November 28, 2015

“Free speech” means more than just allowing speech you happen to agree with

Filed under: Europe, Law, Liberty — Tags: , , , , — Nicholas @ 04:00

Brendan O’Neill reminds us that being a supporter of free speech requires you to support those who don’t always agree with you or express themselves in ways you’re comfortable with:

It’s the 21st century and Europe is meant to be an open, enlightened continent, and yet a man has just been sentenced to jail — actual jail — for something that he said. Will there be uproar? It’s unlikely. For the man is Dieudonné M’bala M’bala, the French comedian, and what he says — that Jews are scoundrels and the Holocaust is a fiction — is deeply unpleasant. Yet if we’re serious about freedom of speech, if we are truly committed to ensuring everyone has the liberty to think and say whatever they please, then the jailing of Dieudonné should outrage us as much as the attempts to shut down Charlie Hebdo or the jailing of a Saudi blogger for ridiculing religious belief. We should be saying ‘Je Suis Dieudonné’.

Due to the regimen of hate-speech laws in 21st-century Europe — which police and punish everything from Holocaust denial to Christian denunciations of homosexuality — Dieudonné has been having run-ins with the law for years. In 2009, a French court fined him €10,000 for inviting a Holocaust denier on stage during a gig. In March this year, a French court gave him a two-month suspended prison sentence for saying he sympathised with the attack on Charlie Hebdo and with the anti-Semite who murdered Jews at a Parisian supermarket a few days later. Now, this week, a Belgian court has given him an actual prison sentence: a court in Liège found him guilty of incitement to hatred for making anti-Semitic comments during a recent show and condemned him to two months in jail.

In all these cases, Dieudonné has been punished simply for thinking and saying certain things. This is thought-policing. It’s a PC, spat-and-polished version of the Inquisition, which was likewise in the business of raining punishment upon those who said things the authorities considered wicked. To fine or imprison people for expressing their beliefs is always a scandal, regardless of whether we like or hate their beliefs. Dieudonné really believes the Holocaust is a myth, as much as a Christian fundamentalist believes that people who have gay sex will go to hell or American liberals believe Hillary Clinton will make a good president. He is wrong, massively, poisonously so; but then, so are those Christians about gays and those liberals about Hillary. If every person who says wrong, malicious or stupid things were carted off to jail, Europe’s streets would be emptied overnight.


It is incredibly illiberal for the state to police hatred. Hatred might not be big or clever, but it’s only an emotion. And officialdom has no business telling us what we may feel — or think, or say, or write. Allowing the state to monitor belief represents a brutal reversal of the Enlightenment itself. John Locke, in his Letter Concerning Toleration (1689), set the tone for the Enlightenment as an attempt to ‘settle the bounds’ between the business of government and the business of morality. ‘The business of laws is not to provide for the truth of opinions, but for the safety and security of every particular man’s goods and person’, he wrote. That ideal is now turned on its head. Across Europe, governments ‘provide for the truth of opinions’, and in the process they silence those they don’t like and patronise the rest of us, reducing us to imbeciles incapable of working out what is right and wrong, and of speaking out against the wrong.

All hate-speech laws should be scrapped. Dieudonné should be freed. And a continent whose governments argue against the imprisonment of bloggers in Saudi Arabia while jailing comedians at home needs to take a long, hard look in the mirror.

November 20, 2015

Canada’s dubious gains from the TPP

Filed under: Cancon, Law, USA — Tags: , , — Nicholas @ 02:00

Michael Geist gives an overview of the pretty much complete failure of Canadian negotiators to salvage anything from the Trans-Pacific Partnership agreement:

The official release of the Trans Pacific Partnership (TPP), a global trade agreement between 12 countries including Canada, the United States, and Japan, has sparked a heated public debate over the merits of the deal. Leading the opposition is Research in Motion founder Jim Balsillie, who has described the TPP as one of Canada’s worst-ever policy moves that could cost the country billions of dollars.

My weekly technology law column […] notes that as Canadians assess the 6,000 page agreement, the implications for digital policies such as copyright and privacy should command considerable attention. On those fronts, the agreement appears to be a major failure. Canadian negotiators adopted a defensive strategy by seeking to maintain existing national laws and doing little to extend Canadian policies to other countries. The result is a deal that the U.S. has rightly promoted as “Made in America.” [a video of my recent talk on this issue can be found here].

In fact, even the attempts to preserve Canadian law were unsuccessful. The TPP will require several important changes to domestic copyright rules including an extension in the term of copyright that will keep works out of the public domain for an additional 20 years. New Zealand, which faces a similar requirement, has estimated that the extension alone will cost its economy NZ$55 million per year. The Canadian cost is undoubtedly far higher.

In addition to term extension, Canada is required to add new criminal provisions to its digital lock rules and to provide the U.S. with confidential reports every six months on efforts to stop the entry of counterfeit products into the country.

November 19, 2015

“Changing Canada’s copyright term … means two decades where zero historical work enters the public domain”

Filed under: Cancon, Law, Media — Tags: , , , , , — Nicholas @ 03:00

There may be good parts of the Trans-Pacific Partnership deal, but there are emphatically bad parts, as Jesse Schooff describes in the particular case of the arbitrary extension of copyright in Canada from fifty years to seventy years:

One of the TPP areas of scope which is critical to discuss is the section on copyright. At this point, several notable bloggers* have covered the TPP’s copyright extension provisions in great detail. But what do those provisions mean for you? Let’s bring it down to the ground. For example: folks in my demographic seem to love seeing old-timey photos of their city. Here in Vancouver, exploring our retro-downtown through old photographs of various eras is practically an official pastime.

A quality source of such photo collections is a city’s municipal archives. Traditionally, an archives’ mandate is to store physical objects and documents, which include the physical “analog” photos taken during most of the 20th century. “Great!” someone might say, “the archives can just digitize those photos and put them up on their website, right?”

Let’s ignore the fact that the solution my strawperson proposes has a host of logistical issues attached, not the least of which is the thousands of work-hours required to digitize physical materials. Our focus is copyright — just because the archives has the original, physical photo in their collection doesn’t mean that they own the rights to it.

You have to remember that our newfangled, internet-enabled society is relatively new. When I was a child, if a person wanted to see a historical photo from a city archives, they would actually have to physically GO to said archives and ask an archivist to retrieve the appropriate fonds containing the photo. Journalists and other professionals likely did this regularly, but for the most part, the public at large didn’t usually head down to a municipal building and ask an archivist to search through their collection just to look at a few old photos.

Today, things are much different. If a municipal archives has digitized a significant portion of, say, their collection of 19th and 20th century historical photos, then those photos can be curated online; made accessible to the public at large for everyone to access, learn from, and enjoy!


Some of the photos, we’ll call them “Group A”, were explicitly released into the public domain by the photographer, so those are okay to use. Another bunch, “Group B”, are photos whose photographer died more than fifty years ago (1965 and before); any copyright on these photos is expired. Some “Group C” photos were commissioned by a businesses, or the rights were specifically sold to a corporation, which means that the archives will have to get permission or pay a fee to make them available online. Most frustrating is the big “Group D”, whose authorship/ownership is sadly ambiguous, for various reasons**. It would be risky for the archives to include the Group D photos in their collection, since they might be violating the copyright of the original author.

So already, knowing and managing the tangle of copyright laws is a huge part of curating these event photos. Hang on, because the TPP is here to make it even worse.

It’s been long-known that the United States is very set on a worldwide-standard copyright term of seventy years from the death of the author. Sadly, such a provision made it into the TPP. Worse still, a release by New Zealand’s government indicates that this change could be retroactive, meaning that those photos in my hypothetical “Group B” would be yanked out of the public domain and put back under copyright.

November 16, 2015

The Ontario government’s anti-SLAPP legislation

Filed under: Cancon, Law, Liberty — Tags: , , — Nicholas @ 03:00

At Techdirt, Tim Cushing looks at the positive and not-so-positive aspects of newly introduced Bill 51:

Good news for Canadians! Well…some of them. This good news only applies to a) Ontario residents who a.1) aren’t vexatious litigants who use BS defamation lawsuits to silence critics.

    Bill 52, which changes the Courts of Justice Act, the Libel and Slander Act and the Statutory Powers Procedure Act, received royal assent Nov. 3.

    The bill contains a provision that “would allow the courts to quickly identify and deal with lawsuits that unduly restrict free expression in the public interest, minimizing costs and other hardships endured by the defendant,” said Yasir Naqvi, Ontario’s Liberal Community Safety and Correctional Services Minister, last March during a debate on the bill. “It will extend qualified privilege in defamation law under the Libel and Slander Act.”

In other words, it’s an anti-SLAPP law. A handful of states in the US have recognized the damage bogus litigation can do to defendants even when plaintiffs clearly don’t have an actionable case. Laws like these also neutralize the chilling effect of bogus legal threats. Holding frivolous litigants responsible for legal fees tends to greatly reduce the number of questionable cease-and-desist demands issued by would-be litigants.

That such a law would be passed in Canada is somewhat of a coup considering its courts’ bizarre decisions in defamation cases. In some cases, courts have come to rational conclusions (Google is not a “publisher” of defamatory material simply by linking to it in search results). In others, courts opened up brand new avenues of liability, like in the case of blogger Michael Veck, who was ordered to pay $10,000 to the defamed party despite only re-posting what another writer had actually written.

November 12, 2015

Small claims court case with wider copyright implications

Filed under: Cancon, Law, Media, Wine — Tags: , , — Nicholas @ 04:00

Michael Geist discusses a recent small claims court judgement:

… the case involved the president of the Canadian Vintners Association (CVA), who received an email from Blacklock’s Reporter, an Ottawa-based political publication, advising that he was quoted in an article discussing a recent appearance before a House of Commons committee. The man did not subscribe to the publication, which places its content behind a paywall, so he contacted a member of the association who was a subscriber and asked if he could see a copy of the article. When Blacklock’s Reporter learned that he had received a copy from the subscriber, it demanded that he pay for a full subscription or face a copyright infringement lawsuit.

While this does not sound like a copyright case, the Ottawa court ruled that the man had violated Canada’s copyright rules by breaching the publication’s paywall (an act it described as a circumvention of a digital lock) and awarded $11,470 in damages plus an additional $2,000 in punitive damages.

The Canadian digital lock rules were enacted in 2012 under pressure from the United States, which wanted Canada to mirror its safeguards on e-books, DVDs, and other digital content. Those rules typically cover circumvention of popular consumer products, but rarely involve website access. In fact, there are several U.S. cases that have concluded that sharing a valid username and password combination with someone else does not constitute circumvention for the purposes of the law.

Yet in the Blacklock’s Reporter case, the president of the CVA did not even try to access the publication’s site with someone else’s credentials. Indeed, it is difficult to see how asking for a copy of a lawfully obtained article could possibly be considered circumvention of a digital lock. Moreover, there is also a strong argument based on several Supreme Court of Canada decisions that providing the copy qualifies as fair dealing under Canadian copyright law.

As a small claims court ruling, the case has no value as precedent (and could still be appealed). However, it places the spotlight on the restrictive digital lock rules that have already caused a chilling effect within Canadian educational institutions, which often fear that circumvention for legitimate, educational purposes may violate the law.

November 9, 2015

Shocking cheese-related crime in France

Filed under: Europe, Humour, Law — Tags: , , — Nicholas @ 03:00

Ace of Spades H.Q. has the details:

Sacre Vache! Thieves Steal 4 Tonnes of Comte Cheese, In What Police Are Calling “A Crime That Happened This Century”

Four tonnes of comte. Street value: almost one half of one million dollars, maybe more if you step on it and cut it with brie.

Police describe themselves as “vaguely interested” in this case.

Interpol has been called, but didn’t pick up a phone. So an email was sent. The email was marked, “When you get to it.”

    Some thieves in France have made off with a rather odd prize recently — four tonnes of cheese.

    Police were called to a break-in on Monday in which the owner of the Napier dairy in the town of Goux-les-Usiers discovered some crooks had stolen roughly 100 wheels of comte, a luxury cheese which can only be made in the Franche-Comte region using unpasteurised cow’s milk.

Unpasteurized — that’s the good shit. That’s what hooks you, that’s what makes you a junkie. Once you’re hooked on cheese made of unpasteurized milk, you’ll spend the rest of your life “Chasing the Cow,” walking down lonely streets and breaking into seedy fromageries looking to score your next “wheel.”

    It might seem like a crime by someone with a fairly extreme dairy fetish, but police believe the cheese was stolen by a gang who will sell it on the black market.

    Comte can sell for 40 [Euros] a pound, making it just as valuable to thieves as jewellery or electrical goods.

You can tell how “pure” cheese is by sticking your pinky into it and then rubbing the cream on your gums. If your gums feel like they’re on fire — that’s pure, baby.

November 7, 2015

QotD: Humane punishment for criminals

Filed under: Government, Law, Quotations — Tags: , — Nicholas @ 01:00

Modern countries pride themselves on their humane treatment of prisoners. And by “humane”, I mean “lock them up in a horrible and psychologically traumatizing concrete jail for ten years of being beaten and raped and degraded, sometimes barely even seeing the sun or a green plant for that entire time, then put it on their permanent record so they can never get a good job or interact with normal people ever again when they come out.”

Compare this to what “inhumane” countries that were still into “cruel and unusual punishment” would do for the same crime. A couple of lashes with the whip, then you’re on your way.

Reader. You have just been convicted of grand theft auto (the crime, not the game). You’re innocent, but the prosecutor was very good at her job and you’ve used up all your appeals and you’re just going to have to accept the punishment. The judge gives you two options:

1) Five years in prison
2) Fifty strokes of the lash

Like everyone else except a few very interesting people who help provide erotic fantasies for the rest of us, I don’t like being whipped. But I would choose (2) in a fraction of a heartbeat.

And aside from being better for me, it would be better for society as well. We know that people who spend time in prison are both more likely to stay criminals in the future and better at being criminals. And each year in jail costs the State $50,000; more than it would cost to give a kid a year’s free tuition at Harvard. Cutting the prison system in half would free up approximately enough money to give free college tuition to all students at the best school they can get into.

But of course we don’t do that. We stick with the prisons and the rape and the kids who go work at McDonalds because they can’t afford college. Why? Progressives!

If we were to try to replace prison with some kind of corporal punishment, progressives would freak out and say we were cruel and inhumane. Since the prison population is disproportionately minority, they would probably get to use their favorite word-beginning-with-“R”, and allusions would be made to plantation owners who used to whip slaves. In fact, progressives would come up with some reason to oppose even giving criminals the option of corporal punishment (an option most would certainly take) and any politician insufficiently progressive to even recommend it would no doubt be in for some public flagellation himself, albeit of a less literal kind.

So once again, we have an uncanny valley. Being very nice to prisoners is humane and effective (Norway seems to be trying this with some success), but we’re not going to do it because we’re dumb and it’s probably too expensive anyway. Being very strict to prisoners is humane and effective – the corporal punishment option. But being somewhere in the fuzzy middle is cruel to the prisoners and incredibly destructive to society – and it’s the only route the progressives will allow us to take.

Scott Alexander, “Reactionary Philosophy In An Enormous, Planet-Sized Nutshell”, Slate Star Codex, 2013-03-03.

November 6, 2015

QotD: The slow erosion of freedom of expression

Filed under: Law, Liberty, Media, Quotations — Tags: , , — Nicholas @ 01:00

This slow erosion of freedom of expression has come about in ways both social and legal. Before the 1960s, arguments for censorship tended to focus on sexual morality, pornography and obscenity. The censors themselves were usually depicted as benighted moral conservatives — priggish maiden aunts. Freedom of political speech, however, was regarded as sacrosanct by all. As legal restraints on obscenity fell away, however, freedom of political speech began to come under attack from a different kind of censor — college administrators, ethnic-grievance groups, gay and feminist advocates.

The new censors advanced such arguments as that “free speech can never be an excuse for racism.” These arguments are essentially exercises both in begging the question and in confusing it. While the principle of free speech cannot justify racism any more than it can disprove racism, it is the only principle that can allow us to judge whether or not particular speech is racist. Thus the censor’s argument should be reversed: “Accusations of racism can never be an excuse for prohibiting free speech.”

Meanwhile, the narrowly legal grounds for restricting speech changed, too. Since the 18th century, the basic legal justifications for restricting political speech and publication were direct incitement to harm, national security, maintaining public order, libel, etc. Content wasn’t supposed to be considered (though it was sometimes smuggled in under other headings).

Today, content is increasingly the explicit justification for restricting speech. The argument used, especially in colleges, is that “words hurt.” Thus, universities, parliaments, courts and various international bodies intervene promiscuously to restrict hurtful or offensive speech — with the results described above. In the new climate, hurtful speech is much more likely to be political speech than obscene speech.

John O’Sullivan, “No Offense: The New Threats to Free Speech”, Wall Street Journal, 2014-10-31.

October 29, 2015

For a change, a sensible trademark ruling

Filed under: Americas, Business, Cancon, Law — Tags: , , , — Nicholas @ 03:00

Timothy Geigner on a remarkably sensible trademark judgement from a BC court:

For this, we travel up to Canada, where a Federal Court judge presided over a trademark dispute between Pacific Western Brewing and Cerveceria del Pacifico over the branding of their brews. At issue was the labels on packaging for PWB’s Pacific Pilsner and Cerveceria’s Pacifico Clara. PWB argued at court that the branding and language was too similar and would confuse customers. Here are samples of each beer’s branding.

Pacific Pilsner vs Pacifico Clara Cerveza

So, yeah, other than roughly similar uses of the word “Pacific”, there’s not a whole lot of similarity here. Normally, this is about when we’d hold our collective breaths and wait to see if the court comes down with a sensible ruling based on the likelihood of customer confusion, or if the court instead chooses the over-protectionist route, focusing on the common language and nothing else. In this case, Justice Luc Martineau appears to have gotten every last bit of it right.

    Martineau said the first impression given by the label Cerveceria uses for its Pacifico brand “is of its obviously foreign origin” and that it’s “highly stylized, with many distinctive design elements, including strong and contrasting colours and font in red, gold, blue, green and yellow.” He further said the label “differs visually, phonetically, and semantically” from all of the marks PWB uses for its Pacific brands of beers.

    Martineau also dismissed as without merit PWB’s argument that contrary to a statement on the register, Cerveceria del Pacifico was not first sold in Canada as early as April 1986. He noted that an affidavit from Cerveceria stating the beer was introduced at Expo ’86, where it was sold at a Mexican restaurant called Ole Cantina, was not challenged by PWB counsel. By December 1989, Pacifico was listed with the B.C. Liquor Distribution branch and in August 1990, a registration protecting the mark was issued.

    “The delay of almost 25 years before attempting to invalidate the registration weighs heavily against a finding of confusion,” Martineau said of PWB’s action.

October 27, 2015

QotD: The new censors

Filed under: Europe, Law, Liberty, Quotations, Religion, USA — Tags: , , — Nicholas @ 01:00

Governments began to treat those threatened for their opinions almost as harshly as those attacking them. Dutch legal authorities tried repeatedly, if unsuccessfully, to prosecute Mr. Wilders for “inciting hatred” with his film. He was briefly prohibited from entering Britain. In 2006, Tony Blair’s government passed the Racial and Religious Hatred Act — a kind of “blasphemy lite” law — ostensibly designed to protect all religions against threatening expression but generally understood as intended to limit hostile criticism of Islam. Both the U.S. and the European Union have entered into a dialogue in recent years with the 56 states of the Organization of the Islamic Conference, which is seeking an international law prohibiting blasphemy. In 2011, Secretary of State Hillary Clinton told the OIC that, while the First Amendment prevented the U.S. from prohibiting speech, the administration might still “use some old-fashioned techniques of peer pressure and shaming so that people don’t feel they have the support to do what we abhor.”

Admittedly, it is difficult to draw a clear line between criticism of an Islamic belief and an attack on Muslims who believe it. If you denounce a belief as absurd, you are implicitly criticizing the believers as credulous fools. Christians have to endure explicit denunciations of their faith all the time from such writers as Richard Dawkins and Sam Harris. And so they should. If you can’t stand the heat, don’t listen to hellfire sermons from atheists.

Hearing criticisms of your own convictions and learning the beliefs of others are training for life in a multifaith society. Preventing open debate means that all believers, including atheists, remain in the prison of unconsidered opinion. The right to be offended, which is the other side of free speech, is therefore a genuine right. True belief and honest doubt are both impossible without it.

It isn’t just some Muslims who want the false comfort of censoring disagreeable opinions. Far from it. Gays, Christians, feminists, patriots, foreign despots, ethnic activists — or organizations claiming to speak for them — are among the many groups seeking relief from the criticism of others through the courts, the legislatures and the public square.

John O’Sullivan, “No Offense: The New Threats to Free Speech”, Wall Street Journal, 2014-10-31.

October 24, 2015

The (vicious) economic model of the music industry

Filed under: Business, Law, Media — Tags: , — Nicholas @ 02:00

A post by Kristine Kathryn Rusch from a few years ago, talking about the “standard” abuses musicians were subject to under 1990s-era studio contracts:

Those of us who exist on the periphery of the music industry have heard for years that new artists and even established ones can’t make money in the traditional music industry.

I didn’t understand that until I read Jacob Slichter’s So You Wanna Be A Rock ’N Roll Star several years ago. He wrote about a system in which a musician who signed a deal with a major record label could end up owing the label tens if not hundreds of thousands of dollars. He delineated it all out in a long book that showed just how the label ended up taking a naïve artist and putting him into debt.

Slichter said this was why so many rock bands disbanded — because the band itself was a legal entity and as a legal entity it was in hock to the studio. The only way the musicians could continue to perform and try to earn money from their music was to create a new legal entity and abandon the old one. Otherwise, they were working in a kind of indentured servitude.

Think this is just sour grapes from one musician who didn’t make it big? Look at a link that a reader from last week gave me. It’s from a magazine I’ve never heard of called Maximum Rock ’n’ Roll and was written by rock producer named Steve Albini. I’m not so sure how dodgy this website is that I’m sending you to — I don’t know if they violated Mr. Albini’s copyright by reproducing this piece. I’m going to trust that they didn’t, because y’all need to see these numbers.

For those of you who can’t be bothered to check the link, Albini lays out the line-by-line “costs” that the musicians agreed to when they signed their record deal. The musicians received a $250,000 advance. But by the time the album got released and the tour was completed, the advance was gone — and the musicians owed the record label $14,000.

You’re understanding me right. The “standard” contractually negotiated costs that the musicians agreed would come out of their pockets came to $264,000. The only way for the artists to recoup that loss was to sign a new deal with the label, often at lesser terms. If the label even wanted to sign them. (That part is courtesy of Slichter)

How much did the label earn — with the same costs deducted?

$710,000. In 1990s dollars.

Albini also lists how much each “player” made. He includes a producer ($90,000), a manager ($51,000), an agent, ($7500) and a lawyer ($12,000).

He writes, “The band is now ¼ of the way through its contract, has made the music industry more than 3 million dollars richer, but is in the hole $14,000 in royalties. The band members have each earned about 1/3 as much as they would working at a 7-11, but they got to ride in a tour bus for a month. The next album will be about the same, except that the record company will insist they spend more time and money on it. Since the previous one never ‘recouped,’ the band will have no leverage and will oblige.”

October 22, 2015

Eviction notice

Filed under: Humour, Law — Tags: — Nicholas @ 04:00

The earliest known eviction notice:

Dear Mr. Adam,

I am instructed by my client to serve the enclosed eviction order concerning the property you now occupy.

He feels that he is justified in this action in view of your recent behaviour, which constitutes a breach of the terms of your lease.

You will remember the Clause 4 in your lease permitted you full access to the garden on condition that you undertook ‘to dress it and keep it’, and that my client generously allowed you to take for your own use any of the fruits and flower which grow there. However, he specified quite plainly that you were not under any circumstances to touch the prize-winning fruit tree in the south-east corner. This clause has been broken quite blatantly by your wife, who has freely admitted taking fruit from this tree. Her excuse, that she thought it would be all right, is considered by my client to be inadequate.

I should also like to add that I personally resent your wife’s insinuation that I not only gave her permission to take the fruit, but actually encouraged her to do so.

Read the whole thing.

October 18, 2015

QotD: Peace and order in the Kaiser’s Germany

Filed under: Europe, History, Law, Quotations — Tags: , , — Nicholas @ 01:00

Private lawyers are not needed in Germany. If you want to buy or sell a house or field, the State makes out the conveyance. If you have been swindled, the State takes up the case for you. The State marries you, insures you, will even gamble with you for a trifle.

“You get yourself born,” says the German Government to the German citizen, “we do the rest. Indoors and out of doors, in sickness and in health, in pleasure and in work, we will tell you what to do, and we will see to it that you do it. Don’t you worry yourself about anything.”

And the German doesn’t. Where there is no policeman to be found, he wanders about till he comes to a police notice posted on a wall. This he reads; then he goes and does what it says.

I remember in one German town—I forget which; it is immaterial; the incident could have happened in any — noticing an open gate leading to a garden in which a concert was being given. There was nothing to prevent anyone who chose from walking through that gate, and thus gaining admittance to the concert without paying. In fact, of the two gates quarter of a mile apart it was the more convenient. Yet of the crowds that passed, not one attempted to enter by that gate. They plodded steadily on under a blazing sun to the other gate, at which a man stood to collect the entrance money. I have seen German youngsters stand longingly by the margin of a lonely sheet of ice. They could have skated on that ice for hours, and nobody have been the wiser. The crowd and the police were at the other end, more than half a mile away, and round the corner. Nothing stopped their going on but the knowledge that they ought not. Things such as these make one pause to seriously wonder whether the Teuton be a member of the sinful human family or not. Is it not possible that these placid, gentle folk may in reality be angels, come down to earth for the sake of a glass of beer, which, as they must know, can only in Germany be obtained worth the drinking?

In Germany the country roads are lined with fruit trees. There is no voice to stay man or boy from picking and eating the fruit, except conscience. In England such a state of things would cause public indignation. Children would die of cholera by the hundred. The medical profession would be worked off its legs trying to cope with the natural results of over-indulgence in sour apples and unripe walnuts. Public opinion would demand that these fruit trees should be fenced about, and thus rendered harmless. Fruit growers, to save themselves the expense of walls and palings, would not be allowed in this manner to spread sickness and death throughout the community.

But in Germany a boy will walk for miles down a lonely road, hedged with fruit trees, to buy a pennyworth of pears in the village at the other end. To pass these unprotected fruit trees, drooping under their burden of ripe fruit, strikes the Anglo-Saxon mind as a wicked waste of opportunity, a flouting of the blessed gifts of Providence.

I do not know if it be so, but from what I have observed of the German character I should not be surprised to hear that when a man in Germany is condemned to death he is given a piece of rope, and told to go and hang himself. It would save the State much trouble and expense, and I can see that German criminal taking that piece of rope home with him, reading up carefully the police instructions, and proceeding to carry them out in his own back kitchen.

Jerome K. Jerome, Three Men on the Bummel, 1914.

October 17, 2015

Ken White of Popehat.com Talks Blogging, Anonymous Speech

Filed under: Law, Liberty, Politics, USA — Tags: , , , — Nicholas @ 03:00

Published on 13 Oct 2015

Ken White, founder of the influential group blog Popehat, tells FIRE how he got interested in the First Amendment and discusses anonymous speech on the Internet.

White, who writes for Popehat on a variety of issues, including the First Amendment, criminal justice, and the legal system, said a college project at Stanford University “during … one of the upsurges of controversy on campus about speech codes and speech issues,” opened his eyes to the nuances of the First Amendment.

“I wound up doing my senior honors thesis in college with a law school professor on the subject of legal restrictions on hate speech,” White said. “I thought it was very much emblematic of a very American problem, and that is: How do we express our disapproval — our moral disapproval — for bad things like bigotry, while not restricting liberties?”

Popehat seems to be a space created to do exactly that. The forum has evolved into a blog the contributors describe as a “group complaint” about “whatever its authors want.”

That freedom hasn’t always come so easily for White, who blogged anonymously for more than five years due to concerns his honest blogging might harm his career. He still thinks anonymous speech provides both benefits and drawbacks.

“I think the right to anonymous speech is very central in the First Amendment and in American life,” said White. “Throughout American history, people have said unpopular things, incendiary things, politically dangerous things behind the shield of anonymity. A lot of bad things come with that. There’s some really terrible, immoral, anonymous behavior on the Internet.”

White said there’s also a risk to writing anonymously, and that even while he benefitted from posting behind the security of an online persona, he supports the rights of others to try and discover his true identity. Eventually, White said he gave up the pretext and started blogging under his own name.

For more from White, including why free speech “catchphrases” harm First Amendment discourse, watch the above video.

October 16, 2015

The rules of war, US edition

Filed under: Law, Media, Military, USA — Tags: , , , — Nicholas @ 03:00

Tom Kratman read through the latest edition of the US government’s Law of War Manual, so you (probably) won’t have to:

I thought I was free of one thousand plus page books of the driest prose imaginable when I finished law school. Sadly, no such luck; the Department of Defense released, back in mid-June, its Law of War Manual, which is eleven hundred and seventy-six pages of painfully sere verbiage. Go ahead and divide the number of pages by the number of days since about 15 June, 2015. Yeah, that dry.

But, dry or not, it’s not that bad. Nothing that induces the legal LibLePRs (Liberals, Leftists, Progressives, and Reds) of ICOTESCAS (the International Community Of The Ever So Caring And Sensitive) to denounce it as something that “reads like it was written by Hitler’s Ministry of War,” could be all that bad.


The left’s grasp of law of war is tenuous at best, often mistaken and frequently fraudulent. For example, one of their usual charges, also much heard during the campaign in Iraq and especially at Fallujah, was that incendiary weapons are banned, per the Protocol on Prohibitions or Restrictions on the Use of Incendiary Weapons (Protocol III). The fraud there is that incendiary weapons are not banned there or anywhere. Their use under some circumstances is restricted or banned, but the weapons themselves, and their use for other purposes or other circumstances is perfectly legal.

That’s just one example of the fraud the left has perpetrated with regard to the manual. There are numerous others, too numerous to list here. I will limit my comment, therefore, to the observation that attacking a legitimate military target in proximity to a civilian or civilians is not quite the same thing as carte blanche to attacks civilians, qua civilians, generally. ICOTESCAS seems to harbor some confusion about this or to pretend to confusion to cover their fraud.

One aspect, in particular, that has the left up in arms about the manual is in its treatment of journalists. I suppose in their ideal world, camera teams from Al Jazeera should be able to do reconnaissance for groups of guerillas and terrorists, scot free. Too, one suspects, in the ideal lefty world, the presence of a journalist, even if he happens to be carrying ammunition for the other side, should protect all combatants around the “journalist,” lest the journalist’s expensive coif be mussed.

Sadly, for that set of values and outlooks, in the real world, once the soldiers realize that some “journalists” are helping the enemy, those journalists are going to be killed as quickly and conveniently as possible, as they should be. Aim true, boys, aim true.

The rules, as outlined in the manual, for journalists are actually pretty reasonable. To paraphrase:

  1. If you are a journalist and among the enemy, your presence will not protect them. Their presence will endanger you and the closer you are to them the more you will be in danger. We will neither aim expressly for you if we know where and who you are, nor avoid targeting places you might be, if we don’t know who and where you are, nor avoid targeting places where you are, if we know or suspect the enemy is there, too. You knew it was a risk when you undertook the profession.
  2. If you take part in hostilities, to include by providing reconnaissance or by spying, you will have lost your immunities as a civilian, but not gained the privilege of a combatant. We can kill you.
  3. If you act as a spy and we catch you, we can try you as a spy, give you a judge and jury who may not much care for you or your profession, then stand you against a wall and shoot you.
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