While most eyes looked to the left coast as battle was joined between Apple and the government, a quieter battle was being fought in the Eastern District of New York before Magistrate Judge James Orenstein. Not exactly the same, but close enough.  As the sides jockeyed for position, to capture the hearts if not the minds of America, Mag. Orenstein was working away at Cadman Plaza, without the glare of the klieg lights that were shining on Magistrate Judge Sheri Pym.

Then, boom. Seemingly out of nowhere, Mag. Orenstein issued his decision, a 50-page opinion, covering the very issues under intense scrutiny in Silicon Valley.  If that name sounds remotely familiar, it’s likely because Mag. Orenstein played a significant role in the “Magistrates’ Revolt,” a cadre of federal magistrates who refused to sign off on any warrant the government put under their noses.

Orin “Eagle Eyes” Kerr, who is critical of the revolt, immediately picked up on this detail, that the decision came from Mag. Orenstein, and pounded it on the twitters.  His point, that Mag. Orenstein wasn’t as inclined to love the government and cater to its heartfelt needs as others, was beyond question.  So while this decision coming from Mag. Orenstein might blunt the “surprise” value, it didn’t bear upon whether he was right or wrong, or the intellectual and legal integrity of Mag. Orenstein’s opinion.

At Motherboard, however, Sarah Jeong sought to recap the remarkably lengthy (for a magistrate) decision. Continue reading →

At Prawfsblawg, lawprof Jonathan Witmer-Rich is doing his best to “unpack” the affirmative consent standard for sexual interactions, as currently required by law on New York and California college campuses, coerced by Department of Education fiat on campuses elsewhere, “urged” by the president of the United States, propounded as the general rule by progressive law professors at the American Law Institute and demanded by feminists.

The crux of Witmer-Rich’s analysis is that while the phrase “affirmative consent” is commonly used interchangeably with “yes means yes,” that’s not the legal standard.

The catchphrase of “affirmative consent” is “yes means yes.”  Journalists and advocates regularly use “yes means yes” as a shorthand for “affirmative consent.”  A New York Magazine article referred to “the notion of ‘affirmative consent’” as “every step toward sex being explicitly agreed to with a ‘yes.’”  On Vox, Jenée Desmond-Harris referred to California’s affirmative consent police as “making colleges replace the ‘no means no’ rule with a ‘yes means yes’ one.”

In my ongoing attempt to unpack what “affirmative consent” really means and does not mean, the first step is to be clear that affirmative consent standards do not, in fact, require an express verbal “yes.”  The phrase “yes means yes” may be a helpful slogan for educating students to be proactive in communicating about sex, but it is not the legal standard.

Continue reading →

Did Ronald Castille make the right decision when he decided that Terrence Williams needed to die?  Ronald Castille thinks so.  And really, shouldn’t that be good enough?

The mid-level appellate court didn’t think so.  Even worse, it didn’t take kindly to the fact that prosecutors knew that their star witness lied on the stand as to Williams’ purported motive to kill Amos Norwood.  He testified that it was a robbery, but he told prosecutors before trial that Williams killed Norwood because he sexually abused Williams, as well as other young boys.  The court condemned the prosecutors for concealing this evidence, for knowingly allowing their witness to lie to conceal from the jury the true motive for the killing.

But the Pennsylvania Supreme Court disagreed.

A state court found that the prosecutors had lied, and vacated Mr. Williams’s sentence. But the Pennsylvania Supreme Court unanimously reversed that ruling. The court’s chief justice at the time, Ronald Castille, wrote a concurring opinion criticizing the lower court’s ruling for “condemning” the prosecutors. Continue reading →

A hypothetical: A women is seated on a plane, minding her own business, when a man sits down in the seat next to her. The man turns to the fellow on the other side of him and starts telling jokes. One is tinged with sexual content in flagrant terms, that endorses assault, as in a sexual touching without affirmative consent. The next refers to race in a derogatory manner, dredging up offensive stereotypes as the source of humor.

The woman is offended. No, outraged. She calls for the flight attendant and informs her that this man’s jokes make her feel unsafe, threatened.  She demands that his seat be moved or, even better, that he shouldn’t be allowed to fly on the plane.  They have a lengthy flight ahead of them, during which she reasonably anticipates that she will try to sleep, and fears that this man will do something, touch her perhaps, while she is unconscious. Even if he doesn’t, she cannot bear to listen to his offensive speech for the duration of the flight.

Is she entitled to a safe space?  Should the flight attendant compel the man to move to another seat, to leave the plane if he can’t control himself?

What if the person on the plane was Renee Rabinowitz? Continue reading →

An experiment revealed a very curious thing. Of the 44 comments (as of now), only one came from a woman (thanks, Kath). Why would that be?  Some obvious possibilities:

1. Women do not read SJ, and its readership, as Cristian Farias suggested, consists of “hetero cis white males.”
2. Women are “terrified” (whether of me, math or leaving comments), as Vin Messina suggested.
3. Women, unlike men, either have no relevant work experience to offer, or nothing that compares with that offered by men.

If the first possibility is the case, it would be a particularly sad commentary on the state of gender affairs, as it suggests that women have no interest in reading about legal issues that don’t inure to their gender benefit. Continue reading →

Europe isn’t the United States.  That’s either a good thing or a bad thing, according to what the issue may be, and which side of it you’re on. When it’s useful to point to the choices made elsewhere, people are happy to do so. And then, they’re disdainful of such machinations when it’s not. Nothing surprising here.

So when the New York Times uses Europe as the measure of what is, and can be, permissible speech, one can only be deeply saddened that the litigant who hired Floyd Abrams to win New York Times v. Sullivan is only too happy to do the flippy-floppy with Europe when it’s convenient.  And apparently, when it comes to the use of social media and terrorism, the ambivalence is too hard to resist.

Even in the United States, where the Constitution proclaims that freedom of speech may be curbed only if it poses a “clear and present danger,” there is a legitimate debate about what this means in the context of the sort of horrific propaganda that ISIS has spread. In Europe, limits on what can be said or done in specific categories are not uncommon, such as laws in more than a dozen European nations that ban denial of the Holocaust.

Continue reading →

Damn video.  Without it, they would be building a statue on the campus of the State University of Albany for the three black women who would be victims of a horrible racist attack. A presidential candidate twitted her support. A college president rushed back to campus after sending a note to his community to express his outrage. Hundreds of students rallied to the cause.

The incident occurred on January 30, 2016, and one of the students, Asha Burwell, spread the word:

I just got jumped on a bus while people hit us and called us the “n” word and NO ONE helped us.

— Asha Burwell (@AshaBurwell) January 30, 2016

And on board everyone jumped. Continue reading →

It’s hard enough to communicate when many believe with the utmost sincerity that words mean whatever they feel they mean, dictionaries be damned.  But then, the right to individual pronouns is just the beginning of communication insanity. It’s damn near illuminating compared to the bottom of the communication pit, emojis.

And yet, we’ve reached the point where prosecution for threat by emoji is now seen as a viable, indeed, necessary course.

The smiley face, heart, praying hands and other “emoji” have become the way millions of Internet users playfully punctuate their texts, posts and messages, but for one middle schooler the icons brought the police to her door. Continue reading →

Some young people go out and find jobs, and are appreciative of the opportunity. But most don’t, never having the experience of what it means to work, to work for someone, to take orders, to do things they find “unpleasant,” to earn money that fails to meet their expectations of self-worth.

When they finally enter the workforce, they are shocked to find that they aren’t appreciated in the ways they were told they deserve. Their boss doesn’t respect them like their mommies, or their professors. Their opinions, so valid and respected before, are now worthless and unappreciated.  Their superiors are stupid because they don’t do or think as they feel they should.  They are not merely disappointed, but crushed by the failure of employment to meet their great expectations.

The New York Times, as so many others, sees a connection between the misery of young people entering the workplace with the lack of work experience growing up.  It decries the demise of the summer job. Continue reading →

I first heard of Talia Jane’s tale of woe from Keith Lee, who later wrote about it.  My sense was that it would be wrong to kick her when she was down. Sure, it was a product of poor choices, and she was certainly the poster girl for entitlement, but still. She was sad and pathetic, and being misguided and entitled isn’t a crime.

Coming out of college without much more than freelancing and tutoring under my belt, I felt it was fair that I start out working in the customer support section of Yelp/Eat24 before I’d be qualified to transfer to media. Then, after I had moved and got firmly stuck in this apartment with this debt, I was told I’d have to work in support for an entire year before I would be able to move to a different department. A whole year answering calls and talking to customers just for the hope that someday I’d be able to make memes and twitter jokes about food. If you follow me on twitter, which you don’t, you’d know that these are things I already do. But that’s neither here nor there. Let’s get back to the situation at hand, shall we?

So here I am, 25-years old, balancing all sorts of debt and trying to pave a life for myself that doesn’t involve crying in the bathtub every week.

Keith explained it thus:

Every stereotypical thing wrong with Millennials you’ve ever read. The writer:

• Moves from modest area of the country, to the most expensive.
• Has useless degree, surprised it only qualified her for entry level job.
• Whines about entry level job, not being paid 6 figures to make meme jokes.
• Claims she can’t afford food, her Insta is filled with big meals.
• Complains work-provided snacks are not refilled on the weekends.
• Writes open letter to CEO full of her “amazing ideas,” surprised she is fired.
• Works at low-level job for less than a year, is complaining on Twitter about getting her “severance.”
• Signs off with e-begging.

I can’t even.

The problem isn’t so much with her choices, but her complaining about the natural consequences of her choices.  Some of these may have valid reasons, such as food pics on “Insta,” which may contradict her claims or may have a perfectly valid explanation. No matter. Keith “can’t even.” I can “even” a little more, largely because Talia Jane isn’t much different than many young people I’ve met. Perfectly nice young people. Well educated young people. Passionate young people. And sad and pathetic young people when life didn’t work out the way they were certain it would. Certain, because, well they were entitled to it.

Then another young woman, Stefanie Williams, replied to Talia Jane. Unkindly, perhaps, but not without reason and some advice. Like Talia, things didn’t work out well at first, so she worked hard and, eventually, did better.

Six months later, I was offered the weekend bartending shifts for the month of December. Long hours, lots of stress, I smelled like bad citrus and stale beer most of the time, I had to miss Christmas Eve, Christmas Day and New Years Eve with my family and friends, but I jumped at the opportunity. And all of a sudden, after about a year, I was making enough money to live. And after several years, I was making enough money to live well.

Hard work, sacrifice and it turned out okay. That’s nice for you.  But yet another woman, Sara Lynn Michener, decided to make it a trilogy on Medium.

After reading your bizarre excuse for a mini autobiography detailing the privileged yet banal struggle you dealt with in your early 20s, which was apparently supposed to be a response to a younger woman’s perfectly reasonable request for a larger hourly rate, I felt it imperative to give you a taste of your own medicine and above all, your painfully deep need to acknowledge your own privilege, so maybe some advice will help while you piss all over what — to me — sounds an awful lot like a less fortunate (and far kinder) version of your younger self. If nothing else, I hope you might learn the meaning of the “grace and humility.” you’ve anointed yourself with.

Spoiler: kicking a younger sister when she’s down in self-congratulatory snark is neither gracious nor humble.

While I was a bit put off by the “kicking a younger sister” bit, as if women should be kinder to their own gender, what I found most disturbing was Michener’s title:

36 year-old DESTROYS 29-year-old millennial who “ripped” 25-year-old Yelp employee who got fired after complaining about her salary

Apparently, Michener thought rather well of her effort. But she called Williams “privileged,” and that’s what prompted me to write about this.

Some of us don’t have mothers at all. But not you. Only privileged people are embarrassed to be working as a waitress because their very present mothers are waiting there, full of love, for you to blossom (in your case into a snarky self-satisfied prat).

And:

I can’t even imagine what life must be like for people that privileged. Perhaps you are one of those people, Stefanie. It would explain a lot about how you OWN every single one of your blessings and label it as “having a work ethic” But I don’t see any more of a work ethic than what Talia has. You were willing to work a shitty job; You want a medal for it. Talia just wants to eat.

What to make of all this? The word “privilege” has been used as an attack and excuse. It seems to be what some have and others want, and still others demand it be given up, though it makes little sense, as if making one’s life harder is a wise, or even a realistic, choice. Especially at a time when things are hard for everyone.

There’s room for empathy. There’s also room for a reminder about the value of hard work, smart choices, realistic thinking and recognition that you’re promised the opportunity to pursue happiness, not a right to obtain it.

Don’t kick Talia Jane when she’s down. Don’t rub her tummy as if she had no hand in creating her circumstances either. And if you want to help Talia Jane, help her to see the error of her misguided sense of entitlement rather than make excuses for her victimhood.  Talia Jane needs to eat. She can’t eat excuses. I wish her the best of luck in her quest to find a fulfilling life.  And if she has some “privilege” upon which to draw, I hope she does so successfully.