Most experiments fail, and from that we learn what doesn’t work.  I was extraordinarily fortunate in that my experiment worked, far beyond my wildest expectations.  Some might be surprised to learn this, but those would be people who failed to apprehend the nature and purpose of the experiment.  I will explain.

When I started Simple Justice in February, 2007, I did so as an outlet to write my thoughts about news, law, whatever struck my fancy.  I started that day with two readers, one of whom was forced to read.  I knew nothing about the blawgosphere, not even what a decent blogging program would be or what a good blog should look like.  There were a couple of other lawyers, friends of mine, who blogged, and they noted the existence of my blog on theirs.

Over time, more people read.  I remember the first time I had 100 readers.  I was astounded that 100 people would spend the time to read my ramblings.  I was flattered.  Some comments started appearing, and I enjoyed discussing the things I wrote about with these commenters.  They were mostly other criminal defense lawyers, and we would banter and spar over issues.  It was great fun.

Then other blawgs started linking to my posts, and more people read.  When I saw 500 people read my posts in day, I was blown away.  Then 1000.  Then 2500, Then 5000.  Then 10,000.  Then more.  My posts were linked by other blogs, some well established and well known, others brand new.  I saw blogs come and go.  I welcomed many, panned a few.  But I always wrote whatever struck my fancy, and if someone else felt it was worth a link, great.

My voice has been the same since I started.  I have opinions on things and say them clearly.  If I have no opinion, I didn’t write about it.  But as the numbers grew, the people who came here changed.  Some were lawyers, most not.  Some were regular readers, most day trippers.  Many people who showed up had their own agendas, which didn’t happen to be my agenda.  Some were, in my opinion, dangerous or antithetical to my views.

The comments grew as well, often to unmanageable proportions.   In the beginning, they were part of an interesting conversation.  Over time, they changed.  Half the comments were interesting.  Half were idiotic, self-serving, inappropriate or spam.  In the beginning, I spent time trying to talk to people whose ideas were not really worthy of discussion.  Over time, I tired of the effort.   Still the comments kept coming, the spam, the ignorance, the deceitful.  My tolerance grew increasing short.

Then there were the law students and young lawyers, who tend to be more computer literate than older guys like me, and who would play the Socratic Method game in the comments, challenging or arguing every point of nuance from their eager but inexperienced perspective.  At first, they were cute, but they could be very demanding and often misunderstood that I was a lawyer, not their law professor, and had neither the time nor inclination to spend all day answering their questions.  They could be quite a handful.

On top of that, I was deleting thousand of spam backtracks a day, ranging from the basic sale of drugs to correct erectile dysfunction to claims of videos of sex with animals.  This too grew tiresome. 

Still, each day I sit down in the morning with a cup of coffee and write about the things that interest me.  There’s no one in my library telling me what sells, what will interest others, what will make me look particularly attractive.  It’s just the same stuff that I started writing on day 1 in February, 2007.  But much has changed externally since then.

What readers rarely think about is that I, as the blogger, have access to information that you don’t.  I know how many people are reading a particular post or topic.  I know where they come from, how they got here and how long they remain.  There are posts I write that I believe are truly insightful and important, and they are read by experienced criminal defense lawyers and a handful of non-lawyers of remarkable intelligence and interest.  These posts usually received a fraction of the read of some other posts, which tended to be more cutesy, insipid or trendy.  The ones that required a greater level of knowledge and thought were never my most popular posts.  But they were my favorites.

A short time ago, someone told me that I was being unfair in my attitude on my blog.  It was no longer my prerogative to post what I chose, or be intolerant of commenters.  I was informed that my blog had grown so large that it had taken on a stature beyond me.  I now had a responsibility to my readers.  When I wrote something critical, many others would read it and it would be treated very seriously.  When I slammed someone in the comments, it sent shockwaves through the blawgosphere.  Suddenly, this was not about an old time lawyer spending a little time writing up his thoughts. 

Simple Justice was an institution, and as an institution, I had a duty to the public, I was told.  I denied it vehemently.

But I needed to test this accusation.  Was this still about an old-time lawyer, sitting in the early morning writing his thoughts down with a cup of coffee at his side, or was this an institution with responsibilities beyond his control?  This was the experiment.

What I found was that Simple Justice no longer reflected my purpose in creating and perpetuating it.  Others now imposed their purposes on it, projecting their expectations and judging whether I met them.  People who read this blog think that I’m supposed to satisfy their wants and desires, both in content and tone.  Others project their psychological needs on me, assuming that my blog exists to perform some public function, whether marketing or educational or informational, because that’s their understanding of what blogs are here for.  And they are critical of me because I’m not adequately satisfying them.

While I still don’t know that this makes Simple Justice an institution, it is definitely inconsistent with my purpose for writing.  I never sought anyone’s approval of what I wrote or why.  Some of it disheartens me deeply.  Other angers me, demanding that my purpose must be the same as theirs, when there is no overlap whatsoever.  The issues that concern me don’t concern you?  So what?  There is nothing here that suggests that it’s about you.  You think my views are foolish, wrong, simple, ignorant?  So what?  There is nothing here that suggests that I seek anyone else’s approval.

This is a blog.  You don’t pay for it.  No one makes you read it.  The opinions expressed are those of one person.  There’s no staff lurking in the background turning out post after post to generate advertising revenue.  I get no advertising revenue.  There’s not a dime to be made from Simple Justice.  Whether you read it or not is of utterly no consequence.  I wrote for 2 people exactly as I write for 10,000.

For those who cannot imagine a world where a lawyer would just write for the hell of it, thereby projecting their own views that this must be a marketing vehicle, boy have you got it wrong.  Aside from the reality, that the nature of my clientèle doesn’t lend itself to marketing in the blawgosphere (or on the inherent, I might add), I have never gotten a single case that I’ve taken as a result of this blog.  How about that, marketers?  That doesn’t help you to sell your wares, does it? 

I’ve gotten hundreds of phone calls for free advice, asking for pro bono representation, for low rent criminal defense that falls far outside the nature of my practice and from people who wanted to know why they
should have to pay a lawyer if they’re innocent.  There is absolutely no financial gain to be had with this blog.  Zero.  I did refer some case to other lawyers in other parts of the country, so they benefited, but I never even got a bottle of wine in return as a thank you.  That’s lawyers for you.

Yet I have law students and rookie lawyers lecturing me on what I’m doing here, and what I should be doing here.  This is fascinating.  I love the new criminal defense lawyer who has yet to try a case explaining marketing life to me, with perhaps the best line in the experiment. 

You have apparently hit upon this formula on your own without the help of marketing professionals, and more power to you for that.

I’ve hit on nothing.  I just wrote.  His view of the world is so myopic, so distorted, that he can’t envision a purpose untainted from his.  It’s a formula. 

Other comments profile my psyche as seen from my posts.  What is described as ego, or arrogance, is more appropriately described as hubris.  Who am I to publish my opinions so notoriously?  What gives me the right to say the things I say?  I admit this.  It’s an occupational hazard of being a criminal defense lawyer, the type who has tried cases.  If anyone needs further explanation, then you aren’t ready to understand.  

But then, if you think your opinion is worth publishing, start a blog.  No one’s stopping you.  I’m certainly not.  Start it, write whatever you think appropriate, and adopt an egoless tone if that’s what suits you.   It’s cool with me, not that you need my permission.  Perhaps you have great ideas and will have millions of readers.  Great for you.  Give it a try.  It must be easy if I can do it, especially without the help of marketing professionals.

Still other comments presume to state how my thoughts on subjects, notably the suggestion that I’m better than public defenders.  This is about as far from reality as could be, and reflects wholesale assumption and ignorance of what I think and what I’ve written on the subject.  It’s fine that a reader doesn’t know what I think, since no reader is obliged to read everything I write, but to put words in my mouth that are wholly wrong is another matter.  It reflected only the commenter’s mindset, not mine.  This needed to be straightened out.  A commenter’s cluelessness doesn’t change what I think.

And then there are other comments, most notably by Lee, a California PD.  I don’t know much more about Lee, except that he reads fairly regularly and doesn’t like me.  Lee and I disagree about a lot of things, but Lee’s comments show a depth of experience in this practice that makes his thoughts worthwhile.  I like Lee, even though he thinks I’m wrong much of the time.  But others who don’t bring Lee’s experience to the table don’t add to the conversation what Lee does.  I’m sorry if this hurts your feelings, but many of you just add nothing.  You’re not Lee.

When I finally got around to reading other people’s blogs, I stumbled upon another old-timer, Norm Pattis.  I learned that people either loved or hated Norm, because he held nothing back.  I loved Norm.  Norm burned out on blogging.  Norm and I talk to each other about it from time to time.  I think Norm understands what has happened to Simple Justice.  I’m not sure how many other people do, but the number would be very small.

You new lawyers, the ones who are all hyped up on formulas and marketing yourselves “with dignity” would probably give your left nut to have the number of readers who come to Simple Justice every day.  So go do it.  Regardless of how wrong you think I am in my crusade against lawyer marketing, I can’t stop you.  Why should you care what I think? 

But there is one aspect of this that has eluded almost everyone.  I didn’t go trolling the internet looking for legal marketers to malign and harass.  They came here.  The “attack” that has raised such ire from the marketing crowd happened in the comments on my blog.  To readers, this distinction likely means nothing.  To me, it meant everything.

They came because there were readers here that they wanted to touch, because they feared that my opinion would smear them in too many eyeballs.  How ironic that little old me, who has hit on the “formula” and manged to gain all those eyeballs without the help of marketing professionals, can strike fear in the hearts of the very people who would sell their services to others to gain eyeballs.  You would think that they would have all eyes on them.  After all, they are the marketing professionals.

No one told the marketers that they could use Simple Justice as a platform to make their pitch, over and over and over.  I allowed it to a point, but that wasn’t enough for them.  That’s when my intolerance kicked in and I reacted.  For those who “suspect” that my publishing the letter was some sort of apologia for my reaction, you are mistaken.  If my purpose really is, as you believe, to market, then perhaps I would do damage control.  Then again, I would be disinclined to make enemies in comments, or post long emails from young probate lawyers that make me look pretty awful.

It doesn’t matter whether any of you comprehend this or believe me.  Even some close friends in the blawgosphere, people who I’ve helped out along the way and supported when they needed a hand, have expressed doubts as to my purpose and took issue with my prickly demeanor.  Others have remained silent on the issue, apparently unwilling to get bloodied in the mêlée. 

So this is why my experiment has been a smashing success.  I’ve leraned that Simple Justice has gone far, far astray of its purpose, an outlet for me to write about things that interest me.  Nothing more.   I will continue to write about things that interest me whenever the mood strikes.  I will continue to respond to comments in whatever way I chose.  I will continue to take the position in which I believe, even if it’s unpopular or, God forbid, boring to others.  Simple Justice will no longer be an institution.  Just a blog.

Post Script:  I don’t know how many readers will make it this far, but of the ones who do, some will feel that this is a blatantly self-indulgent post (not to mention boring to them).  It is indeed self-indulgent.  Everything about Simple Justice is self-indulgent.  That’s why I write.  I’m not you, and I don’t chose to be you.  I have no plans on letting any reader define me or my purpose.  If you still don’t get it, then you never will.  And if you never want to read Simple Justice again, I’m fine with that.  But thanks for your help with my experiment.

I was going to write about Giant’s wideout, Plaxico Burress today.  I’ve decided not to.  Maybe I’ll post about something else tomorrow.  If I do, it will be whatever strikes my fancy, just as it was on day 1.  With that in mind, a musical interlude.

In a special, post-Thanksgiving edition of the reader mailbag, I’m going to try something a little different.  What follows is a real email sent to me recently, no changes, paraphrasing or edits.  I post it because the author states up front that he wanted to comment on a post in which comments were closed, and so sends it to me by email instead.  I responded by inviting the author to post it in the comment to a subsequent post addressing the topic, but he didn’t do so.  However, having once stated that he wanted to make his thoughts public, and given the nature of his thoughts, it struck me as something that ought to be put out there.

The letter is very critical of me, but substantively so.  It’s not the usual, “you’re ugly and you dress funny” stuff.  I’m accused of a variety of things, ranging from hypocrisy to elitism to holding myself out as better then others.  Since this isn’t the way I view myself, I was curious to learn whether I come across this way in general.  I’m sure some will think so, there being a broad array of people who read stuff like Simple Justice on the internet with a similarly broad array of sensibilities, but some of you read Simple Justice with some regularity (though each of you should read every post everyday) and have a good sense of what I’m doing here.

This is an experiment, perhaps one of the stupidest I’ve ever tried.  But one never knows unless one tries.  We will all find out what comes of this together.

It doesn’t matter what I think about the letter.  People tend to be fairly poor judges of themselves. So this is posted to offer others the chance to express what you think.  Since I’ve never been reluctant to offer critical thought any much of anything, I have no reason to expect you to be any different.  Let ‘er rip.

Mr. Greenfield,

I recently read your exchange with Mark Merenda.  I am writing you directly because you closed the comment thread.  First, I pay Mark’s company to help market my firm, and I consider Mark to be a friend.  He was a friend for three years before I paid him a penny, and he gave me a pile of free advice in that time without ever asking anything in return.

Also, I want to point out that I bear you no personal ill will.  If we met in person, I would shake your hand and buy you a drink.  But, you attacked a friend of mine.  And, by making it a lawyer/non-lawyer thing, you intentionally framed the debate in a way that prevented Mark from defending himself.  So, without all the fluff and fanfare, here is my response…

Your attack on Mark was undignified and demeaning to the legal profession.  You engaged in baseless name-calling and – surprisingly for a lawyer – you did not present any argument to support your position.  It was simply a tantrum.  Because you completely failed to support your point, I had to read some of your other writing to get a feel for your position on these matters.  Based on the statements on the main pages of your website, I think I have a pretty good feel for where your anger is coming from.

In a nutshell, it appears that you believe you are significantly better than other attorneys, and you dislike lawyer advertising because it frustrates your ability to advertise your superiority free from other “lesser” souls making competing claims.

Meanwhile, you happily claim on your website that you have appeared as a legal expert on television shows.  Mr. Greenfield, I can tell you from firsthand experience that television shows rarely use legal expertise as the primary factor in selecting guests.  I have seen many, many legal experts selected on looks, whether they’ve published, or simply the fact that they were counsel of record in a case that caught media attention.  Merely appearing on television, one time or twelve, is not indicative of legal ability.  Yet, you cite that on your website as a factor.  Many attorneys would consider that to be misleading and undignified.

Even more disturbing, you actually write on your website that you are better than other attorneys and would get a better result for your clients.  Many states actually prohibit those kinds of statements.  I know that a good many lawyers would find them wholly undignified.  I have a dear friend and mentor, retired New York Judge William Lawless, who wrote much of New York’s evidence code back in the 1960s.  I had a conversation with Judge Lawless where he went on at length describing the harmful effect of lawyers competing on quality of result.

I will summarize Judge Lawless’ argument as it relates to your area of practice.  Mr. Greenfield, you diminish the legal profession, because your advertising gives the public the impression that the criminal justice system doesn’t determine guilt or innocence.  Rather, the result of the legal system is to determine who has the best lawyer, and then reward that person.  The legal profession suffers when people believe that an acquittal can be purchased simply by hiring a better lawyer.  The converse is true as well.  The legal system suffers when people believe that innocent people get convicted simply because they didn’t have a better lawyer.

Indeed, these things happen.  But, they are tragedies of justice, not marketing opportunities.

So, rather than bemoan the sad state of legal marketing, I would suggest you take a look in the mirror and recognize that you are participating in the activities you claim to dislike.  The only difference is that you feel entitled to your message.

In the end, it is merely ego.  You have personally decided that you are good enough to advertise, while others are not.

As for Mark Merenda, I hired his firm precisely because he could help our firm craft the high image we were looking for.  He has never suggested I do anything undignified or unethical.  He has never suggested that I do something so crass as to compare myself to other lawyers.  He has simply suggested that I take the high road and teach others about the ways I can help them.  I would suggest that you do the same.

Sincerely,

David Allen Hiersekorn
Attorney and Counselor at Law

There is one condition that I’m placing on comments, if any.  Recognize that this writer has shown the guts to stand up for friend, speak his mind directly and sign his name to his criticism.  Whether you agree or disagree, I ask that you respect the fact that he has demonstrated the highest degree of integrity in how he has presented his views.  Like them or not, I do.

Law 21 by Canadian lawyer and journalist Jordon Furlong is a fairly new blog with some of the most thought-provoking ideas around.  Like most of us, he’s keeping a keen eye on the changes in the legal profession, with particular note on how innovation and trends are affecting the practice of law.

I learned about Law 21 from Niki Black, the Queen of New York Blawgers and wine connoisseur, who keeps her finger on the pulse of the blawgosphere.  She found this post interesting, and that was good enough for me to check it out.

Jordon, as appears to be his typical approach to a post, begins by positing a fascinating challenge to our assumptions initially raised by Seth Godin and Scott Karp.  They use the music and media industries to make a point, both of which are thriving in a generic sense while the traditional outlets, recording companies and newspapers themselves are dying.

First, the market and the internet don’t care if you make money. That’s important to say. You have no right to make money from every development in media, and the humility that comes from approaching the market that way matters. It’s not “how can the market make me money” it’s “how can I do things for this market.” …

But the market should care, you say. What would happen if we didn’t have the newspapers playing their Fourth Estate watchdog role? Here’s the bitter truth — the feared loss of civic value is not the basis for a BUSINESS.

Jordon then extends the analogy to the law.

You can probably guess where I’m going with this: the legal services marketplace doesn’t care if lawyers make money. The irreversible changes that our industry is going through, the steady advancement of globalization and technology, the growing legions of competing products and producers — the earning expectations of lawyers and the atrophied business models of law firms mean nothing to them. What lawyers want is about as relevant to these forces as the farmer’s crop is to the tornado bearing down on him.

On its surface, he’s got a point: you can’t argue with a tornado.  Still, this flies in the face of lawyer truth, since we believe that we are important, worthy, even critical to society.

But the client should care, you say. What would happen if we didn’t have lawyers playing their role to uphold standards and protect the rule of law? Here’s the bitter truth — the feared loss of civic value is not the basis for a BUSINESS.

The problem with the legal industry, as with the music and newspaper industries before it, is the sense of ENTITLEMENT.

But the law is not music or media.  Technology has provide alternative means of entry, with neither great cost nor effort, to provide a substitute for both industries.  To believe that technology has done the same for law would be a grievous mistake. 

While anyone can opine about the law (such as I do here), the value of their information is no greater then the extent of their knowledge and experience.  Technology has spread legal information far and wide, but it’s a fools gold.  While a lawyer can assess the merit of legal information, non-lawyers lack the basis to determine whether some article, blog post, podcast of whatever is right, wrong or somewhere in between.  They can enjoy any song they like off the internet, but they cannot pick and chose law at will.

Almost any court decision written can be found somewhere online.  But that doesn’t mean every reader of the decision can make sense of it, or use it to their advantage.  That requires a level of knowledge that cannot be gained via technology.  The same is true of lawyers, who can promote themselves online at will with little fear of contradiction, yet without the peer vetting that exists in the well of the court.  Bloggers are often subject to peer oversight, since other lawyers can rip silly arguments to shreds, but websites are immune.  Just yesterday, I read the website of a lawyer who made claims of having held certain positions that I personally know to be utter baloney.  Just yesterday, WindyPundit exposed a half-truth in a lawyer’s website that turned the meaning of a claim upside down.

But the casual reader, and particularly the non-lawyer, neither know of nor understand that any of this is happening.

Unlike music or media, the law is not readily accessible because it requires far more than just reading or repeating the words.  Indeed, technology may well prove to be the most dangerous thing to a greater understanding of the law, giving people the false impression of a being better informed when in reality their understanding is lacking.  A little knowledge is dangerous.

Just as reading about open heart surgery isn’t the same as performing it, reading about the law isn’t the same either.  This is not to say that an education couldn’t be delivered to every man, woman and child sufficient to replace lawyers and enable them to capably advocate for themselves.  It could happen, but it hasn’t yet.

It’s not the feared loss of civic value that matters, but the loss of a skillset necessary to competently perform the task.  As long as the skills that distinguish lawyers remain unavailable to others, people will seek our representation.  Technology has yet to find a way to make everybody a lawyer overnight.  That’s not to say it won’t happen, just not yet.

On the other hand, Jordon’s argument that lawyers feel entitled, contrary to the will of the market, has vitality.  We tend to make an unwarranted leap from the fact that we have something people need to the fact that they want to pay us what we desire.  While law is not merely business, that is not to say that it doesn’t have certain business-like components.  Pricing one’s services to meet the demand of the market is an inherent reality for lawyers, just like everyone else.  You can insist that every defense of a felony is inherently worth $1 million, but chances are good that you will have a lot of free time on your hands. 

Whether I agree with everything posted at Law21 is irrelevant.  Jordon’s posts have made me think about a great many things, offering some bold ideas and challenging many preconceptions.  You can’t ask for more from a blog. 

The gravamen of the argument against the Lori Drew indictment/conviction is often misunderstood, but Orin Kerr helps to clarify by posting the Volokh Conspiracy’s new Terms of Service.  I guess that’s why he’s a professor and I just riff off his good ideas.

1. You will not post comments that are abusive, profane, or irrelevant. Civil and relevant comments only, as indicated by our comment policy.

2. You are not an employee of the U.S. government. Yes, that includes postal service employees, law clerks, judges, and interns. We’re a libertarian-leaning blog, and we’re for the private sector only. Government types, keep out.

3. Your middle name is not “Ralph.” I’ve always thought Ralph was a funny name, and even odder as a middle name. No one with the middle name “Ralph” is welcome here.

4. You’re super nice. We have strict civility rules here, and this blog is only for people who are super nice. If you are not super nice, as judged by me, your visit to this blog is unauthorized.

5. You have never visited Alaska. Okay, this one is totally arbitrary, but it’s our blog and we can keep out who we want. Alaska visitors are out, too.

You need not agree to these terms.  You don’t even have to read them, since knowing that there are such a thing as terms of service are sufficient to compel you to adhere to them, like it or not.  You’re here, you’re reading, you’re mine.

As terms of service go, Orin’s are relatively reasonable.  It’s not like he requires you to wear seersucker shorts while reading.  Granted, number 3 may be pushing it, especially for those who have a family inclination toward using the name Ralph sandwiched between two other, more common names.  I have a friend named Ralph, and I would make an exception for him because I like him so much, but it’s his first name so he’s safe.

Sam Liebowitz, in a comment here, questioned my oft-argued position that what Lori Drew did failed to violate Section 1030 of the Computer Fraud and Abuse Act.  Sam is a very astute criminal defense lawyer, so I take his thoughts with the utmost seriousness.  If he questions my position, I think hard about what he says.

Aside from the express purpose of 1030 preventing computer hacking, the unlawful access element requires a person to “intentionally accesses a computer without authorization or exceed[] authorized access.”  The basis for this allegation that Drew lacked authorization was her violation of the Terms of Service.  This makes the “authorization” element of the law a moving target, to be determined by the site owner’s whim.  There is no requirement that TOS be rational or reasonable.  There’s no requirement that they comport with some notion of “common sense,” as so many people admire.  They can be anything the site owner wants them to be.  And they comprise, if this is indeed the basis for authorization, the basis for a crime.

Unlike Orin, I have only one rule for Simple Justice.  I concede it’s a rather broad rule, and I apply it arbitrarily, which I’m allowed to do since I’m not the government and under no duty to be consistent or rational.  I interpret the rule as I want, and it changes from time to time, often moment to moment.  But that doesn’t matter, since it requires no one’s approval, or even appreciation.  If you’ve opened this page, you are now subject to my rule. 

No, by reading this post you have done me no harm, no matter who you are or how you behave.  If you comment (in which case my rule applies with double force), and for whatever reason I decide that I don’t like your comment, I can delete it, alter it, edit it, change it, or make you appear to say something like “I have big ears.”  Being the blog owner, I have the ability to do any of this, should the whim strike me. 

One commenter informed me that deleting the URL attached to her comment impaired her intellectual property rights (I swear this is true), since she had a right to gain visitors to her website by virtue of commenting here.  So I fixed her wagon, since I’m not putting up with any commenter laying claim to rights in my blog.  I can do that.

I personally would like to know who every person who reads Simple Justice is, including every detail about you.  No, not just salient details, but salacious ones as well. Photos would be helpful.  Hey, it’s my blog and that’s what I want.  So all of you who deny me this information are going on my naughty list.  I’m giving you notice, though I don’t have to.

And then there’s the people who are smarter then me, make better arguments then me, point out something stupid I’ve written and make me look foolish.  You folks are deep trouble.  If this is my blog, I get to look like I know what I’m talking about, so you aren’t allowed to show me up.  And you know who you are, so don’t try to hide now.  Too late.

I can do all this, if I’m so inclined.

What I cannot do is make you, dear reader, dear commenter, dear human being, a criminal because of my arbitrary and capricious whims as expressed in my idiosyncratic terms of service.  I cannot turn you from good person to venal.  I cannot make your perfectly reasonable expectations illegal by my wholly unreasonable ones.  I can be as wacky as I want to be here, but I cannot use the criminal laws of Title 18 of the United States Code to back me up. 

Until now, after the Lori Drew case.  Suddenly, all the absurd nonsense that I might decide to establish as my terms of service take on actual meaning, if this conviction is to stand.  It sounds ridiculous when put his way.  That was Orin’s point.  That’s my point.  I hope this has helped to clarify the problem

My posting today, the Friday after Thanksgiving, began a little later than normal.  I was preoccupied, having gone out to a store to make a purchase.  You see, there was something I wanted to buy that was offered at a ridiculously low price, and I wanted to get it while I could.  Quantities were limited, you know.  Fortunately for me, when I arrived I found that nobody else wanted to buy the same item.  That’s the story of my life.

But the store wasn’t empty.  Not by a long shot.  It was full of people who were loading up on one particular big ticket item, a flat panel television.  When I say loading up, I mean people had these big carts with two, three of them on board.  Three big screen flat panel TVs!  That must have been one heckuva good price.

As I watched them fight over who would get the last 7 dozen televisions, I couldn’t help but wonder how many were behind on their mortgage, formerly employed by Goldman Sachs or insured by AIG. 

In the past, I would have thought this was none of my business.  Hey, it’s your money.  Spend it any way you want.  But now, I see it as my business, since it’s my money being used to finance your home, business and the services you buy.  The money you’re spending on those 3 flat panel TVs has been freed up because my money is being used in its place.

If my understanding of current economic thought is correct, this is precisely what our government wants to have happen.  Let them pay for the mortgage so you can buy TVs.  Once consumers start buying more TVs, the flow of commerce will regain momentum, build upon itself, and reinvigorate our economy.  Then we’ll all be happy again.

Still, I didn’t get a warm and fuzzy feeling watching those 52 inch High Definition beauties fly off the shelf, and not just because I wasn’t going to drive home with one.  I can’t seem to shake the feeling that I’m the only one who has missed the boat, or more precisely, wasn’t offered a ticket to the boat.  Did I do something wrong?  Did I blow it?  Why am I feeling so left out?

By the end of the day today, television news (seen on brand new 52 inch flat panel TVs) will be telling us whether this was the best, or the worst, Black Friday ever.  The stock market will react with joy or dread, or perhaps both according to whatever the traders ate for lunch.  Either way, I can’t figure out which outcome is better for me, you or anyone else.

Consumerism, especially the crass kind that makes it’s home on Long Island, is an evil.  No, not to enjoy material possessions per se, but to need them so desperately to enhance one’s self worth that one would risk the kids’ college or the house to get them,  Getting back to the stores today would suggest that consumer confidence has returned, and the fear that they will need that last penny to buy bread is gone.  It would also make me wonder whether people are willing to live without bread, as long as they have a flat panel TV or three.

I almost felt unAmerican walking out of that store in the early morning without a flat panel TV.  I actually thought to myself, for just a moment, that I really should check out the price, and if it was that good, maybe I should grab one too.  But then I said to myself, I don’t need a new TV.  My old one, which is the size of a Volkswagen Beetle, works great and gets all the stations I like to watch.

And besides, I ought to keep my purchases under control, because you never know what bank is going to need a bailout tomorrow,

Update:  From @NikiBlack and @RickHorowitz, this nightmare at a Long Island Walmart :

A worker died after being trampled and a woman miscarried when hundreds of shoppers smashed through the doors of a Long Island Wal-Mart Friday morning, witnesses said.

The unidentified worker, employed as an overnight stock clerk, tried to hold back the unruly crowds just after the Valley Stream store opened at 5 a.m.

Witnesses said the surging throngs of shoppers knocked the man down. He fell and was stepped on. As he gasped for air, shoppers ran over and around him.

But hey, it’s for the economy, right?  But that’s not all:

Police did say there were several injuries but weren’t more specific.  Jessica Keyes was among the shoppers. She told the Daily News she saw a woman knocked down just a few feet from the dying worker.

“When the paramedics came, she said ‘I’m pregnant,'” Keyes said. Paramedics treated the woman inside the store and then, according to Keys, told the woman: “There’s nothing we can do. The baby is gone.”

Happy now?  So what exactly do you think as you relax, watch your 52″ flat panel, and clean the blood off your screen?

A speed trap is a law enforcement tool for catching the unwary and unsuspecting, usually having little or nothing to do with any underlying public safety function but to make a quick buck.  As this New York Times article suggests, the extant application of the Lori Drew non-decision has created the digital version of the speed trap, the Terms of Service.

MySpace’s terms of service require users to submit “truthful and accurate” registration information. Ms. Drew’s creation of a phony profile amounted to “unauthorized access” to the site, prosecutors said, a violation of the Computer Fraud and Abuse Act of 1986, which until now has been used almost exclusively to prosecute hacker crimes.

While the Internet’s anonymity was used in this case as a cloak to bully Megan, other users say they have perfectly good reasons to construct false identities online, if only to help protect against the theft of personal information, for example.

“It will be interesting to see if issues of safety and security will eventually trump the hallmark ideology of free, largely anonymous or pseudonymous participation in cyberspace,” said Sameer Hinduja, a professor of criminology and criminal justice at Florida Atlantic University.

There has been no dearth of discussion about the relative merit of open versus anonymous blogging and commenting,   As many have argued persuasively, there are some really good reasons to keep one’s name off the page, allowing people to post things that they feel they could never say if they had to pay the price with their employers, constituents or clients.  The shield of anonymity (or pseudonymity as if more often the case) allows people to get some very interesting and important ideas out there.  It also allows 12 year olds to pretend to be 39 and curse a lot without Mommy knowing. 

The fear that the government will not take up arms against pseudononymous users is silly.  They aren’t gunning for short guys who fill out their profile saying they stand 6 foot 4, or women who chop a few years off their age.  The problem is that this is a speed trap, available for the government to pull out of its bag when it needs to “get” someone. 

Under the current verdict in the Drew case, the internet is replete with misdemeanants.  People provide less than 100% accurate information in filling out their profiles all the time.  All the time.  This makes many, even a majority perhaps, of Americans criminals.  It’s bad when a law is interpreted in such a way that most people are criminals.

Since it’s unlikely that the government has any intention of trolling the profiles of MySpace users in search of inaccuracy, and lacks the federal courtrooms or jail beds necessary to deal with it, most of us need not fear the Lori Drew application.  But do something that the government really doesn’t like, or do something that raises cackles elsewhere because there’s no ready law available to make you pay, and you’ll find yourself in this speed trap.

Nobody ever realizes that they’re in trouble for doing what everybody does until they see the lights flashing behind them and hear the chirp of the siren.  By then, it’s too late.

The blogging as free speech debate heated up this week with the filing of a federal complaint by the Wolfe Law Group, a construction law firm, against the Louisiana rules against lawyer advertising.  The gist of the complaint is that the rules inhibit free speech by lawyer blogs:

The lawsuit seeks to prevent the enforcement of Louisiana’s new advertising rules, scheduled to take effect on April 1, 2009. The Louisiana advertising rules are some of the most aggressive in the nation, and Wolfe Law Group’s suit argues that the rules go too far and restrict an attorney’s right to freely speak about its trade.

Wolfe Law Group argues that the new rules effectively prevent a lawyer from advertising its services through online mediums, such as Google’s AdWords, as the rules also restrict an attorney’s ability to engage in discourse with colleagues, clients and the public through online bulletin boards, blogs, twitter, and other online communities and forums.

I am not anti lawyer advertising. I view many state’s attempted clamp down on lawyer advertising as the old boys trying to prevent upstart law firms from getting work via cost effective client development or judges who find personal injury lawyer ads distasteful. I’m also all for law firms protecting our right of free speech. But I am not about to leave my common sense at the doorstep when looking at proposed ethics rules and the risk that they outlaw lawyer blogging.

My prickly demeanor notwithstanding, charitable involvement has long played a vital role on my life. I’ve enjoyed a blessed life, and I know it.  Others have not, and I want to help.  It is my hope that you, dear reader, feel the same, on this Thanksgiving day and every day.

This year presents grave problems for charities, as it is far harder to part with donations when you are suffering as well.  For some, it simply won’t be possible.  But for those who can, it’s critically important that you reassess where you give, as all charities are struggling in this economy, and most will fall far short of their goals.

There are two hard questions that must be asked this time around.  How does the charity seeking your donation spend its money, and how critical is the purpose of the charity at this moment in time. 

During the course of my involvement in charitable work, I’ve come to learn that some “charities” are so fundamentally wasteful with their money, even to the point of being called shams, that donating to them is little different then throwing your money in the toilet.  I’m going to address this based on my experiences.  Yours may differ. 

Given that charities may well die this year from lack of donations, it is critical that you know that your contributions are being put to the use that you intend, to help the cause the charity purports to represent.  This may require a little digging, perhaps spending a few minutes to check out CharityWatch.org, the website of the American Institute of Philanthropy, to see what percentage of donations actually make it to the cause.  However, many smaller or local charities are not included, so you may have to do the legwork yourself.

One local charity does a brilliant job of marketing itself and its cause, collecting a huge amount of money.  None of it actually goes to the purported cause.  Zero.  The funds are spent entirely on salaries and expenses, self-promotion and lobbying to maintain its influence and continued existence.  You would never know this from its literature, which is very glossy, very professional and very false.  Is this where you want your contributions to go?  If not, then you need to know this.

In yesterday’s mail, I received more than a dozen holiday solicitations.  All but one spoke to the hard times we face, and the harsh reality that it is struggling to fulfill its mission.  One, in stark contrast, touted that it had just squandered a pile of money on an utterly pointless vanity expense, wholly unrelated to its mission.  Apparently, those running this charity, which happens to do good and important work otherwise, thought it more important in this time of need to create a grander self-impression than to serve the purpose for which it exists.  Do you want your contributions to support the underlying goal, or to pay for someone’s vanity? 

The second issue that needs to be addressed is how critical the cause is in this time of scarce resources.  While creating a baseball cap museum may be deemed by some to be worthy during flush times, when charitable contributions are so plentiful that they can be spent on any wild idea that generates sufficient appeal to support it, this is a year to think in terms of life and death.
 
The mission of a charity may well be important and worthwhile, but it has to be viewed in relation to the irreparable harm that will result should the charity fail to fulfill its mission.  This year, it means that people will die for lack of food, shelter, medical care, warm clothing and other necessities of survival.  Not to denigrate many other worthy purposes, but imminent death trumps a lot of good causes.

Regardless of your expectations of government to help the needy to survive, it will fall short.  No criticism of this failure will help a human being to survive the cold tonight.  We can argue about why we have hungry in so rich a nation another day, but need to keep that person alive in the meantime.  So I ask you to bear this in mind when deciding where to contribute.  No matter how important other causes may be, and they are important, this is a year for charitable triage. 

To my readers, to my friends and even to the many who don’t like me one bit, I wish you a happy Thanksgiving.  And I ask you to give thanks to others as well.  Just do it wisely.

When Marcelo Lucero, an Ecuadorean immigrant, was murdered, allegedly by seven Patchogue-Medford High School students, it exposed a depth of ugliness that many refused to believe could exist in the gentle suburbs.  The aftermath of denials, explanations, scape-goating and fingerpointing has exposed why this could happen without anyone seemingly noticing how deeply and virulently the hatred had grown.

This New York Times editorial makes an important point, that the indicators were everywhere that hatred toward immigrants was explosive, and were ignored by police disinclined to deal seriously with marauding bands of children on the hunt for immigrants to harm.  They knew or should have known that a murder was only a moment away, and pretended not to notice.

There are real issues that exist between long-time residents of Long Island who have seen a huge influx of immigrants, all of whom in the minds of residents are tarred as illegal though many, if not most, are not.  They have disrupted a suburban lifestyle that residents worked hard to achieve, with their cultural differences, lack of assimilation and conduct that is simply course, crude, at times offensive and at minimum disruptive.

But the anger at lingering groups of migrant workers standing around a street corner hoping for someone to come along with a landscaping job for the day, urinating against a wall and throwing garbage and insults around at will, is not an excuse for murder.  Anger turned to hatred.  Hatred turned to violence.  Violence turned to murder.

The sides in this issue should be ashamed.  The bystanders who watched this happen should be ashamed as well.  One fed the flames of hatred, while the other watched the fire grow and stood silent.

The alleged perpetrators of this murder were kids.  High school children are incapable of coming up with hatred to this degree on their own, and this no doubt reflected the seething hatred that permeated their homes, families and community.  Did they hope to turn their children into killers?  Was the conduct of these immigrants worthy of violence and murder?  Are they so consumed by their hatred that they are unable to comprehend that this was outrageously above and beyond the issue of residual NIMBY Long Island anger at anything that interferes with the quiet enjoyment of community?

Apparently so, as demonstrated by the continuing controversy.  There remains no grasp of how deep, how out of control, how wrong this has grown.  If there was any inkling, then instead of pointing fingers and making excuses, people would lay down their arms, their hatred, to recognize that it has gone way too far, and that they have now harmed everyone in the community.  This isn’t happening.

The death of Marcelo Lucero doesn’t have to be in vain.  It is, because no lesson has yet been learned.  Another hate crime was perpetrated last night, when “a group of eight youths in Patchogue shouted ethnic slurs at two Hispanic men coming out of a restaurant on East Main Street, then pushed one of them.”  It was broken up by a local code enforcement officer who happened to be passing by.

This is a disgrace and disaster, and must be stopped.  It’s time for extreme intervention by Suffolk County Executive Steve Levy.  If he’s not up to the task, then we need to go higher up the chain.  But we cannot wait for another murder to confront this problem head on.

An indictment was handed up by a Harvard University grand jury against the Yale Precision Marching Band for crimes against Crimson sensibilities.  Well, not exactly an indictment, but the closest thing one gets in the world of Ivy League marching bands.  From the New Haven Register (via Norm Pattis’ eagle eye):

A little good fun between hated rivals apparently went too far last weekend, leading to the suspension of the Yale Precision Marching Band.

Adding insult to the injury of Harvard’s 10-0 defeat Saturday in The Game, which was held in Boston, Yale University’s director of bands, Thomas C. Duffy, suspended the marching band Monday because of a “completely inappropriate and highly offensive” prop used during the halftime show, according to the Yale Daily News.

The newspaper quoted an e-mail Duffy sent to band members: “I was personally embarrassed and offended, and professionally compromised. I am suspending the Yale Precision Marching Band from all activities and performances, effective as of this very moment.”

Now this requires a little a lot of background to understand.  You see, the name, Yale Precision Marching Band, is itself part of the issue.  The band is anything but precise.

The name Yale Precision Marching Band is itself somewhat of a joke. The band calls itself a “scatter band,” one of 12 in the country, according to its Web site. It does not, as most marching bands do, “spend their time on field spelling their name in script or making a swirly line formation while playing the complete works of Andrew Lloyd Webber.”

“We perform halftime shows composed of comedy segments, during which we spell witty things on the field and play really cool rock music.” it says.

While plebeian school bands march about in very specific steps, and spell out fascinating things like “Go Team” and “Defense”, bands like Yale’s (following the lead of their student athletes, another oxymoron) challenge wit by using their performance to take on controversial issues or just impugn the dignity of their opponents’ clothing.  One could see it as elitist.  I think it’s very funny.  No one, but no one, takes it very seriously. 

Except, apparently, Yale band director Thomas Duffy.  One would think he would know better.  This is the sort of thing one expects from the Yale Precision Marching Band:

The antics of the band are legendary, and the band is happy to brag about past sketches: Saddam Hussein as a Yale professor, digging up missing Teamster leader Jimmy Hoffa on the 30-yard line, and “the unforgettable George W. Bush sketch, which involved a line of white-shirted bandies and the playing of Eric Clapton’s ‘Cocaine.’”

Then there was 1978, when band members marched with their pants around their ankles.

Come on.  That’s pretty darned funny.  You can’t take this seriously.  You just can’t.  So what did the band do to make its own director “personally embarrassed and offended, and professionally compromised,” unbelievably strong language under any circumstance? Well, it’s hard to say, exactly.

It was unclear what element of the band’s prank crossed the line, but The Daily News said the band used as a prop “a graffiti-covered replica of the Berlin Wall, (which) was the centerpiece of a halftime show that portrayed Harvard as a Communist empire.”

The Daily News quoted an e-mail by Rosa Li, the band’s drum major, who said the wall contained “some genuinely inappropriate things on it (i.e. more inappropriate than ‘sucks’) that I would have made y’all paint over, had I seen it.

“That being said, I don’t think much, if any of it, would have been visible or noticed from the stands,” the e-mail said.

Did they call John Harvard a commie for letting new admits in without tuition?  Seriously, what could have been done to evoke this degree of outrage?

The worst part about this debacle is that in the battle of wits, Harvard whupped Yale’s butt.

Harvard Band Director Thomas Everett said he didn’t notice the Yale halftime show because he was preparing for his band’s show, in which it portrayed a trip back in time to “uncreate Yale so Yale had never existed,” Everett said, and sought to “topple the Bulldog King.”

Hah!  Everett nailed them with that response.  He didn’t even notice. There could no accusation more damning, no verdict more clear.

The Yale Precision Marching Band, for better or worse, is an effort at wit and Ivy League hi-jinx.  Granted, what passes for humor may not always meet expectations.  But for crying out loud, it’s essentially impossible for anyone to be offended by anything this band can do.  If anything, the worst thing it could do is be boring.  And fortunately for all of us, boring is not a crime.  Duffy, get over it.