A long time ago, in a galaxy far, far away, I once contemplated an offer to start an academic career. I was then, and am still now, fascinated by classical political thought—Plato and such. While I declined a generous offer to pay me to pursue a Ph.D., my fascination with the great classical thinkers remains. And that, then, brings me to the present day and Plato.

Plato thought democracy was one of the worst forms of government. I am beginning to agree with him.

Plato’s incisive critique of democracy is worth remembering today as we witness the madness that prevails in the halls of Congress, at the White House, in the Republican Party, and in the Democratic Party. In this regard, an increasingly large number of our fellow citizens on the left and right have gone completely off the deep end.

Plato tells us that the rabble cannot be allowed to govern.[i] Plato would not be surprised that rabidly self-interested citizens comprise a large segment, perhaps a majority, of the general public. Continue reading →

This could have just as easily appeared in Vox or Huff Post, but it didn’t. Instead, Ken White’s post was published in the National Review, though the message rings true no matter what your politics.

At six in the morning, a man is startled awake by an insistent pounding on his front door. He opens it to find armed government agents. One group of them begins to ransack the man’s home. Two others take him outside and put him into the back seat of a nondescript government vehicle. One of the armed government agents sits on either side of him, trapping him.

As he sits, blinking and confused in his pajamas, they begin to bark questions at him. Was he at a particular meeting, on a particular date, with a political figure who is under suspicion of wrongdoing? The man, confused and afraid and thoroughly intimidated, makes a bad choice — he answers, and he lies. He says he was not at the meeting.

The armed government agents smile. They already have witnesses placing the man at the meeting. They already have a recording of the man at the meeting. His lie does not deter, mislead, or even mildly inconvenience them. But now they have him, whether or not he’s done anything wrong before — now he’s lied to the government, a serious crime.

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Who spoke these words?

We chose to set up our system to be stacked in favor of the defendant in all cases, so, in areas where most of the defendants are male, and most of the accusers are female, it’s a structural bias in favor of males. Even if we were to get rid of sexism, it would still be very hard to win these cases. I think this is what we have to live with on the criminal side, because we’ve made the calculation that this is the right balance of values.

Jeff Sessions? Catherine Lhamon? Catherine McKinnon? Nope. The words were uttered by Harvard Lawprof Jeannie Suk Gerson, and appear in an article in the Television section by “gender issues” editor Susan Chira.

Good to know that the system is stacked in favor of the defendant in all cases, which explains the 97% win rate. Except it’s in favor of the prosecution. Either whoever did the stacking really blew it, or this is as stupid as it gets. Guess which one it is?

Because there are often no witnesses in such cases, jurors may have to decide whether a crime was, in fact, committed. Since defense lawyers will always try to attack the credibility of the accuser, and since inconsistencies in memory are common, Professor Gersen said it was often easy to convince at least one juror that there is not proof beyond a reasonable doubt.

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At Volokh Conspiracy, Stuart Benjamin discussed a critical aspect of the Supreme Court’s opinion in Packingham v. North Carolina. The Court held the North Carolina prohibition against sex offenders having post-sentence First Amendment rights unconstitutional.

[T]he justices unanimously (minus Gorsuch) voted to invalidate a North Carolina statute making it a felony for a registered sex offender “to access a commercial social networking Web site where the sex offender knows that the site permits minor children to become members or to create or maintain personal Web pages.” But Justice Alito, joined by Roberts and Thomas, concurred only in the judgment. All eight Justices agreed that the statute wasn’t sufficiently tailored. Both opinions emphasized the possible application of the statute to Amazon.com, washingtonpost.com, and webmd.com.

The distinction between majority and concurrence was one of degree, as Alito, Roberts and Thomas wouldn’t preclude a better tailored law from prohibiting “registered” sex offenders from possessing basic constitutional rights in ubiquitous technology. For the children.

But the opinion, in its musing, discussed what the Court’s default approach to fluid technological change should be, which is a huge open question going forward. Continue reading →

It was a heady day at the Supreme Court for people who aren’t Howard Dean. The Court issued two opinions, which spoke as clearly as legally possible to the trendy “hate speech isn’t free speech” mantra: Yes, it is. It’s free speech.

We now hold that this provision violates the Free Speech Clause of the First Amendment. It offends a bedrock First Amendment principle: Speech may not be banned on the ground that it expresses ideas that offend.

Had Justice Alito stopped there, written nothing further, we would have been fine. After all, this was the holding, and all the holding that was really needed to accomplish the two things that were needed of the Court. We knew who won. We knew why. Problem solved.

But, of course, the Court didn’t stop there. Continue reading →

The headline reads “Free Speech Advocates to Gather at Lincoln Memorial on June 25.” It’s a disingenuous headline, at something called Bigly Politics, as these fair weather advocates don’t give a damn about free speech, per se, but about their free speech and smacking the other team.

There has been a battle for free speech happening across the country in cities from Boston to Berkeley — and now it is heading straight for the nation’s capital.

On June 25, free speech activists will gather at the Lincoln Memorial to protest against the violent attempts to suppress right wing voices. An array of speakers will be taking the mic at the event, including Kyle Chapman (better known as Based Stick Man), Tim Treadstone (better known as Baked Alaska), Jack Posobiec, Augustus Invictus, Kyle Prescott, Jason Kessler, Irma Hinojosa, and James Allsup.

This is about “right wing voices” fighting for right wing free speech against left wing suppression, and particularly the Antifa. Granted, right wing voices have been targeted for silencing by the Antifa, and it’s not that they don’t have a legitimate beef. It’s just that they don’t get to pretend they’re neutral free speech advocates. See list of speakers for confirmation. Continue reading →

Former St. Anthony’s. Minnesota, police officer Jeronimo Yanez was acquitted of the killing of Philando Castile. Thousands took to the streets to block I-94 in St. Paul to protest the verdict, or more broadly, the anger and frustration of cops killing blacks with seeming impunity. While this reaction might be understandable as emblematic of the frustration felt by a community, it wasn’t going to do anything to stop the killing.

Police holding wooden batons formed a line to block the crowds protesting on I-94, ordering them to disperse, as heavily armed troops with armored vehicles were positioned nearby. Police have also reportedly closed off the adjacent bridges, leaving the protesters only one way to leave. At least three police buses were reported to have been dispatched.

The image of cops with batons blocking protesters might have become a rallying image at a different time. Here, it was just cops doing their job. Continue reading →

A few months ago, I reiterated my desire to find something new, different, to do with myself. Since then, I’ve responded to some “help wanted” postings, mostly having to do with writing. When I learned that Jameel Jaffer had started the Knight First Amendment Institute at Columbia, I twitted at Jameel to send me an email so I would have his email address. He was kind enough to do so.

Scott — good to connect with you.

Jameel Jaffer
Executive Director
Knight First Amendment Institute at Columbia University

And I replied with the purpose of my request for an email from Jameel: Continue reading →

There was a time when the Gay Pride parade was an outlandish, outsider affair. The participants often tried to shock the crowds, their way of telling people they were here, they were queer, and they were going to stick some part of their anatomy in your face whether you liked it or not. It must have been fabulous to watch the shocked expressions of school marms and polite society, as they clutched their pearls while some mostly naked guy on a float clutched his.

But now that LGBT+++ has gone legit, and the back of some transvestite’s g-string has the Amazon logo on it, it’s not the same.

Pride is clearly also for corporations who want to milk as much money as possible from a previously ignored demographic. In the past decade or so, companies have scrambled to prove how O.K. they are with L.G.B.T.Q.I.A.+ folks, and well, it’s embarrassing how transparent the scramble for our money is.

How to know when you’ve made it as a demographic? Somebody targets you for money. Continue reading →

Attorney General Jefferson Beauregard Sessions III explained in a WaPo op-ed why he reversed a 2013 Holder memo to prosecutors by directing them to seek the highest provable charge that will trigger mandatory minimum sentences.

First, it is a core principle that prosecutors should charge and pursue the most serious, readily provable offense. This policy affirms our responsibility to enforce the law, is moral and just, and produces consistency. This policy fully utilizes the tools Congress has given us. By definition, the most serious offenses are those that carry the most substantial guidelines sentence, including mandatory minimum sentences.

He leaves open the door for the exercise of discretion, with supervisor approval. This is the front end of the prosecutorial system. On the back end, he informs prosecutors to go for the max as well.

Second, prosecutors must disclose to the sentencing court all facts that impact the sentencing guidelines or mandatory minimum sentences, and should in all cases seek a reasonable sentence under the factors in 18 U.S.C. § 3553. In most cases, recommending a sentence within the advisory guideline range will be appropriate. Recommendations for sentencing departures or variances require supervisory approval, and the reasoning must be documented in the file.

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