A popular myth amongst the law and order ignorati is that while law-abiding citizens know little to nothing about how the “system” works, criminals know how to play it like a violin.  While I’ve always found a certain humor in this attribution of malevolent brilliance to criminals, it’s not even close to reality.  The Appellate Division, Second Department decision in Lapidus v. State of new York makes the point in a sad, pathetic case.

Suing the state for negligence, Barbara Lapidus was sent to prison as a predicate felon for sale of narcotics.  Her case was dismissed because of the “intervening event” of her failure to contest her status as a second felony offender.  The Second Department reversed.

Lapidus, now 54, lived the typical, miserable life of a junkie.  Broken home. Dropped out of school.  Turned tricks to buy heroin.  When she was arrested with her boyfriend in 1987, she was released and never came back.  The boyfriend went to trial and lost.  The clerk mistakenly marked the file that both Lapidus and the boyfriend were convicted of felony assault.  While she had many arrests and convictions, none were felonies.  Except this one.

Cut to 1997, when Lapidus was busted for sale. 

Prior to sentencing, the People filed a predicate felony statement (see CPL 400.21[2]) alleging that on January 9, 1989, Lapidus had previously been convicted of the felony of assault in the second degree in Kings County. When Lapidus appeared for sentencing on the New York County indictment on January 13, 1998, she was arraigned on the predicate felony statement, and advised of her right to controvert any of the allegations in the statement and to challenge the constitutionality of her alleged prior conviction. However, when asked if the allegations set forth in the predicate felony offender statement were true, Lapidus answered “[y]es,” and stated that she did not wish to challenge the constitutionality of her prior conviction. She . . . was sentenced, in accordance with the prosecutor’s recommendation, to [the minimum] term of 4½ to 9 years of imprisonment.

They way this generally works in the real world is that Lapidus’ lawyer would go through her rap sheet with her and find out about her priors.  He would expect her to have some clue about her previous convictions.  The frequency with which a defendant tells his lawyer that he doesn’t remember, or isn’t sure, or just admits or denies things that aren’t true is shocking.  Lapidus, when put through the mantra of the predicate felony allocution, acknowledged her prior felony conviction that never happened. 

One might expect that her lawyer would have, should have, done something to verify the prior conviction.  But in the absence of the defendant denying it, there would be no reason to pursue it.  Defendants with prior convictions are hardly unusual.

Prisons, like courts, are bureaucracies, and bureaucracies need their paperwork.  So the kind folks at Bedford Hills needed a transcript of the judgment of Lapidus’ prior conviction.  It was nowhere to be found, so a court clerk did what any good clerk would do.  Created a duplicate showing Lapidus having been sentenced to 1½ to 4½ years that she had never served, and DOCS calculated her total sentence to be 6 to 13½ years.

Cut to 2003.  Lapidus, now presumably sober and at the end of her sentence, started asking questions. 

At some point, Lapidus obtained assistance from a legal clinic operated by the Columbia University Law School. According to Lapidus, it was the inquiries made by two of the clinic’s dedicated law students that led the Kings County Supreme Court Criminal Term Clerk’s Office to conclude, in April 2004, that an error had been made, and that she had never been arraigned, convicted, and sentenced on the 1987 charges that resulted in her purported 1989 conviction. She was thereafter arraigned on the 1987 indictment on April 20, 2004. A few days later, on April 29, 2004, Lapidus pleaded guilty to assault in the second degree, and was sentenced to a term of 10 days of imprisonment. On May 4, 2004, she was resentenced, nunc pro tunc, on her 1998 conviction of criminal sale of a controlled substance in the third degree, to an indeterminate term of 1 to 3 years of imprisonment as a first time offender. Lapidus was released from custody that same day, having been imprisoned for more than six years.

Lapidus sued the state for negligence, both the original mismarking of the file to show that she had been convicted as well as the creation of the “duplicate” judgment in the absence of an original in the court file.  She explained that in 1987, when she pleaded guilty, she was “sick” as junkies often are, and just assumed and believed that she had been convicted.  She didn’t have a clue, and assumed that it had happened or the court wouldn’t have said so.

The trial court granted summary judgment to the state, based upon Lapidus’ failure to contest the predicate felony conviction.  The Appellate Division reversed.  After holding that the clerk’s failure was ministerial, and a discussion of the “elusive” concept of proximate cause and intervening events, the court held:

This is not a case where the alleged intervening act, as a matter of law, was independent of and divorced from the original negligence. Rather, as Lapidus argues, she never would have been placed in the position of having to admit or deny that she was a predicate felon had not a court employee mistakenly recorded on her court file that she had been convicted of assault in the second degree and sentenced to a term of imprisonment for that crime. Thus, the conduct alleged to be an intervening act flows from the original alleged negligence of the part clerk, and not, as the State asserts, from “the prosecutor’s and court’s mistaken recital to claimant in 1997 that she had a prior felony conviction.”

The outcome produces both positive and negative incentives.  Clearly, courts (and their clerks) should be responsible for getting things right.  This isn’t the sort of thing where sloppy recordkeeping should be condoned, given the impact that court records can have on people’s lives.  On the other hand, the point of the predicate felony hearing is to provide the defendant with an opportunity to controvert the allegation, and being a junkie shouldn’t be rewarded either by a pass on taking some modicum of responsibility for the number of felony convictions one has accumulated.

The Second Department, dealing with these very sticky facts, reached the right decision for two reasons.  First, because it was the failure of the system that set the wheels of error in motion and placed Lapidus in the position of making a grievous mistake.  And second, because we have, and should have, greater expectations in the accuracy of the court than in a junkie defendant. 

But if you think that defendants have a clue what happens in court, Barbara Lapidus can tell you that it’s just not true.

H/T Judicial Reports, the source for New York reversals.

I can’t remember exactly when polling became so significant in presidential elections.  It’s ubiquitous today, but it wasn’t always that way.  No doubt it seemed like a fine idea when the media began incorporating polls in their broadcasts, informing people of how a candidate was doing.  But there are a number of impacts on the process that is both disturbing and improper.

The point hit me hard as I would flip back and forth between Fox News and CNN, with Hannity proclaiming how the polls show McCain taking the lead as people everywhere mumbled “Ayers”.  On CNN, the polls showed Obama still on top.  The polls are now just another weapon in the fight for control of the hearts and minds of Americans, and the media is airing the candidates’ promos for free.

Polling has become part of the psychology of campaigning.  If Obama gets too far ahead, Democratic strategists fear that it will produce lower turnout since voters think he’s got it won without their vote.  If McCain gets too far behind, Republican strategists fear that voters won’t show because his loss is a done deal.  Some undecided voters want to be on the side of the winner, so maintaining a lead in the polls means winning some extra votes.  Others feel for the underdog, so being just a little behind can buy some extra votes.

Campaigns are all about psychology rather than merit.  If this wasn’t true, there would be no such thing as negative campaigning.  No person of integrity would ever seek office on the basis that he’s not as bad as the other person.  Polls are just another piece of the psychological puzzle that strategists deal with in the course of formulating their strategy. 

The networks have agreed to withhold proclaiming victors based on exit polls before the close of voting in order not to influence the outcome of the vote.  Ironically, exit polls have proven notoriously unreliable.  Yet the daily, perhaps even hourly, announcements of the latest polls remain prime fodder for newscasts and all-news channels.  Of course, the polls vary wildly according to what channel you watch, be in “fair and balanced” or fact-based.

That campaigns rely heavily on polls to ascertain whether their message is effective makes perfect sense, and seems a good use of the tool.  But that media polls are not merely about reporting on the phenomenon, but one of the factors that influence it, we would be far better off if they just kept all their polls to themselves and put people to the task of deciding who to vote for without this prong of the psychological manipulation game coming into play.

This morning, strategists explained who would win what, and the impact that would have on numerous races.  It was a somewhat technical explanation of electoral votes and states.  Why?  This does nothing to further inform the public, but merely to make it appear that the election is a forgone conclusion and inappropriately influence viewers.  Who is a ahead (at least for the moment on this channel) should be of no consequence whatsoever in the decision. 

Politics doesn’t need the media’s help to be debased.  The Rev. Wright/Anti-Obama commercial by the GOP PAC aired last night was sufficient to demonstrate how little faith the GOP has in John McCain, that it will override the judgment of the man who wants to be president.  If his own don’t respect him . . . 

If all goes well, tomorrow night we will know who wins what about the time I go to sleep.  That’s as it should be.  Today, I would appreciate it if all the pundits and pollsters would just shut up.

Adam Liptak wrote about the impending Supreme Court argument in Federal Communications Commission v. Fox Television without ever mentioning the word at issue.  It was a remarkable feat.  If I wasn’t already aware of the content, it would have taken me a few paragraphs to figure out what he was talking about, but then I can be a bit slow at times.

The Supreme Court specializes in law, not lexicography. But it will soon have to consider the meaning of that most versatile of four-letter words.

The Oxford English Dictionary’s three core entries on the word — noun, verb and interjection — are about six times as long as this article. That doesn’t count about 30 derivations and compounds, all colorful and many recent. The nimble word, the dictionary tells us, can help express that a person is incompetent; that another is not be meddled with; that a situation has been botched; that one does not have the slightest clue; and, in a recent addition, that someone has enough money to be able to quit an unpleasant job.

You know the word I mean.

We all know the word he means, though it isn’t exactly obvious from his description.  I laughed and laughed when I first listened to George Carlin’s comedy routine, the seven dirty words you can’t say on TV.  It made its point for me, that words are nothing more than sounds uttered from the mouth, to which others attribute meanings for which they alone are responsible.

Many people find particular words offensive.  Some because of the pejorative connotations.  Others because the origins were sexual.  Still others because they are just “bad” words.  But words lack the ability to be bad.  They don’t, however lack the ability to offend.

Back in the old Ozzie and Harriet days, curses were not to be heard on television.  Then again, married couples didn’t sleep in the same bed either.  A naive purity was the image intentionally projected, to save the most sensitive amongst us from discomfort.  No one should be forced to hear or see anything that could be arguably untoward. 

I do not use curses in my writing here.  I do utter them on occasion, and may include them in private writings, but I believe that I can express my thoughts without them otherwise.  I’ve seen others who use them in a near constant flow, some because they hope to desensitize others through exposure.  Others because they have not matured beyond 12 years and think cursing is a really cool way to express themselves.  Still others because the use of certain words is so culturally pervasive that they have never thought about not using them.

As Liptak explains, the gist of the FCCs argument is that these bad words cannot be separated from their sexual connotations.  As the Second Circuit decision makes clear, there was absolutely nothing sexual about their use:

The federal appeals court in New York disagreed. “As the general public well knows,” Judge Rosemary S. Pooler wrote for the majority last year, four-letter words “are often used in everyday conversation without any ‘sexual or excretory’ meaning.”

Bono’s exclamation, Judge Pooler added, is “a prime example of a nonliteral use” that has “no sexual connotation.” In support of that proposition, she cited remarks from President Bush (about the need to get to stop doing, uh, stuff) and Vice President Dick Cheney (urging Senator Patrick Leahy to start doing something not biologically possible).

Even Judge Pierre Leval, in dissent, recognized that the sexual argument was a sham, concluding instead that the inherent offensiveness of the word, regardless of reason, was enough of a reason to ban it from television.

But, whatever the speaker’s intentions, Judge Leval added, “a substantial part of the community, and of the television audience, will understand the word as freighted with an offensive sexual connotation.”

I would be just as happy if there was far less, indeed no, cursing on television.  It’s just a cheap use of language, concealing cloudy, lazy thought and expression.  There’s no need for it and it enhances nothing.  And it has long since lost any overt connection to anything sexual, so let’s please put that tired claim to rest. 

And there was sex in the air, the commission said, when Nicole Richie, at a third awards show, veered from these scripted comments: “Have you ever tried to get cow manure out of a Prada purse? It’s not so freaking simple.” Ms. Richie did not say “manure,” and she did not say “freaking.”

There is nothing Ms. Richie has to say that evokes any sexual thoughts whatsoever.  Ever. 

But this isn’t a decision on whether we want to hear television characters or performers curse more.  It’s a decision about whether the censorship that we took for granted in the 1950s is still alive and well.  It’s a decision about whether we want our nanny at the FCC spanking TV networks for fouling our ears with these nasty words.

They are nasty, for the most part.  They aren’t necessary.  But they are just words.  If I don’t want to hear them, I can change the channel.  Thank you, FCC for your deep concern, but I will deal with my sensitivities myself and you can find something else to do rather than smack television networks for airing the word “fuck”.

And now, a basic lesson in censorship from George Carlin, courtesy of Howard Wasserman.

What would the Republican Vice Presidential candidate have to say if she received a call from French President Nicolas Sarkozy?

Hilarious, and she actually does a pretty good job . . . though she loses points off her “good sport” ranking from SNL for her rather abrupt ending.

Equal Time:  So why didn’t they try the same prank with Joe Biden?  Because no matter what happened, it would end up being tedious and boring.

The Texas Tornado, Mark Bennett, posits that every judicial decision involves “interpretation”, a word vilified of late as the tool of evil activist judges bent on legislating from the bench.  Judges shouldn’t “make law,” unhappy neo-cons screech, which Bennett “interprets” to mean that the “interpretations of the law gore the right-wing ox.”

We all agree that law needs interpretation. It rarely springs fully-formed from the legislature, so that its meaning is clear to all who read it. Even the U.S. Constitution needs interpretation — it doesn’t explicitly address every conceivable situation.

Obviously, this is true.  The enactment of a law is intended to be subject to judicial interpretation as it’s applied to the zillions of potential circumstances that arise afterward.  But for the need for interpretation, we would have grocery clerks sitting on the big bench rather than judges.  Who better to blindly apply law without introducing any thought at all?

To a large extent, the “activist” epithet, meant to be said with a snarl, much like that used when uttering the word “liberal”, is merely a vote against a particular outcome.  Don’t like the decision?  Then the judge is an “activist”.  Love it?  Then the judge is brilliant.  Whether they are “making law” doesn’t matter.  It’s whether you like the law they are making that counts.

But there are some lines beyond which judges should not cross, yet sometimes do, in the performance of their duties.  And this line exists regardless of how they rule, notwithstanding our bias in favor of decisions we like.  One such line is binding precedent, the bugaboo of the simple mind, which constrains a judge to adhere to the decisions of superior courts on a specific area of law.  While a lower court judge may note his disagreement with the precedent, and may search for a way around it, he is still constrained to follow it.  If not, we end up with totally incoherent law leaving everyone clueless as to how conduct will be treated.

Another line is the limits of statutory construction.  The first level of interpretation is the actual language of the law under scrutiny.  The words do mean something, and there can be no valid interpretation that ignores the language.  While the meaning of words is often the subject of dispute, and properly interpreted, judges cannot simply decide to read language out of a statute or ignore words when there is no question as to their meaning.

The bottom line of improper interpretation is when judges decide to search for ways to effectuate a policy choice that was neither the purpose of a law nor within the language of a law.  One of the most hated precepts is that the law does not provide a cure for all things that people can do to each other.  People believe that there has to be a law that makes bad things unlawful.  And if there isn’t on its surface, then judges should make it so.  After all, if conduct is bad, then it must be punished.  The Lori Drew case is a perfect example of this phenomenon.

The irony of judicial activism, as its been commonly understood by the public via disingenuous politicians, is that it’s a one way street, with liberal judges ramming their agenda down the throats of good people.  As Bennett says, this “is ignorant right-wing hogwash.”  They invented the slur and now own it to the exclusion of everyone else.  But I see unjustifiable activism happening far more frequently on the side of finding exceptions to clear mandates and prohibitions that are designed to achieve the goal of being “tough on crime.”  No one is cursing out these judges because they like the outcome.

So let’s stop confusing judges interpreting the law to apply to varying circumstances with “making law,” and let’s stop confusing outcomes we dislike with judicial activism.  This entire issue has been swallowed by mindless political expediency, concealing the problem when judges exceed their legitimate authority based upon whose ox is gored. 

The outcome isn’t the point.  Interpretation is either within the scope of judicial propriety or not, and it’s no better or worse because we don’t like a judge’s decision.

Scott Henson over at Grits for Breakfast posts a story about a Texan in Georgia who went to jail for refusing to pay a $7 tab at an all-you-can-eat buffet.  They like those buffets a lot in Georgia.  And Texans want good value for their fine dining.  So how did this marriage made in heaven go so wrong?

Fulton County authorities arrested 40-year-old Dan Linscomb of Texas City, Texas, last week for refusing to pay his tab at the all-you-can-eat Iron Skillet buffet in northwest Atlanta. Officials say Linscomb ate at the buffet and let his girlfriend eat from his plate.

The restaurant charged him for two $7 meals, which he refused to pay. Linscomb was taken to the Fulton County Jail on a charge of theft of service. Fulton County Sheriff’s Sgt. Nikita Hightower said Linscomb was released two days later after pleading guilty to a lesser charge of disorderly conduct.

Linscomb stood on principle.  It cost him two days in jail until he pled to disorderly conduct, though there is nothing to suggest that he was disorderly in his refusal to pay the tab, which makes the whole principle issue seem rather silly.  Unless he finally figured out, after two days in the hoosegow, that this was just totally foolish and his chances of becoming known as the Gandhi of all-you-can-eat-buffets were getting mighty slim.

Scott sees this as a failure of police authority to moderate petty disputes in the field.

Frequently police officers enter an emotional situation and find themselves moderating informally in some dispute between individuals where very little is helped, and the problems are only postponed or aggravated, by taking someone to jail.

I’d like to see community policing strategies give officers more dispute resolution authority in the field to resolve cases like this one, if possible without necessarily taking anyone to jail.

I think cops have always engaged in ad hoc dispute resolution of petty matters.  Traditionally, they have a great deal of discretion in handling disputes, and generally try to avoid turning them into police matters if they can.

But I see another problem with Linscomb’s arrest.  It’s a distinction that might not readily appear to the non-lawyer, but one that seems painfully clear to me.  Why do police become embroiled in matters that are purely civil in nature, and why, when they do, do they invariably side with the business over the individual?

While one might question whether Linscomb’s refusal to pay the tab for his girlfriend’s eating off his plate was tantamount to theft, it is not.  It is a civil question of whether the girlfriend’s nibbling constituted an obligation to pay an additional $7.  A contract question, and nothing more.  Contract questions are resolved by courts in their civil capacity everyday, and the parties involved always believe they’re getting the shaft rather than a bona fide dispute exists. 

But when the problem arises between a business, like the Iron Skillet, and one of its patrons, Linscomb, the cops are inevitably called to the scene.  Why?  Because there is an inherent bias by the police to protect their local businesses from disagreements with patrons.  Cops have no role to play in civil disputes, but they have overarching power in matters of crime.  Hence, the cops have a choice to make, whether to treat the incident as a dispute or a crime.  Here, they opted for crime and it cost Linscomb two days in jail.

Now Linscomb could have stood on principle by paying the $7 tab under protest, avoiding two days in jail, and suing the Iron Skillet to recover his $7.  He chose to be recalcitrant to the cops and paid the heavier price. 

Unlike Scott, I’m not inclined to place greater decision making authority in police to resolve disputes.  Aside from resolving civil issues being outside the police officer’s scope of authority, I am not inclined to place my faith in a police officer’s sensibilities as to how such disputes should be resolved.  This is true because of their inherent bias in favor of local businesses, but even more so because their opinion on who is right and wrong is utterly irrelevant.  Who cares what some cop thinks? 

So the base question remains why the police should be involved at all.  Simply because some local storeowner calls 911 does not convert a civil dispute into a criminal matter.  Had Linscomb tried to sneak out the door without paying the bill at all, then police intervention would be appropriate.  But he did not engage in criminal conduct by any stretch of the imagination.  Nor does disagreement with Linscomb’s position render his position criminal, or even quasi-criminal.  If anything, the police at the scene should have made sure that the parties had each others’ names and addresses (for service of process) and wished them both a good evening.

But police favor business over people.  So Linscomb spent two days in jail as a matter of principle over a $7 disagreement.  The police have no business being the collection agent for businesses in disputes with customers, and their involvement in this dispute, and arrest of Linscomb, was simply wrong.

Much is being made across the blogosphere about VP candidate Sarah Palin’s dubious understanding of how the 1st Amendment’s freedom of speech works.  That she botched it badly is clear; the media doesn’t interfere with her freedom of speech by exercising its freedom of speech to criticize her. 

Those inclined to rush to her defense argue that it’s not her fault for making a stupid lawyer mistake in her lack of understanding of the nuanced distinction between government action and private action, since she’s not a lawyer.  The pro-Palin spin is that she shouldn’t be held to a standard of legal correctness that is beyond the common person’s reach.  The anti-Palin spin is that ignorant people don’t get greater latitude in being wrong simply because they’re ignorant.

But this issue raises a larger issue, one that I’ve seen as problematic on every level of government for as long as I can remember.  Whenever our politicians lack the education and knowledge to understand and appreciate how the law works, particularly the Constitution, they feel nonetheless empowered to expound on their personal view of how it should be, and what it is, in their view. 

This present two really nasty problems.  The first is the facile ad hoc reinvention of constitutional rights and duties by each individual elected official.  Miraculously, they seem to keep coming up with some strange ideas that mesh seamlessly with whatever they want to do at any given time. 

The second aspect of this problem is that whey the expound on the vision of law, and being elected officials they are naturally entitled to expound on every subject from nuclear physics to constitutional interpretation despite their slightly less that deep understanding of the subject, they do so publicly.  The public, like the non-lawyer official, hasn’t the slightest clue whether they’re right or wrong, and accepts the credibility that comes with holding office at face value, attributing a perfect understanding of the law to the official.  In other words, one ignorant person makes it up, and the rest of the ignorant people buy into it.

Now the lawyer-haters will rip me to shreds for calling non-lawyers ignorant.  But I don’t call them stupid, because that has a different meaning.  Rather, they are ignorant about the law, and there’s no reason under the sun why should be otherwise.  There’s nothing wrong with that for the ordinary person.  Indeed, it’s likely to make them much more popular at parties, and who doesn’t want to be the life of the party?

But for a person seeking or holding an office where dealing with the law is a fundamental component, the situation is different.  They don’t get to make up the law as they go along.  They don’t suddenly become legal scholars when elected to office, though this is a disease of epidemic proportions. 

So the fact that Sarah Palin, the human being, doesn’t get the Constitution doesn’t trouble me at all.  Why should she?  But the fact that Sarah Palin, the Vice-Presidential candidate, was happy to shoot off her mouth and prove conclusively that she doesn’t grasp the 1st Amendment to the United States Constitution is another matter. 

I’m not suggesting that only lawyers belong in politics.  But I am suggesting that non-lawyers don’t get a free pass to ignorantly opine, or even whine, about the law.  And to be clear, this is not just a Sarah Palin issue, but one that has plagued us forever.

When last we left the Lori Drew prosecution, Judge George Wu had laid some issues on the table and Orin Kerr had joined the defense team.  The questions raised by Judge Wu suggested that he had some serious misgivings over the government’s use of the Computer Fraud and Abuse Act. 

In response to Judge Wu’s request for supplemental briefs, Team Drew submitted its brief, contending:

The Ninth Circuit has explained the scope of unauthorized access statutes in Theofel v. Farey Jones, 359 F.3d 1066 (9th Cir. 2004). Theofel analogized unauthorized access statutes to traditional trespass statutes. According to Judge Kozinski, unauthorized access statutes protect the privacy of owners of computerized information just like trespass statutes protect the privacy of physical space.

What exactly Judge Kozinski was driving at was whether the “essential character” of the intrusion went to the harm sought to be avoided or was just a collateral matter.  His explanation, to be blunt, was so obtuse as to compel him to explain himself over and over, ultimately stating:

These are fine and sometimes incoherent distinctions. But the theory is that some invited mistakes go to the essential nature of the invasion while others are merely collateral. Classification depends on the extent to which the intrusion trenches on the specific interests that the tort of trespass seeks to protect.

For those of you who, like me, are still struggling to understand Judge Kozinski’s point, this example was helpful:

In other words, it must be a substantial mistake concerning the nature of the invasion or the extent of the harm. Unlike the phony meter reader, the restaurant critic who poses as an ordinary customer is not liable for trespass, nor, unlike the wired cop, is the invitee who conceals only an intent to repeat what he hears. These results hold even if admission would have been refused had all the facts been known.

This helps, somewhat, to clarify that to fall within the strictures of criminal liability, the violation of the TOS must be one that goes to the harm the law seeks to stop.  The point in this case, of course, is that Lori Drew’s false persona did no harm whatsoever to MySpace’s servers, and hence was collateral and fell outside the purview of the statute.

Last Thursday, Judge Wu had the government’s response in hand, and while setting the case down for trial, reserved decision.  But what’s extremely curious is that the questions Judge Wu posed were less a matter for the defense to argue than the government, to whom they were really directed.  Judge Wu challenged the government’s use of this statute, which is the reason why this case matters to the rest of us, as the mechanism to get Lori Drew for her disgraceful role in the suicide of Megan Meier.

To put it mildly, the government’s response missed the mark by about a thousand miles. This entry was posted in Uncategorized on November 1, 2008 by SHG.

Kevin O’Keefe at Real Lawyers Have Blawgs doesn’t care much for Wired’s Paul Boutin’s advice about blogging.

Don’t. And if you’ve already got one, pull the plug.

Writing a weblog today isn’t the bright idea it was four years ago. The blogosphere, once a freshwater oasis of folksy self-expression and clever thought, has been flooded by a tsunami of paid bilge. Cut-rate journalists and underground marketing campaigns now drown out the authentic voices of amateur wordsmiths. It’s almost impossible to get noticed, except by hecklers. And why bother? The time it takes to craft sharp, witty blog prose is better spent expressing yourself on Flickr, Facebook, or Twitter.

Kevin disagrees.  Vehemently.  Me too, though I allow Boutin more credit than Kevin because I agree about the forces of evil trying to turn the blawgosphere into a garbage dump.  Try deleting hundreds of backtracks for viagra every day, blocking comments from shills and hucksters and seeing your posts stolen by bots and reposted at splogs under other names.  It’s like fighting the tide.

In the beginning, the internet was supposed to be a place where its denizens would regulate themselves.  We needed no “government” because we would rise up to smack down people and places that tried to turn it into one monster lying infomercial.  If someone lied about something, they were called on it. If someone did something wrong, we would collectively crush them.  We had the power to do it, and keep the internet pristine.

But like all powers, it takes a bit of time and effort.  That’s time and effort that can be spent on something else, which means it comes at a price.  As the web grew, in content, complexity and offerings, the price on our time became increasingly steep.  And many eventually decided not to pay the price any longer, while new people never understood the price of keeping dog droppings off their lawn, and decided to just live with them.

Boutin is right about the forces that are undermining the blogosphere.  I’ve seen them coming and have warned others (Kevin) and tried to fight them myself.  But Boutin is wrong that the game is over and the blogosphere is dead.  To borrow from Monty Python, we’re not dead yet.  But if those of us who inhabit a real blogosphere, the one that Boutin calls a “freshwater oasis of folksy self-expression and clever thought,” don’t put up a real fight against the “tsunami of paid bilge,” it will eventually drown us.

Fight it on your own blawg.  Don’t let the scum get the upper hand out of inertia or some misguided egalitarian belief that even scum should have free rein.  And, contrary to my friend Kevin’s philosophy, there just isn’t any reason to promote 208 DWI blawgs even if they’re willing to pay the fee.  There isn’t that much to say about it.  The blawgosphere has room for people who have something worthwhile to say, but when it fills up with folks who think it’s just free and easy marketing, it will suffocate under the weight of thousands of murdered words.

Don’t tell me that Volokh, or Berman, or Co-Op, or Defending People, or Prawfs Blawg, or What About Clients?, or A Public Defender, or  Deliberations, or f/k/a, or Turley, or Randazza and the Satyrconistas, and a dozen more, are dead.  They are very much alive and thriving.  They add to my day, to my knowledge, to my enjoyment and to my experience in the blawgosphere. I link to other blawgs liberally, perhaps more so than anyone else around the blawgosphere.  I am not an island, and this is my way of thanking others who contribute to the occasional firing of a synapse.  Without these blawgs, my ideas would be few and far between.

But when bad ones suck of bandwidth, or engage in impropriety, or clog the arteries, I will say so and do what I can to make them go away.  I hope that the rest of my friends in the blawgosphere will do the same, fight the tide that Boutin says will wash over our blawgosphere and wipe it out.  Support the good and fight the bad, and don’t let the tsunami of paid bilge ruin the blawgosphere for the rest of us.