infringement lawsuit brought by the author of Sasquatch, a work analyzing reports by Russian scientists who, in turn, analyzed the famous “Patterson film.” Since the parts of the work alleged to be infringed were, themselves, materials from other sources like the Patterson film and the Russian reports, the matter was dismissed.

W. Commc'n Corp. v. Barnick, No. 18-CV-10437, 2018 WL 2717781, at *3 (E.D. Mich. June 6, 2018), is about a commercial dispute unrelated to Bigfoot — or is it? The plaintiff included allegations that one of the defendants’ Chief Executive Officers was an “incompetent, crooked, religious fanatic” and “a crazy recreational bigfoot hunter.” The United District Judge granted a motion striking these allegations as impertinent and irrelevant to the commercial disputes at issue. This further emphasizes the duality in American law between Bigfoot and commerce.

In Doyle v. Comm'r, New Hampshire Dep't of Res. & Econ. Dev., 163 N.H. 215, 219, 37 A.3d 343, 346 (2012), the court agreed that the First Amendment protected Mr. Doyle’s right to dress as Bigfoot, or Yoda, or a pirate, for performance art purposes at Monadnock State Park notwithstanding regulations purporting to forbid such activities in the absence of a permit. The performance art had resulted in local reports of Bigfoot sightings, though not Yoda or pirate sightings. Before you ask, no, he was not dressing as Chewbacca — I checked.

State v. McNearney, 193 Wash. App. 136, 144, 373 P.3d 265, 270 (2016), rejected a defendant’s attack on a prosecutor’s closing argument, which featured Bigfoot. The prosecutor, in the course of refuting the defendant’s alternative theory of the case, suggested that if your child claims that they did not eat the brownies, but Bigfoot did, evidence is not required to refute the suggestion. This did not, the appellate court found, impermissibly reduce the government’s burden of proof.

Disability Rts. S.C. v. McMaster, 24 F.4th 893, 908 (4th Cir. 2022) featured Bigfoot as a figure of philosophical analysis. The dissent, rejecting the logic of the majority, intoned “Choosing not to reject the possibility of a proposition is not the same thing as accepting that proposition. For example, not rejecting the possibility that Bigfoot might exist surely does not mean accepting that Bigfoot does exist.” Bigfoot did not meaningfully contribute to the debate.

Farrell v. Burke, 449 F.3d 470, 478 (2d Cir. 2006) involved a parolee’s First Amendment challenge to his parole officer’s restrictions on his possession of pornography, including “My Comrade.” The parolee argued that My Comrade was more satirical than pornographic: “it appears intended more to amuse than to arouse. It contains a few depictions of nude men, but they are usually in a satirical context, as with the drawing of a furry (but obviously male) naked creature accompanying the article entitled “I Had Gay Sex—With Bigfoot!” I doubt that Western social norms and sexual mores can be easily imposed upon Bigfoot.

Malone v. Royal, No. CIV-13-1115-D, 2016 WL 6956646, at *8 (W.D. Okla. Nov. 28, 2016), aff'd sub nom. Malone v. Carpenter, 911 F.3d 1022 (10th Cir. 2018) is a habeas corpus action involving a defendant who blamed some of his actions on methamphetamine use, saying that methamphetamine made him moody and paranoid and that he would hear people in the attic and that he “saw Bigfoot” while was out cooking on the lake. As a result of grammatical ambiguity it is not clear whether it was Malone or Bigfoot who was cooking on the lake. Is there analytical literature about whether Bigfoot uses fire? Of course there is.

PART TWO: MISIDENTIFICATIONS

As an undernourished black bear or stray Unix coder may be mistaken for Bigfoot, so may many cases easily be mistaken as being about him. Careful forensic case analysis is necessary.

For instance, in State v. Orr, 3 Wash. App. 2d 1039 (2018), aff'd sub nom. State v. Moretti, 193 Wash. 2d 809, 446 P.3d 609 (2019), Mr. Orr was convicted of breaking into an occupied house in northwest Spokane while armed with a metal pipe and then attempting to fight his way off the property, motivated by a rumor that Sasquatch was obtaining sexual favors from Mr. Orr’s girlfriend in exchange for drugs at that residence and also holding children against their will. This was a misidentification. “Sasquatch” was merely an alias for someone who was not Bigfoot at all. There is no reliable evidence that Bigfoot is a sex trafficker or drug user.

PART THREE: ANTICIPATED LITIGATION

There are times when Bigfoot has not yet generated litigation, a researcher familiar with the highly litigious character of the American public, and to some extent with Bigfoot, can reasonably anticipate it is likely to occur.

For instance, in Flathead County, Montana, a man dressed as Bigfoot was struck by cars — one driven by a 15-year-old, one by a 17-year-old — and tragically died. Although it would seem that the statute of limitations has long passed, my experience of American law will not admit the possibility that litigation will not ensue.

Or take Leslie Cockburn, a Congressional candidate in Virginia, who accused her opponent Denver Riggleman of producing Bigfoot erotica. Bigfoot sexuality is beautiful and natural and I support it, though I would prefer it not be associated in my mind with Republican members of Congress. Riggleman did not sue; he won the election, became a Member of Congress, and went on to write Bigfoot . . . It’s Complicated, which despite my first impression is not a book about relationships but about his status as a “Bigfoot Scholar.” Though Riggleman has not yet sued, performative and fundraising defamation suits have become extremely common among Republican politicians. I hope that Riggleman will not risk his reputation as one of the most respected Republican members of Congress with a futile suit.

This Week On Serious Trouble: Bad News For Trump

Ken White — Wed, 07 Feb 2024 15:23:38 +0000

This week on Serious Trouble, the DC Circuit says “how about NO” to Donald Trump, Fani Willis responds forcefully to conflict allegations, and a Senate amateur porn enthusiast skates.

Columbia Law Student Senate Censors To Prevent Censorship

Ken White — Tue, 06 Feb 2024 23:47:08 +0000

University students are not the greatest threat to American liberty.

That sounds obvious, but you might not know if you listened to popular discourse about universities. Universities, we’re told, are hotbeds of ruthless woke kulturkampf, indoctrinating students into far-left ideology and giving them an unslakable thirst for censorship that will be unleashed on America upon their graduation. This is not a new moral panic — there was one about “political correctness” like it when I was in college, back in the last millennium — but it’s noisy and omnipresent.

I dissent for several reasons. First, and most importantly, the greatest threat to American freedom of speech comes from our elected leaders — leaders who pass shamefully pandering laws restricting campus speech, leaders who normalize and encourage performative and cynical defamation cases against political enemies, leaders who abuse government power to suppress dissent, leaders who convey through the force of law that dissent is illegitimate and un-American. Sometimes those leaders are university administrators. Trying to focus our attention on college students whose power to suppress is much more temporary and limited in scope is a dangerous misdirection.

Second, a substantial part of the tumult about university students is right-wing kayfabe. The hostility towards students is often hostility against a set of values most popular with students — views about ethnic diversity, gender, and sexuality. I am unconvinced that the loudest voices angrily denouncing students sincerely believe in freedom of conscience and expression. I think they hate the students for their values.

So we shouldn’t make university students the scapegoat for America’s political and cultural woes. On the other hand, we shouldn’t condescend to them, infantilize them, or fail to speak forthrightly when they are wrong. Sometimes students are insufferably censorial. We should ask them to do better.

This is one of those times. The crucible of wrongness is the Gaza conflict, as has so often been the case recently.

At Columbia Law School, students who want their organization officially recognized must be approved by the Student Senate, and you spotted the problem already, didn’t you? In the last year one group out of nine applicants has been denied — Law Students Against Antisemitism. By an anonymous vote, the Columbia Law Student Senate rejected them. They’re controversial because they subscribe to a definition of antisemitism offered by the Holocaust Remembrance Alliance. This, student senators thought, was unfair and potentially suppressive of anti-Zionist speech:

There were two main complaints raised before and during the senate meeting about Law Students Against Antisemitism: that the organization would suppress speech and that the alliance’s definition conflated antisemitism with anti-Zionism.

Now, Columbia Law’s students are perfectly right to be vigilant about attempts to suppress criticism of Israel. Plenty of people of bad faith have been trying to disguise suppression of anti-Zionist or pro-Palestinian thought as concern about antisemitism. Colleges have been complicit and sometimes students are the ones advocating suppression.

But Columbia Law’s Student Senate is being fuzzy-headed at best, and acting at bad faith at worst, to say that a student group shouldn’t be approved if its values and viewpoints could lead to censorship if widely accepted, or that its definition of racism is wrong. A newly formed Law Students Against Antisemitism would only be able to add one additional voice — a student voice — into the incendiary debate about Israel. Their definition of antisemitism is subject to critique, like everybody else’s. They would have no official power to enforce it, only the power to associate with each other and speak their views. Their power to argue that some criticism of Israel is antisemitic is no more powerful — and no less a legitimate part of the debate — than Students for Justice In Palestine saying that it isn’t.

I also question whether the supposed logic is sincere. Would the Columbia Law Student Senate deny recognition to, say, the Black Law Students Association, on the basis that students from that group have sometimes called for the punishment of speech they perceive as bigoted? Somehow I think not; nor should they.

So does the Columbia Law Student Senate think that it’s necessary to stop speech to save it? Possibly. It’s the sort of philosophical fatuity that students have always eructed. Realistically, though, it’s more likely that these particular students think that when they don’t agree with speech, it’s legitimate to suppress that speech by any means at their disposal, including official and quasi-official means. It’s more likely that they think they have some kind of right not to be exposed to speech they hate. They see no value in the utterance of things unless they agree with those things, and don’t share the value that they should respond to speech rather than preventing it. I feel no obligation whatsoever to respect that sentiment or the students who hold it, as I’ve made clear before. And I am perfectly capable of regarding them as censorial dipshits while recognizing that they are also mostly insignificant censorial dipshits, compared to our nation’s leaders.

The fact that Columbia Law is private, and not bound by the First Amendment, does not change this analysis. Columbia advertises itself as a haven for free expression. If Columbia law wants to be free for expression that its Student Senate agrees with, maybe it should say that on the package. The belief “there is only one correct way to view the conflict in Gaza and we will not recognize student organizations who disagree” is loathsome and un-American whether or not it violates the First Amendment.

I think the students could do better. In fact I expect it of them. I expect students at one of America’s best law schools to say “I think your definition of antisemitism is overbroad and wrong, but you get to advocate it just like other groups do.” I hope that age and experience will rub the censorial dipshittery off of them. But all of this may mark me as naive. Has the America of this century provided a good example of the value of liberty? Have these students’ local and national leaders modeled a mature and civically responsible approach to encountering speech they don’t like? Likely no.

Finally, though I was initially inclined to call them cowards for voting anonymously to suppress speech, after some thought I repented. Any vote on this subject is likely to expose them to death threats encouraged by bad actors. That’s not an appropriate or proportional response to censorial dipshittery.