It was one of those “what do you think” calls from a friend, that was really a “here’s what I think and you should too” calls. He acknowledged that Trump’s lawsuit must be bonkers because all the lawyers say so, but wasn’t he “right, really”? Wasn’t it really true that but for Section 230 of the Communications Decency Act, there would be no Twitter, no Facebook, no social media where most of the people can be found, and so becomes the de facto town square in a virtual town?

The discussion didn’t center on whether private corporations had a First Amendment right to speak as they chose, or not, or allow speech as they saw fit. Whether for good reason or no reason, they could shrug and trash any utterance, as they explained in their terms of service. Unfair? Arbitrary? Capricious? Where is the respect of principles of free speech, of diverse thought, of tolerance? A fair enough question, given how ham-handedly decisions appear to be made and the inability to argue your case with a sentient human being. Continue reading →

Right wing provocateur Andrew Breitbart once said “Politics flows downstream from culture.”

Sun-Tzu said in “The Art of War,” “If you know the enemy and you know yourself, you need not fear the result of a hundred battles.”

With these sayings in mind and a dash of masochism in my heart, I started reading Ta-Nehisi Coates’ run* on “Captain America,” a seminal Marvel title I was sure he’d fuck up on some level. Continue reading →

A black ex-cop*, Eric Adams, won the Dem nomination for mayor of New York City, which apparently isn’t a big enough deal since New York City already had a black mayor, David Dinkins, and so he gets no victim points. But to get there, he won over the New York Times’ choice, Kathryn Garcia, and the AOC choice, Maya Wiley. Both are . . . women.

It was a constant refrain for the two leading female candidates running for mayor of New York City: The city has had 109 mayors, and all of them were men. It was finally time for a woman. Continue reading →

Some words have no purpose other than to be pejorative. The obvious example is the “N-word,” but there are plenty of others to cover Italians, Irish, Jews, Asians, Hispanics, and even French. In WWII, the Germans were called “krauts” and the Japanese were called “nips.” But these are slurs, created as slurs and for the purpose of slurring. They are meant to insult and dehumanize, even if they’re later adopted to seize the sting and turn it around, as did our forefathers with Yankee Doodle Dandy.

But “alien”? It’s a word with a longstanding legal definition and used regularly in statutes. It was sullied by use in the phrase “illegal alien,” for which there is no legal definition or legal usage, and is a misleading phrase in any event. This became the pejorative phrase. And because alien was so often used in this phrase, the stink of the first word rubbed off on the second. Continue reading →

Trump sued and lawyers laughed. The suit claims that social media giants violated the First Amendment by silencing the “Forty-Fifth president of the United States,” which we know because he included it in the caption. On the one hand, nobody does that. On the other, the claim is impossible because Facebook isn’t the government, and only the government can violate the First Amendment.

Legally, it’s worse than goofy, which explains why Dersh calls it the “most important First Amendment case of the 21st century.” This is worse than frivolous: for it to rise to the level of specious would require a complete reversal of American constitutional jurisprudence. But then, as legally absurd as the suit is, Ohio Attorney General Dave Yost makes a pitch for a paradigm shift nonetheless. Continue reading →

The laws are bad. I’ve said it. Others have said it. Laws are not up to the job of addressing the myriad issues and problems. But the problem not only isn’t going away, no matter how passionate Judd Legum’s denials.

This is no small matter, given that many progressives have rested their entire defense of CRT on the idea that it’s a very narrowly defined aspect of elite law school training. Judd Legum, formerly of [the now defunct] ThinkProgress, has said the notion that CRT is taught in K-12 schools is a lie. During an extended and furiously unproductive debate on the subject, MSNBC’s Joy Reid accused Manhattan Institute scholar Christopher Rufo—the leading anti-CRT activist—of “making up your own thing, labeling it something that already existed as a name, slapped that brand name on it, and turned it into a successful political strategy.”

Continue reading →

No need to let your thoughts meander back to the nursing home dead or accusations of sexual assault against Cuomo when there are real assaults, shootings and murders to capture all eight seconds of your attention span. And New York Governor Andrew Cuomo has you covered. Finally, something a governor can make a stink about that won’t splash back on him. Or will it?

On Tuesday, Gov. Andrew M. Cuomo declared a new state of emergency around gun violence and committed almost $139 million to reverse the trend of rising shootings and murders across the state. Continue reading →

There have long been some laws that, in a different universe, raise problems that really can’t be reconciled with constitutional rights. Rent control, for one example. What authority does the government have to tell a landlord what rent he can charge a tenant? Anti-discrimination is another example. While the government can’t discriminate, what authority does the government have to tell individuals they can’t do so?

Of course, we acknowledge that these laws lead to a common good and so we indulge some legal legerdemain to rationalize why it’s okay for the government to tell private individuals and businesses how to function. We hitch the wagons to things like commerce and public access, and stretch connections to their breaking point and beyond to achieve goals we find desirable. This isn’t a discussion about whether laws prohibiting discrimination are bad, but what authority the government has to dictate the terms and conditions of citizenship and commerce. Continue reading →

Granted, any Supreme Court opinion that begins, “JUSTICE ALITO delivered the opinion of the Court,” is presumptively going to be bad. And the hot commentary that followed on the heels of the issuance of Brnovich v. DNC certainly saw it that way. At Vanity Fair, Cristian Farias wrote that it was “devastating,” and put the Voting Rights Act on “life support.” In the New York Times, prawf Rick Hasen wrote that it put “democracy at risk.”

But my old pal Elie Mystal, in his inimitable way, laid it on the line in The Nation. Continue reading →

Trans women are women is a fine mantra, but it comes with some baggage. When the issue was perceived as who gets to use what bathroom, some of the baggage was shrugged off. After all, women’s bathrooms have stalls, and stalls have doors, and who cares anyway? Fair enough. But it was never about women’s bathrooms, which unsurprisingly eluded some people. That doesn’t make it righter or wronger, but more unclear, as a woman learned at Wi Spa in Los Angeles.*

A woman confronted the staff at the Wi Spa in Los Angeles after a man walked into the women's section with his genitals hanging out in front of girls. He identified as a "woman." The employees said he had a right to do that. The employees say that it's the law.

Part 1 pic.twitter.com/m1VbU0WU6A

— Ian Miles Cheong (@stillgray) June 27, 2021

To be fair, it wasn’t the spa’s choice, as it merely complied with California’s anti-discrimination law that prohibited discrimination against transgender people. Continue reading →