When the story appeared in the Daily News, it was more cringe-inducing than anything else.  O.J. Simpson was a closed chapter in legal history,  Dead and buried.  So too was F. Lee Bailey, the one-time Dream Teamer who has since been disbarred, but he’s apparently determined not to stay that way.

In a 46-page document posted on the website of his consulting firm, F. Lee Bailey wrote that he had additional evidence that would finally erase all doubt about the Heisman trophy winner’s innocence.

“The facts offered here are either largely unchallenged, or much more persuasive than those contrary views which have been argued,” he promised.

That’s quite a promise.  Of course, it’s easy to promise. Delivering is another matter.

The 77-year-old lawyer says that despite what the public may believe about his former client, Simpson wasn’t the type of person to use “raging violence to solve his emotional problems.”

“O.J. – apart from the infliction of injury on Nicole – has no history of resorting to raging violence to solve his emotional problems,” Bailey wrote in the documents, adding that a psychiatrist agreed the former football star had never been psychotic.

Not persuaded yet?  Then chances aren’t good that the beef of Bailey’s argument will win you over, that there were “witnesses” who never testified, which Bailey believes to be a huge mistake on Johnny Cochran’s part (notwithstanding the small detail that he won the acquittal).

*Testimony of Tom Lang, a dog walker, who said he saw a blonde woman arguing with a man near a white pickup truck on the night of a murder with another man crouching 70 feet away. He said he didn’t think anything of it, until he learned of the murder.

*A key witness, Keith Douglas Zlomsowitch, was never called, though Bailey claims Zlomsowitch would have testified that Simpson wasn’t jealous of other men’s relationships with his ex-wife. “The public never heard from Zlomsowitch, even though his testimony would have posed a powerful contradiction to the prosecution’s only claim of motive: that Simpson killed Nicole because of a jealous rage. We had him under subpoena and were prepared to call him, but like so much other critical evidence, the threat of further erosion of the jury was just too great,” he said.

Inexplicably, there’s no mention of O.J.’s Bronco mechanic or the postman at Nicole’s apartment complex. 

This is just embarrassing.  Regardless of what one thinks of O.J., and it remains one of those iconic cases where everyone seems to have an opinion of his guilt or innocence (thought mostly guilt) despite having no actual knowledge, the notion that anybody wants to exhume the case now is bizarre.

According to the Daily News, F. Lee Bailey thinks people are now, more than 15 years after the acquittal, open to new information that will change their view of Simpson.  The 33 years he’s serving doesn’t seem to enter into the equation.

Bailey said he didn’t publish the evidence to clear his client in the public eye because he felt people were too biased following the explosive trial.

“I had always decided to move forward, but was convinced it would take time until anyone has an open mind,” he said.

Why that time is now is unexplained, but based upon the reception his explosive disclosures have received, he may need to get a new watch. 

Seriously, this obviously isn’t about O.J. Simpson, whose legacy is etched in stone whether rightly or wrongly.  This is about F. Lee Bailey, one of a handful of lawyers who have become household names in America.  That’s nothing to sneeze at.  But at 77, and despite his own legal issues, Bailey is not ready to be put on the sled and dragged out to the woods just yet.

It may be that he needs some money and the new consulting biz isn’t paying off as well as hoped.  Maybe another book will do the trick, but there needs to be some demand, some interest, to generate an advance.  Would a new take on O.J., Bailey’s last big case do the trick?

The problem is that his position on the pedestal is at risk.  Sure, being atop a pedestal doesn’t pay well, but that’s a sacrifice one has to make to maintain a legacy.  Then again, legacies don’t pay as well as they used to.  Just ask O.J.

The upshot of this effort, particularly when combined with the multitude of other problems Bailey has faced, is that he’s not likely to do much to make a buck, free O.J. or help his badly tarnished public image.  Lose, lose, lose is a terrible way for a lawyer who had been such a powerhouse at one time to go out, but reopening O.J., on skimpy (to be kind) evidence, isn’t going to save him.

And there aren’t a lot of criminal defense lawyers around who can lay claim to being a household name.  If F. Lee Bailey can’t make a buck off his stories, at least he can keep his dignity so he has something to leave behind.

H/T Above the Law

The call came in just after 5 p.m., as I was dotting “i”s and crossing “t”s and preparing to wrap it up for the day.  She informed me that she needed a lawyer to represent her in a “petite” larceny.  Not being able to discern her stature over the phone, I took her word for it.  She told me she found me on Avvo.

I apologized, and informed her that it wasn’t the sort of criminal defense work I did.  “Petite” larceny wasn’t my thing, unless she happened to murder a few people in the process or was CEO of a multinational.  That’s just my cute way of saying that her case wasn’t serious enough for me, a concept which I agree is arrogant but, sad truth told, realistic. 

She started screaming at me, “But you’re a criminal lawyer. You must take my case!”  I began saying, “I’m sorry, but,” and got no farther.  She was raging about my duty to defend her.  Avvo said so.  Avvo said I was a criminal defense lawyer, and she was a criminal defendant.  Therefore, I had no choice in her mind.

According to twitter, the internet is all about marketing.  Though that’s not my belief, nor that of many others, the message remains loud and strong, ringing in the ears of consumers who seek to use it for their purchasing decisions.  Including consumers of legal services.

From my lawyer perspective, obviously no relationship is established by dint of my happy face being visible on Avvo.  The same is true of my having a website and a blawg.  I may be here, but that doesn’t mean that anyone who stumbles in is my client, a person to whom I owe a duty of representation.

But that doesn’t mean the consumer of legal services shares my understanding.  Clearly, the woman who was irate with me for not being willing to sell my services to her, to take her case, an obligation she believed existed merely because she found me on the internet,

Her rationale was that I held myself out to be a criminal defense lawyer.  I was selling.  She was buying. That was that.  Contrary to what some might think, I don’t enjoy fighting with people.  I didn’t want to have this woman I don’t know furious with me, screaming at me on the telephone.  But given the way that lawyers market themselves, it’s not exactly surprising that she believed she was in the right. 

After I finally disengaged from this very unpleasant telephone call, the woman no happier with me at the end of the call as she remained unconvinced that I didn’t have to represent her upon demand, I pondered what I could do to avoid another confrontation.

My thoughts first turned to Avvo, where  my profile lists me as doing 50% criminal defense and 50% white collar defense, with a graphic to prove it to those for whom reading is problematic.  Neither is really accurate, and I despise the phrase “white collar defense,” but Avvo’s practice choices ram it down my throat.  Having had this discussion with Mark Britton, Avvo’s CEO, previously, I had added into my profile language noting that my practice was limited to “the defense of while collar and serious criminal accusations at investigative, trial and appeal stages in state and federal courts.”

I struggled with what to say to stop the calls from coming by nice folks who got nabbed for shoplifting, or peeing in the park, or riding their bicycles on the sidewalk.  Those are the people who tend to call me from Avvo, and while I appreciate that they are trying to find a lawyer to represent them, I’m not their guy.  I don’t want to be arrogant or mean about it.  I’m not suggesting that they are unworthy of a defense, or that their cases are too trivial.  I’m merely saying that I’m not the lawyer they’re looking for. 

Perhaps part of the problem is that people look at the graphic, the part of Avvo that lists lawyers in such broad categories as to invite confusion that I’ve tried to avoid by including more specific information to let them know that I don’t do shoplifting defense.  If Avvo was to take the category of criminal defense and break it up into three categories, for example, of misdemeanor, felony and serious felony, it might help to clarify?

My guess is it would work for some, but not for the nice woman who grew irate with me.  She might have had a misdemeanor, but she wanted the best lawyer the internet had to offer.  If there was a “most serious felony ever in the world” category, that’s where she would have look for a lawyer to defend her.  Even though she had (yet) to murder anyone.

Still, this wouldn’t address the problem of people on the internet deciding that an attorney client relationship exists merely because they decided that they want me to be their lawyer.  This isn’t the first time this has happened.  I once got a call from a court clerk asking where I was, a defendant having informed the court that I represented him even though I had never spoken with the defendant and had no clue who he was.  It was surreal, and embarrassing. I didn’t want the judge to think the defendant was nuts, but the defendant was nuts.

It doesn’t require a great deal of sophistication for a potential client to realize that no relationship is established merely because they stumbled across a website or Avvo profile, but as more people use the internet to go lawyer shopping, the likelihood of such mistakes increases.  Nobody wants to deal with angry, screaming people on the telephone as their closing up shop for the day.  I know I don’t. 

Yet they see our existence on the internet as a promise of availability to them, of the creation of a relationship based solely on their decision to purchase.  That’s the problem when lawyers hold themselves out for sale.

It’s a scary, threatening symbol, found on hats and tats of its members.  Not the sort of people you would care to run into on dark night or a lonely street corner.  There’s a name that goes along with the long-toothed skull.  The Punishers.  Would it surprise anyone that this group, this gang, is terrorizing the streets of Milwaukee?

It surprised Edward Flynn, the Chief of Police.  From the Milwaukee Journal Sentinel :

Police Chief Edward Flynn declined to be interviewed, but issued a statement Wednesday, calling the Punishers a “rumor.”

“Since 2005 there have been rumors of the existence of an organized group of officers engaged in vigilante-style activity calling themselves ‘The Punishers.’ There are indications that an investigation took place into these rumors prior to 2008,” Flynn’s statement said.

“I directed the Professional Performance Division in 2008 to conduct a thorough investigation. PPD interviewed a number of officers, they reviewed the complaint file and could find no evidence that such an organized group ever existed nor is there any record of citizen complaints to any local or federal authority regarding the activities alleged.”

Not exactly.

Shortly after Frank Jude Jr. was beaten, a Milwaukee Police Department commander investigated a suspected rogue group of officers known as “the Punishers,” who wore black gloves and caps embossed with skull emblems while on patrol, according to newly released documents.

Capt. James Galezewski examined what his report calls a “gang,” first in 2005 and again in 2007. The police academy supervisor concluded both times the Punishers represented a danger that warranted further investigation and action by the department, according to documents newly unsealed in Jude’s federal civil rights lawsuit against the city.

“This is a group of rogue officers within our agency who I would characterize as brutal and abusive,” Galezewski wrote in a December 2007 report.

The distinguishing feature of this gang, aside from the long-toothed skull, is that they all had shields.  And like any gang, they had to be careful in recruiting only members who fit their mold.  Where better to find them than in the police academy, where young minds are molded.

In 2007, Galezewski learned a police recruit had a tattoo of the Punisher logo, a skull with long teeth. The recruit – whose name was blacked out in reports at the urging of the city attorney’s office before the documents were unsealed – had been acting arrogantly in police academy classes, Galezewski wrote in his 2007 report.

Galezewski wrote the tattoo demonstrated the recruit posed a danger: “He is sending a clear message that he has every intention of exercising his authority as a police officer in an inappropriate and abusive way, and in my judgment, it would be irresponsible to allow him that opportunity.”

Galezewski recommended the recruit be fired. He was not and remains on the force as an officer, according to court documents, in which his name was blacked out.

This is the stuff of top of the line grade B movies, the type of action flicks that teenagers and lonely men enjoy immensely as the tattooed heroes show their machismo by beating people mercilessly.  Except this wasn’t the film, and was happening in a place like Milwaukee, where locals still sing polkas at Friday night fish fries.  Where movies, and Marvel comic books, are taken seriously.

Somehow, Galezewski’s findings never made their way to a subsequent report by Deputy Inspector Mary Hoerig of the Professional Performance Division, Nobody apparently noticed the long-toothed skull with the number 7 on the locker of Andrew Spengler, the cop who was convicted of beating Jude.  Or the same skull with long teeth tattooed on Jon Bartlett, another cop also convicted of the beating.

The notion that this both existed, and existed since 2005 (a year after the Punisher movie came out) is beyond shocking.  That a gang of rogue police officers, dedicated to taking vengeance into their own hands a meting out their own brand of “justice” should rock a city, rock a police department.  There should be no higher priority than to ascertain the existence of such a gang, and shut it down hard and fast, as it is not only outrageously criminal and wrong, but fundamentally contrary to the purposes of law enforcement.

And yet the police chief, despite the information that has since been revealed by Jude’s federal action and the disclosure of Galezewski’s report, says it was merely a rumor. 

When last I was in Milwaukee, we had dinner in a restaurant that lit up when the accordion player sang, “In heaven there is no beer (NO Beer!). that’s why we drink it here.”  The song was cheerful and gay.  Now I can’t help but wonder whether anyone lifting their mug high had a tattoo on their arm of a long-toothed skull.  Last time, I didn’t look.  Next time, I will.

More importantly, it serves to give a far deeper understanding of the risk faced by lawyers like Eric Brittain who stand up to the Milwaukee police department.  They may not be too good at investigating their cops, but they are right on top of going after criminal defense lawyers who challenge corruption. 

It goes without saying that no normal person reads the terms of service of any website or ISP used on the internet.  (Yes, I know you do.  I said “normal.”)  Buried in the verbiage is their right to disclose your private information in response to a court order.  Nowhere does it require them to challenge the court order. 

It’s not that orders can’t be challenged, but that they have no reason to do so.  It’s not their private information at stake, but yours, mine, ours.  The closest they have to a horse in the race is any repercussions should they be lambasted for having been so weak as to ask the government agents if they would like cream in their coffee as they rifle through your life.

From the hearts and minds of corporate counsel, the incentive system is clear.  Why go through the expense, both in money and goodwill, of fighting the government over something that has no upside for the enterprise.  This is standard operating procedure in corporate legal to curry favor with the government when it costs nothing, and hopefully collect the interest when the day comes that the government is looking askance at them.  Regardless, there’s never a good reason to pick a fight with the government over someone else’s problem.

And why should they?

Because the path of least resistance, and greatest potential benefit in the future, is the same path that encourages the government to continue pursuing the course of using internet enterprises that collect our private data as an easy means of government surveillance. The telephone companies have long embraced the government as eavesdropping partners, and as tech develops, new friends are added to the fold.

As noted at the Legal Satyricon, when a subpoena shows up at the digital doorstep, it usually includes a gag order that precludes the recipient (the third party ISP, for example, that maintains the information sought) from disclosing the order to the target.  The target of the subpoena, thus, has no clue that there is a demand for private information and can’t take action to quash the subpoena.  The ISP, on the other hand, accepts the subpoena and, shrugging its shoulders, hands over the private information without hesitation.

But not Twitter.

To Twitter’s credit, the company didn’t just open up its database, find the information the feds were seeking (such as the IP and e-mail addresses used by the targets) and quietly continue on with building new features. Instead the company successfully challenged the gag order in court, and then told the targets their data was being requested, giving them time to try and quash the order themselves.

This is both curious (to put it mildly) and inspiring.  Well-established corporations, raking in huge profits and far better capable of standing up to the government, routinely cave as soon as the fellow at the door says, “I’m from the FBI.”  Twitter is still in the hand-to-mouth phase, yet made the decision to say “no”.  Why?

By standing up for its users, Twitter showed guts and principles. Much of it is likely attributable to Twitter’s general counsel Alexander Macgillivray. As security and privacy blogger Christopher Soghoian notes, Macgillivray was one of the first law students at Harvards’ Berkman internet law center and at in his previous job at Google “played a major role in getting the company to contribute takedown requests to chillingeffects.org.”

Macgillivray declined to comment to Wired.com through Twitter’s spokeswoman.

There isn’t a criminal law specialist at major law firm in this country who would have advised this fledgling behemoth to fight the government.  There isn’t a former associate fed into the corporate counsel system who would have stood tall.  Despite the inability to offer straight advice at almost any other juncture, on their they would universally agree:  Don’t piss off the government to save someone else’s butt.  Not one.  Well, maybe one.

Alexander Macgillivray must not have gotten the memo.  Instead of stepping onto the slippery slope of government obsequiousness and risk aversion,   What was he thinking?  Princeton and Harvard Law educated, with some Silicon Valley law firm time behind him before he jumped to Google, then Twitter, one might expect him to toe the line, know his place, advise his enterprise to not make waves.

Instead, he took a stand and protected the privacy of twitter users. 

For all the bravado of the brash internet folks who are the holders of every detail of our lives, that they are different,  digital nihilists who laugh at authority and scorn conformity, the equation changes when it’s their brand new Ferraris at risk. 

Twitter has yet to turn a profit, though, so it’s unclear how many Ferraris sit in their parking lot.  If for no other reason than this, Alexander Macgillivray’s decision to stand up to the government and say no on behalf of all those users who, inexplicably, believe that there is someone out there with the guts not to bend over whenever the government asks, I hope they have a parking lot filled with Ferraris.  I hope Macgillivray gets a red one.  If that’s what he wants.

Regardless of whether one finds Twitter’s services critical to the future of humanity or a fun way to kill a few minutes, this bold move speaks well of the heart and guts of those in control, and should embarrass the hell out of all those pseudo-cool digital executives who have traded in their flip-flops for wingtips. 

That’s right, the list has been updated.  Are you on it?  If not, then why are you wasting your life?

Not sure what the list is? 

Wild Men. Wild Women. They love Value. And Quality. And Stepping Up. Wild Men and Women are people who listen only to the little voice in their head. They get things done. They build things. They don’t care what you think. Uncertainty and turbulence–in the economy, stock markets, governments, the weather, you name it–only get their juices flowing.

You don’t have to know about the list to make it.  You just have do whatever you have to do, and if there’s something to prove you existed by the end of the day, you may be on the list. 

So who’s on the list?

1. Ben Franklin
2. Ted Turner
3. Dr. Johnson
4. Dr. Thompson
5. Theodore Roosevelt (yes, he was wild)
6. Andrew Jackson
7. Ayn Rand
8. Ana Marie Cox
9. Boudica
10. Dustin Hoffman
11. Winston Churchill
12. Benjamin Disraeli
13. Arianna Huffington
14. Bucky Fuller
15. Jerry Lee Lewis

This is Ted. He’s never cared what you think.

16. Bill Buckley
17. Bill Clinton
18. Steve Jobs
19. Captain Harry (Charleston SC fishing/hunting guide)
20. Welsh and Irish guys when they’re sober
21. Nick Nolte
22. Ernie from Glen Burnie (DC lawyer, alias of WAC? childhood friend)
23. Christopher Columbus
24. Jann Wenner
25. Sean Penn
26. Ken Wilbur
27. Plato
28. Catherine the Great
29. Val Kilmer (way wilder than Jim Morrison)
30. Harry Dean Stanton
31. Scott Greenfield
32. Julius Caesar
33. Pete Seeger
34. John Lennon
35. Joseph P. Kennedy, Sr.
36. Peter Sheridan
37. Christopher Hitchens
38. Craig Young, Bush Pilot
39. Warren Beatty
40. The waitress at Kelly’s who poured beer on me. Twice.
41. John the Baptist
42. Rahm Emanuel
43. Robert Mitchum
44. Joan of Arc
45. Dylan Thomas
46. George Kaufman
46. “E”
47. Boswell (he was wild, too)
48. Ben Jonson
49. Mae West
50. Daniel Pinchbeck
51. Daniel O’Connell
53. Robert Johnson
54. Pima County, Arizona Sheriff Clarence W. Dupnik.
55. St. John of Patmos
56. John Henry “Doc” Holliday

Check the list again.  If your name isn’t there, ask yourself why.  Better still, ask yourself at some point during your morning routine why you’re bothering if you have no intention of making yourself matter today. Just go back to bed.

And if you’re not on the list, then nobody cares who you think should (or shouldn’t) be on it. You don’t get a vote.

The  strange case of Queens District Attorney Richard Brown going after Supreme Court Justice Joel Blumenthal for, of all the gall, questioning the propriety of potentially manipulating defendants into giving statements before counsel is assigned, has gotten even stranger. Much stranger.

Brown is trying to preemptively stop Blumenthal from ruling on a pre-trial motion to suppress statements via mandamus, and brought out the big gun by engaging former New York Court of Appeals Judge Joseph Bellacosa as his expert to shoot down the opinion of lawprof Ellen Yaroshefsky.  Aside from the laying on the judge-thing just a bit too thick, not too big a deal.

But Judge Bellacosa, who was well-regarded during his tenure on the big bench from 1987 through 2000, has shed whatever judicial temperament he once possessed, in  reportedly raised in Ridgewood section, at the Queens border, which would make his Bed-Sty claim not only a bit specious, but suggest that the gang down the street might take umbrage at his claim to toughness.  The Bed-Sty view of Ridgewood is that people there dress funny, perhaps meaning “they wear black robes.”

But then it gets worse.  In closing, Bellacosa writes:

With No Due Respect,

Joseph W. Bellacosa

My disdain for the adversarial exuberance of your oxymoronically labeled amicus curiae brief, in this particular regard and in other respects I have noted in this letter, is pungent; no less so is my profound disappointment with those who wittingly or unwittingly signed onto your manifestly unfriendly letter.

It was bench trial day, with two teams doing a bench trial of a federal drug case going head to head.  They are wearing their suits and ties, suits and heels, the uniform of lawyers.  They have legal pads in hands and serious looks on their faces.  It’s war.

My  job at ITAP was to play the role of judge until the trial was over, then to evaluate their effort, providing guidance as to what they did well and what needed improvement.  The best part of bench trial day is that they are in roll as lawyers from the moment the “judge” walks into the room until the end of the government’s rebuttal summation.  They are delightfully serious. 

After two trials, I was astounded by what a great job the law students did.  No, not perfect, with some flawed efforts, particularly with explaining their objections, refreshing recollections and using prior inconsistent statements.  But then again, these were as good as, if not better, than many real trials.

After the day was done, as I walked in the cold toward the subway, I found myself going stride for stride with one of the students in the program.  We talked as we walked.  He told me that he’s finished in a semester, and he concerned.  He’s “littered” New York with resumes to no avail.

“So what are you going to do?”

“I’ll get a job.”

“What job?”

“Something. Anything.  Law if I can.  McDonalds if I have to. But I will work.”

I offered some suggestions, though I don’t know how viable they were.  It was all I could do.  He asked me if I could use him, but I couldn’t. 

But I believe him.  I can’t say whether his attitude reflects the sort of student who goes out for ITAP or not, but I expect that the same student who wants to leave law school capable of being a lawyer is the type of student who will somehow make a place for himself in the law.  Cardozo Law School isn’t the elite in the City of New York, but I would take a kid who can try a case over the name on a diploma any day.

I just thought anyone who is considering law school, or in need of a lawyer, ought to know.  This student will succeed, if for no other reason than his dedication to being a lawyer.  He may have nowhere to go at the moment, but he’ll find a place for himself.  He won’t sit there and whine about it.

The aftershock is to be anticipated.  As the  New York Times says, politicians of all stripes are concerned for their safety.  Who wouldn’t be?

“In each district you represent your share of unstable people,” Representative Jack Kingston, Republican of Georgia, said Sunday as he and other House members pulled for the recovery of Representative Gabrielle Giffords and struggled with how to respond to the shootings. “Now you are aware that they do show up at your town hall meetings and maybe they are not all harmless.”

Lawmakers also live the most public of lives and, like Ms. Giffords, heavily promote their local events to encourage people to attend. They say that they cannot retreat behind police escorts and security barriers.

Elected officials need to meet the people, both from their institutional need to hear what their constituents have to say as well as their institutional need to make people want to re-elect them.  It’s one of the few aspects of political life that has any decent balance.  Of course, between media and corporate money, that balance may not last much longer, but that’s a separate issue.

Three reactions may well be in the offing as a result of the tragedy, which like most compels people to do something, anything, regardless of whether it solves the problem or creates more problems than it solves.  Americans are a people of action.  We like action.  We respect action, regardless of whether it’s the right action.  Why else would people chant the Nike slogan?

1.  Elected officials will begin the process of surrounding themselves with protection.  Whether local cops or capital security, perhaps even a new department within Homeland Security to protect officials from those who would do them harm.  We have a lot of elected officials, and protecting them would be a monumental endeavor, as they are by definition public people and they tend to go back to the states/districts from time to time. 

This would likely be coupled with regulations to facilitate their movement apart from the groundlings, such as not being forced to wait on airport security lines.  Of course, there’s no particularly good reason for a congressman to stand on an airport security line from a security perspective (heck, if they were going to blow something up, the capital rotunda would be a more more impressive choice).  But it’s critically important that they suffer they same indignities they impose on the rest of us, so they have a clue how miserable they are making life for everyone else.

2.  Criminalizing the very threat of threats.  One idea being floated is to create new federal crimes for threatening elected officials.  From a security standpoint, this would facilitate protection by giving law enforcement a tool to pinch a potential attacker before the notion of an actual attack is even a twinkle in his eyes.  But then again, rhetoric being what it is, much is said and written for impact, to make a point, to emphasize a belief and position, using words that might suggest a more radical approach in the real world when its purpose and intention is merely to persuade and inspire the slugs who occupy the easy chairs to get off their duff.

But the potential new federal crime of Hyperbole in the First Degree serves less to identify those who might actually do harm than to stifle expression at the core of democracy.  Words are necessary to convey messages, and they are often messy and over the top.  It’s not to say that inflammatory or vitriolic rhetoric is a joy of political expression, but that criminalizing it would be the death of political dissent. 

We might end up with nicer, calmer politics, but at the expense of honest dissent.  The use of subtle, nuanced discussion to make our positions clear, unfortunately, ended when William F. Buckley’s Firing Line was canceled.  Heck, he would have been forced to change the title of his show, given how it incites violence.

3.  The worst of the potential reactions is that elected officials feel constrained to keep their opinions to themselves.

“I know that I am considered to be a bit more confrontational and outspoken,” said Representative Maxine Waters, Democrat of California, “and I’ve lived with that all of my life, that my political philosophy and my willingness to speak up and speak out kind of creates risk and some danger. I accept that as part of my job.”

It is part of the job.  If elected officials, or candidates for political office, cease speaking their minds, leaving us with homogenized, sweet-appearing shells of people, how would we know for sure that they’re not a witch?  We need them to speak, loudly and clearly, if we’re to know who we’re putting in the seat to vote on our behalf.  Anything that stifles their open expression of their positions, or gives them a free pass to keep it to themselves for their own safety, denies us the opportunity to make intelligent choices.  Of course, to the extent we ever make intelligent choices.

A different idea, perhaps, should be considered.  One thing I’ve come to realize by writing this blawg and reading the comments people leave behind is that there are far, far more people out there who are within the range of DSM-IV than I would have believed.  Perhaps nutjobs tend to like tapping on keyboards more than normal folks, but they are certainly out there, and their ability to congregate and work themselves up online amongst themselves empowers them to believe that they aren’t nearly as crazy as others say, and have more support than they would have believe, sitting at home by themselves cooking up wild conspiracies.

Granted, acts of violence by people with mental illness against elected officials are still extremely rare.  It’s not like there’s an epidemic happening before our eyes.  But the solution to stopping this violence isn’t in criminalizing the world of the rest of us, or undermined basic tenets of democracy.  How about identifying those with mental illness and providing them treatment?  How about making sure that people whose minds struggle to function in a nonviolent way, who see harm as a viable means of expression, receive the care they desperately need?

Of course, it’s hardly as bold a reaction to a terrible tragedy than, say, establishing a new congressional protection service, or passing a slew of laws criminalizing the use of words that could be misinterpreted to suggest radical change.  But it might help to address the cause of the problem, and actually do some good in the process. 

No solution will ever eliminate all people with mental illness who, through the psychotic prism of their mind, see violence as the answer.  Nor will criminalizing speech, nor even providing round the clock protective services that isolate public officials from those they promised to represent.  But providing treatment to the mentally ill might actually do some good in the process, even if those receiving treatment aren’t inclined to pick up a gun and start shooting. 

If we need to have a knee-jerk reaction to this tragedy, would it be so terrible to have one that actually did some good for people? 

Update:  Via Eugene Volokh, my very own representative, Peter King, has come up with a new law!

New York Republican Rep. Peter King said Tuesday that he will introduce legislation to ban the carrying of any firearm within 1,000 feet of what he described as “high-profile government officials.” …

And hilarity ensues.  Aside from the over-abundant vagaries (who is a “high-profile government official”?) and imagine the likelihood of knowing one is within a 1,000 feet in a place lik Penn Station in Manhattan, where half a million people are within 1,000 feet of each other at rush hour, such a law does nothing to protect an official but merely gives the police another law with which to prosecute.  Because murder isn’t good enough?

We love Peter King, always an excellent source of amusement.

There will be wild speculation about why Jared Lee Loughner, 22, decided to shoot 19 people at a Safeway Supermarket.  It may be psychosis. It may be politics. It may be the combination of the two. 

As I know nothing more about this than anyone else reading and hearing reports, I offer the thoughts of Pima County Sheriff Clarence W. Dupnik.



Whether he’s right or wrong about Loughner, his words are worth hearing. 

If you thought the ABA Blawg 100 was silly, then you’ll really hate the Shorty Awards for best twitterer.

(And there’s still room for 35 characters). 

My personal fav twit of the day :

I’ve decided I officially hate the moniker “slackoisie” to describe my millennial sisters and brothers. Condescending, unfair & naccurate.

Tammy Cravit