It has to suck when your religion proves itself false, but it’s a necessary hurt, as New York Times editor Bari Weiss came to realize.

This weekend, at a lesbian march in Chicago, three women carrying Jewish pride flags — rainbow flags embossed with a Star of David — were kicked out of the celebration on the grounds that their flags were a “trigger.” An organizer of the Dyke March told the Windy City Times that the fabric “made people feel unsafe” and that she and the other members of the Dyke March collective didn’t want anything “that can inadvertently or advertently express Zionism” at the event.

Notice that she wrote “the fabric made people feel unsafe.” Not the actions of any individual. No one threatened to clock someone else over the head, as if they held a bike lock. It was just fabric. Ridiculous, right? How can fabric make anyone feel unsafe? Of course, it can’t, but that’s the perpetual rhetoric, which worked well enough until it came back to bite some of their own.

Intersectionality is the big idea of today’s progressive left. In theory, it’s the benign notion that every form of social oppression is linked to every other social oppression. This observation — coined in 1989 by Kimberlé Williams Crenshaw — sounds like just another way of rephrasing a slogan from a poster I had in college: My liberation is bound up with yours. That is, the fight for women’s rights is tied up with the fight for gay rights and civil rights and so forth. Who would dissent from the seductive notion of a global sisterhood?

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Radley Balko has spent an enormous amount of time and effort destroying the myth around two “expert” witnesses, Drs. Steven Hayne and Michael West, who are responsible for destroying a great many innocent lives by testifying to whatever nonsensical crap was needed for the government to get a conviction. Their stories are the subject of his upcoming book,
Dr. Death and the Country Dentist: A True Story of Corruption and Injustice in the American South.

Two of their victims, Levon Brooks and Kennedy Brewer, after being exonerated, tried to fight back.

In 1992, Plaintiff Levon Brooks was convicted of the murder of three- year-old Courtney Smith. In 1995, Plaintiff Kennedy Brewer was convicted of the murder of three-year-old Christine Jackson. When one Justin Albert Johnson later confessed to both crimes, the convictions of Brooks and Brewer were vacated. Each then sued Dr. Steven Hayne and Dr. Michael West, asserting claims under 42 U.S.C. § 1983, alleging that the forensic consultants violated their constitutional rights under the Fourth and Fourteenth Amendments when, as retained government experts, they provided investigators with—and later testified to—baseless findings regarding bite marks on the victims’ bodies; that they knew that the evidence was baseless or at least acted with reckless disregard of that reality.

Bite marks. Just to be absolutely clear, bite marks identification evidence is complete, total junk science. It doesn’t work, which is how Hayne and West became the leading “experts” in bite mark evidence. And we know that because subsequent DNA evidence conclusively precluded Brewer from being the perpetrator, but matched another man who confessed to the crime. Continue reading →

There are many grievous wrongs to be found in LaLaLand, but for an actress, the worst of all is to be old. Sure, they may cry about the egregious discrimination against the marginalized, but they hate the wrinkled. So when actor central website, IMDb, included dates of birth in its bios, the Republic of California cried foul and passed a law to prohibit it from telling the truth if it made people feel bad.

At the urging of the Screen Actors Guild, the California Legislature passed, and the Governor signed into law, Assembly Bill 1687. Although the language of the statute doesn’t mention IMDb, it’s drafted to apply only to IMDb, with the goal of restricting the company’s ability to post information on IMDb.com (the public-facing website) about the ages of people in the entertainment industry. Specifically, the statute provides that if a person who subscribes to IMDb Pro asks the company to refrain from publishing her age on IMDb.com, the company must comply with that request. The theory behind the statute is that IMDb.com, by publicly posting information about the ages of people in the entertainment industry, makes it easier for casting directors and others in the industry to engage in age discrimination.

So IMDb sued, because First Amendment and all, compelling California to justify its law under the standard of strict scrutiny. It didn’t go as well as California hoped.

The government was able to articulate a compelling purpose (namely, a desire to combat age discrimination in the entertainment industry), but it was unable to present meaningful evidence or argument in support of the notion that the statute is actually necessary to achieve that purpose.

What to do when you have neither evidence nor argument to justify the need for censorship? Discovery!

The government (joined by the Screen Actors Guild, which has intervened to help defend the statute) has now filed a motion for discovery. The government seeks permission to serve 28 document requests and 7 interrogatories, and it seeks to take depositions of IMDb representatives on 7 topics.

As Judge Vince Chhabria notes, the usual next step is cross motions for summary judgment on the First Amendment issue, because the government either has its justification for censorship when it enacted a law that facially violates the First Amendment or not. What it does not do is try to discover a reason from the other side after the fact or harass a website into submission:

In addition, while the government’s approach to discovery in this context is disturbing, two of the discovery requests are even worse: they are an outright abuse of power. It’s difficult to conceive of a reason, other than harassment, for seeking communications between IMDb and the people who filed amicus briefs on IMDb’s behalf. It’s difficult to conceive of a reason, other than harassment, for seeking information about IMDb’s efforts to lobby against AB 1687. Certainly counsel for the government was unable to think of one at the hearing on this motion.

It’s not that discovery is never available, but it only serves to illuminate open questions of fact, of which none existed here.

But in this case, IMDb contends the statute violates the First Amendment on its face. Any argument that IMDb is not subject to the statute (which was drafted to apply specifically to IMDb) would be frivolous. And the government has identified no factual question that would meaningfully affect the analysis of the constitutionality of the statute on its face.

And with that, Judge Chhabria drops the hammer.

It’s one thing for a legislature to enact a speech restriction without an adequate justification. That sometimes happens. It’s another thing for the government’s lawyers to double down on their client’s constitutional error by imposing irrelevant, burdensome, even harassing discovery obligations on a party that seeks only to vindicate its First Amendment rights in court. That should never happen. The motion for discovery is denied.

The First Amendment applies to the Chardonnay State, even when they seek to stop the publication of the truth in the name of ending accuracy discrimination (or is age just a social construct too?). Or as the judge summed it up in one sentence:

Restrict speech first and ask questions later, the government seems to say.

Ageless.

H/T JimTyre

You love the Second Amendment? Good for you. It’s your Constitution and you are entitled to the protections it offers, though you would do well to remember that it’s an all-or-nothing proposition. Not being into guns, it’s not high on my personal list, but a few others matter a great deal to me, and so I will defend the bundle of the Bill of Rights for both of us.

When the ACLU strays from its mission of defending constitutional rights and panders to the social justice warriors, I’ve said some unpleasant things about it. While it still does good when it’s not conflicted between rights and feelz, it panders to the shallow and foolish while living off its Skokie legacy. Bad as it is, the National Rifle Association is worse.

It may love it some guns, but it loves cops more. When Philando Castile was killed for lawfully carrying a gun, the NRA’s silence was deafening. Some chalked it up to Castile being black. I chalk it up to his killer being blue. If the ACLU is conflicted, it’s nothing compared to the NRA’s conflict between the Second Amendment and police. Police win every time.

But just as the ACLU is using media to push its pandering for cash, the NRA is not to be outdone: Continue reading →

When the video of Chicago cop-cum-murderer Jason Van Dyke shooting Laquan McDonald 16 times in the street like a dog finally surfaced, it was a double revelation. The first revelation was about Van Dyke, but the video makes that obvious. The second revelation was about Chicago, about their cops, about how easily that video could have remained concealed so that no one ever knew the lies, saw the killing, realized how Rahm’s Second City labored to keep its secrets.

While it’s not the full answer by a long shot, considering that the first name isn’t Emmanuel, it’s more than we would ordinarily expect to get: three Chicago cops have been indicted for their complicity in the cover-up of McDonald’s murder.

Three longtime police officers were charged on Tuesday in connection with the death of Laquan McDonald, the black teenager whose fatal shooting in 2014 at the hands of a white Chicago officer ignited intense scrutiny over police conduct and transparency.

The officers were indicted on state felony counts of conspiracy, official misconduct and obstruction of justice. Among the claims were that they provided false reports about how Mr. McDonald, 17, behaved when he encountered Officer Van Dyke on a Southwest Side street one evening in October 2014; and that the officers went so far as to work together to sidestep interviewing at least three witnesses whose accounts of events would have conflicted with the official police version.

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The twit by USA Today was exactly the sort of message designed to make progressive skin crawl:

The Supreme Court has agreed to reopen the national debate over same-sex marriage.

So it’s true, the world is coming to an end now that the Republican’s stole a Supreme Court seat and installed uber-villian Neil Gorsuch to undo Obergefell v.Hodges? No. Not even a little bit. Not that the forces of tolerance will bother to learn anything more about the case of Masterpeice Cake Shop v. Colorado Civil Rights Commission.

The case has nothing to do with the legality of gay marriage, but deals with the sequalae of the Obergefell,  Now that same-sex marriage is lawful, how does that impact the panoply of rights of others? This is what follows, and should follow, a paradigm shift in constitutional law, as some other person’s “right” to do as he pleases commonly impacts with another person’s “right” to do as he pleases. It’s inconvenient when promoting a shift in law to recognize that it has problematic tentacles, but they eventually have to be dealt with. Masterpiece is one such case. Continue reading →

The charge was providing material support for terrorism, which means two things: first, that the defendant is subject to presumptive detention. Second, it’s terrorism, which changes everything. As everyone knows, inter arma enim silent legēs, and there’s a war on terror. All the newspapers say so.

But not even the word “terror” keeps its sting forever, and Colorado Senior District Court Judge John Kane finally hit the wall.

A federal judge in Denver on Friday ordered the release of an Uzbekistan terror suspect held for 5½ years without trial on charges he provided material support to the Islamic Jihad Union.

Charges are still pending against Jamshid Muhtorov, and he will remain at the GEO Aurora Detention Center, 3130 N. Oakland St. in Aurora, until a release hearing Monday in which Senior U.S. District Judge John Kane will determine conditions of his release.

There will be a hearing, and conditions for release will be set by Judge Kane. What they will be, and whether they’re doable*, presents an interesting question. What if the government seeks a condition that’s too onerous or impossible to achieve? Does Muhtorov then stay in jail? But that’s getting ahead of the case. The question remains how it’s possible that more than five years after arrest, a presumptively innocent person remains in jail at all. Continue reading →

Trickle down economics didn’t work the last time it was tried to boost America’s economic fortunes by cutting taxes for the rich and corporations, then waiting for that spare change to find its way into the pockets of working folks downstream. But trickle down poverty works better.

Dawn Nasewicz comes from a family of steelworkers, with jobs that once dominated the local economy. She found her niche in retail. She manages a store, Ooh La La, that sells prom dresses and embroidered jeans at a local mall. But just as the jobs making automobile springs and rail anchors disappeared, local retail jobs are now vanishing.

“I need my income,” said Ms. Nasewicz, who was told that her store will close as early as August. “I’m 53. I have no idea what I’m going to do.”

The problem isn’t complex. Unemployed customers are eventually forced to stop buying, particularly things that aren’t absolute necessities. So when the primary driver of a local economy folds or moves, it takes down the secondary economy as well. Forget Abe Maslow’s hierarchy; they need food on the table. Continue reading →

Much has been made of the acquittal of Jeronimo Yanez for the killing of Philando Castile, and lets not forget that this isn’t the first time that the batting average of prosecutors took a dive when it was a cop in the dock. Greg Prickett provides a short review.

University of Cincinnati Police Officer Ray Tensing just had his second trial for the murder of Samuel DeBose end in a hung jury. In Minnesota, Saint Anthony Police Officer Jeronimo Yanez was acquitted for the killing of Philando Castile. In Wisconsin, Milwaukee Police Officer Dominique Heaggan-Brown was acquitted in the reckless homicide of Sylville Smith. Tulsa Police Officer Betty Jo Shelby was found not guilty of manslaughter. Hummelstown, Pennsylvania Police Officer Lisa Mearkle acquitted of murder. Cleveland Police Officer Michael Brelo, acquitted. North Charleston Police Officer Michael Slager, mistrial on state murder charge. I could go on and on.

Greg’s purpose isn’t to fuel another round of outrage, or to set the stage for more demands that the system confess to racism. Rather, he suggests that this may not be a bad thing.

When you have a police officer shoot and kill someone, it has been extremely rare that the officer is criminally charged, but that’s changing. It is believed that Yanez is the first Minnesota police officer that has faced trial for an on-duty shooting. Shelby was the first Tulsa officer prosecuted for an on-duty shooting. It’s rare, but things are changing, and that’s a good sign. As a society, we need to hold police officers accountable, and to do that, we put them in front of a jury, in front of our fellow citizens, who we entrust to do their duty and determine if the state has proved its case beyond a reasonable doubt.

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Remember that tech train lawyers were told they had to hop on or it would pass them by? Well, it doesn’t stop in New Jersey anymore.

On June 21, 2017, the Advisory Committee on Professional Ethics, Committee on Attorney Advertising, and Committee on the Unauthorized Practice of Law issued a Joint Opinion (ACPE Opinion 732, CAA Opinion 44, UPL Opinion 54) stating that the legal service program operated by Avvo through its website is an impermissible lawyer referral service, in violation of Rules of Professional Conduct 7.2(c) and 7.3(d), and comprises improper fee sharing with a nonlawyer in violation of Rule of Professional Conduct 5.4(a). New Jersey lawyers may not participate in the Avvo legal service program.

The program specifically referred to is Avvo Advisor, its 15 minute consultations for $39.95, of which Avvo takes $10 as its advertising fee. New Jersey calls bullshit.

The first question asks whether lawyers who participate in these programs are engaged in impermissible fee sharing in violation of Rule of Professional Conduct 5.4(a) (“[a] lawyer shall not share legal fees with a nonlawyer”). The Committees find that the Avvo business model violates Rule of Professional Conduct 5.4(a). The participating lawyer receives the set price for the legal service provided, then pays a portion of that amount to Avvo. The label Avvo assigns to this payment (“marketing fee”) does not determine the purpose of the fee.

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