The analogy Keith Kaplan made to me was a good one. Can you imagine some biglaw firm coming in as amicus on behalf of the government in a criminal prosecution? It seems ridiculous, but then, it occurred to me that it’s not as outlandish as it would appear at first blush. What, for example, if the government cut a sweetheart deal with a billionaire? Or maybe some judge approved a plea deal to let a statutory rapist off with probation? As Judy Tenuta used to say, “it could happen.”

My hope and expectation is that the Texas Tornado, Mark Bennett, will get down in the weeds to parse the substance of the argument made by the Duke Law School First Amendment Clinic in its amicus brief arguing against the challenge by criminal defendant, John Rivello, for sending an “animated strobe gif” to “known epileptic” Kurt Eichenwald. The particulars of the case are one thing; the fact that Duke’s First Amendment Clinic proffers its mission to be to limit the First Amendment to speech that law students deem worthy goes well beyond the particulars of this case. Continue reading →

Like other platforms, Tumblr is not one where I can be found, so I come at this from a distance. Others, apparently, were users and found certain content unsavory, which was pretty much Tumblr’s reason to exist.

Though Tumblr was born alongside most other modern social networks, it’s long been associated with a certain countercultural deviance. Founder David Karp launched it in 2007 when he was just 20, and his much-vaunted hoodie-wearing ethos helped give the site a permanently youthful attitude — even an air of “millennial narcissism.”

Tumblr’s younger, digital-savvy denizens made Tumblr into a center of internet culture, churning out memes and cultivating subcultures from fandoms to study bloggers to digital art collectives. But despite all this, the site has long been plagued by an unfairly dismissive cultural reputation that reduces the entire vibrant platform to a vast repository of porn, and not much else.

Does that mean Tumblr turned into a porn site, or was porn inherent in the deviant “digital-savvy denizens” culture? No matter. Continue reading →

A controversy arose from a twit by Peter Boghossian of Sokal Squared fame.

I’m at a softball game. It’s interesting to hear parents tell their kids “good job” after they struck out (some when they didn’t even swing and just looked at the ball whiz by). I wonder how this form of illusionary self-esteem has collectively influenced the generations.

A relatively innocuous question to ponder, given that unwarranted self-esteem, combined with pervasive narcissism, anxiety and depression, are acknowledged to be very serious problems. It wasn’t a stinging rebuke, as “good job” wasn’t exactly a standing ovation for failure. And it was just a softball game. Had it been “good try,” rather than “good job” for striking out looking, perhaps it would have been less dissonant. But wasn’t it a fair enough observation? Continue reading →

Going into the special counsel investigation, it was surreal how former director of the FBI, Bob Mueller, shed all baggage and became that mythical figure in Washington, the Honest Broker. Everyone agreed, Bob Mueller was to be trusted. Bob Mueller was the man who would tell America the truth. And so, we waited.

Two years later, the Report came out, and within days, the attorney general issued what the regulations required him to issue, a summary of the report’s conclusions. But Bill Barr’s summary lacked the trustworthiness of Bob Mueller’s report, because Barr was the president’s “hand-selected man,” as if any president ever nominated an attorney general who wasn’t “hand-selected.” Was the summary legit? If not, why didn’t Mueller say something?

Then came the redacted report, which raised a wealth of questions that sowed confusion as to whether the conduct of the president obstructed justice. There were ten points of conduct suggesting obstruction, yet no conclusion of obstruction. There was, explicitly, no exoneration, but no explicit condemnation either. What did it mean? Why didn’t Bob Mueller just say something? Continue reading →

Twice in the past few days, the Grey Lady has been “forced” to apologize for publishing political cartoons that have been deemed anti-Semitic, or as otherwise framed, contain anti-Semitic tropes. Do they offend? That’s up to the viewer.

First was their required Trump smack.

Whether this political cartoon is anti-Semitic, or perpetuates anti-Semitic tropes reminiscent of those used in furtherance of the Holocaust, is not the issue for the New York Times. They admit fault for having published them, which raises their curious apology. Continue reading →

The BDS movement, purporting to be anti-Zionist and pro-Palestinian, has been a popular fixture on campus for a while, calling for the Boycott, Divestment and Sanctions of Israel. I’m no fan of the movement, as I’ve made clear in the past. But so what?

[On April 29th], a Massachusetts court heard initial arguments in a lawsuit that seeks to compel the University of Massachusetts at Amherst to cancel an upcoming panel discussion concerning “the increasingly vitriolic debate over U.S. support for Israel.” The lawsuit is the latest example of an attempt to use the State Department’s definition of anti-Semitism — and confusion over whether it has been adopted by the Department of Education’s Office for Civil Rights — as a legal argument for campus censorship.

While the court has not yet ruled, one lawyer in attendance reported that the judge was “unimpressed with the bid to censor the event.”

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Putting aside whether Joe Biden, former drug warrior and attack dog of the Dems, now entering his fourth run for the party nomination for president, and inveterate hair sniffer, is the last liberal standing in a field of progressives, Lucy Flores ain’t buying.

I know a few things about mistakes and second chances. As a formerly incarcerated youth and high school dropout, when I decided to run for a state legislative seat, I needed my community to know that not only was I sorry for the many transgressions of my young adult life, but also that I had taken those experiences and learned from them. I learned to treat my mistakes not as points of shame, but as opportunities for growth. It’s those experiences with tough moments that inform my approach to accountability today, and why I believe it matters that people acknowledge when they do wrong.

There is, of course, a certain virtue from recognizing one’s mistakes, although a wayward youth doesn’t necessarily commend one for public office. Nor does dropping out of high school suggest she’s got the intellectual chops to do more than parrot the self-serving jargon of her tribe. But it also doesn’t make her wrong. Continue reading →

It’s a great time for a prosecutor, particular one who checks a couple intersectional boxes and has a burning desire to be popular to a certain political cohort, to do an about face, cry the sad tears of racist execution of law and seek relief for those maligned. Baltimore State’s Attorney Marilyn Mosby saw her chance to be loved and seized it, but two darn judges refused to let her be the hero.

When you send the cops into a particular neighborhood, to target the people who live in that neighborhood, it’s a little disingenuous to complain that the cops did as directed. Continue reading →

About a decade ago, it became clear that the Fourth Amendment framework for the physical world was going to present some problems when applied to the digital world. Some of the academics who ponder such things, like Dan Solove and Orin Kerr, tried to come up with competing theories and approaches that would produce an alternative to the two prevailing conflicts, the Katz Reasonable Expectation of Privacy Test and the Third-Party Doctrine.

In the intervening years, the Supreme Court has issued some good opinions, such as United States v. Jones and Carpenter v. United States, but hasn’t done much to address the doctrinal problem of privacy from government access in the digital age.

Some Supreme Court justices have been roundly (and often deservedly) mocked for their ignorance about basic everyday technologies, such as text messages and email. But one advantage to having an older, less tech-savvy judiciary is that their ideas about privacy were formed during an earlier era when it might well have been reasonable to expect that the police would not be able to obtain a week’s worth of detailed location information about you.

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Do the wealthy “deserve” to be wealthy? Do the children of the wealthy deserve to inherit their family’s wealth? The New York Times presents Resource Generation, an organization for people under 35 who feel the shame and guilt of other people’s wealth that will inure to their benefit, and which they believe to be immoral.

This country is rigged in favor of making the very wealthy even wealthier. That’s what Democrats keep saying on the 2020 campaign trail. And it’s what some of the people who have reaped the rewards of this rigged system think too. Abigail Disney, granddaughter of Roy Disney, is one recent high-profile example. On Tuesday, she called out the “naked indecency” of the $65 million in compensation that goes to Disney’s chief executive, Bob Iger. That figure, she noted, is “1,424 times the median pay of a Disney worker.”

Does Bob Iger “deserve” $65 million, or maybe just half that? Would that be enough of a pay cut to make Abigail Disney, whose name connects her to greatness that nothing she has ever done, or will ever do, can achieve? Continue reading →