September 30, 2009

Sourcing The Apologetics

You would think that after all this time on the Internets, I wouldn’t succumb to the temptation to engage Christian apologetics. But sometimes I can’t help myself. And so I found myself stumbling across a guy who claims that there are plentiful contemporaneous, extrabiblical and non-Christian documentations justifying the existence of Jesus and the reports of his resurrection. Since this was news to me, I asked for references to his sources.

I was a little surprised that he identified them. To his credit, the apologist has set out his sources. In so doing, he allows someone else to go back and check the work, which is what I’ve done here.

My method in response was, by using simple Google searches, to determine first what claim is made by a particular passage and then to determine when and by whom it was written. You’ll all be very deeply surprised to discover that I find the cited evidence wanting.  Because this is all rather detailed work, I've put the rest after the jump; those of you who do not want the blow-by-blow analysis can skip over this and get the summary:  The earliest work cited was at least forty years after the crucifixion would have taken place, the bulk of it was written centuries later, and the best you'll get out of a lot of really bad scholarship it is that two generations after the events in question, some people said that there was a guy named Jesus.  But, if you want to read the details, I've got them for you after the jump.

Glenn Beck Spews A Densely-Packed Set Of Hysterical Lies

Why has America fallen into such desperate and horrible straits?  Oh, yeah, that's right, it's the atheists' fault.  Or, as Doug Mataconis puts it, "Yea, it has nothing to do with all those religious people who’ve, you know, actually been in charge of the country all these years." But a snappy response is not enough. Beck deserves a thorough takedown for this:

And I'm the guy who's going to give it to him. Glenn Beck, you are a lying, hysterical, fearmongering, pandering liar.  Who lies in order to gain ratings and who lies in order to whip people into a needless and destructive political frenzy and who just plain lies.

1.  "In God We Trust" appears on all the money, you lying sack of shit.  I defy you -- I challenge you to swear to forfeit on that immortal soul that you believe in -- to produce a single piece of U.S. tender in circulation that does not contain, somewhere on it, the phrase "In God We Trust."

2.  The Decalogue is allowed in courthouses.  Sometimes -- when it's part of an artistic display about the law and history.  We are, on our public buildings, allowed to acknowledge the role of the Ten Commandments as part of our cultural and legal history.  When the Decalogue is offered for religious indoctrination, however, that violates something inherently American, specifically, the Establishment Clause of the Constitution.  You should read it sometime.

3. You can pray in school.  You just can't force someone else to pray in school along with you.  Big difference.  You also can't pray in a manner that disrupts normal class activity.  But yes, you can pray in school.

4.  "Can't sing Christmas carols"?  Huh?  What court, what political institution, what police officer, what legislation, what rule, what anything stops you from singing a Christmas Carol where and when you want to?  You're just a crazed, frothing LIAR, Glenn Beck.

5.  Religious "nones" on the rise, meaning more Americans are not identifying with any particular religion -- even becoming outright atheists?  (Note that responding "none" to a demographic survey about religion does not mean one is identifying as an atheist.)  Aren't these Americans who have the Constitutional* right to be atheists if they want?  Why, then, do you object to Americans using their freedom, Glenn Beck?  What is it about liberty that offends you so very much?

6.  To suggest that atheists have a "void" in their lives is condescending in the extreme.  Glenn Beck, it's damn good odds that you do not worship Quezacoatl.  With what do you fill the void left by the absence of worship of the winged moon serpent? You don't feel a void in your life caused by your rejection of the divinity of Osiris.  You and I are exactly alike in that respect -- my list of mythological deities who I do not worship just has one additional name on it than yours.  Trust me, there's no void.  The real question is, with what does Glenn Beck fill the gigantic, gaping void in his ass?  The answer is, "his head, and it's high time he pulled it out."

7. To further suggest that atheists fill the "void" in their lives with "power, career, money, celebrities, politics, government" is even more ridiculous.   I'll grant you that I'm an atheist who is interested in politics -- but most atheists I know aren't.  Almost no atheist I've ever met is is in the least bit concerned about celebrity gossip, by the way -- everyone I've ever met who is deeply interested in celebrity gossip has also been, or at least claimed to be, religious.  "Put your faith in government, not God" is a message no atheist is preaching.  Why?  Atheists who are also politically liberal tend to support the current Administration -- because they are liberal, not because they are atheists.  Atheists who are politically conservative (or, much more likely these days since conservatism has become so identified with religiosity, libertarian) tend to oppose the current Administration -- because they are not liberal, again not because of their religion.  Almost like religious belief and politics have no logical link to one another.  Hmm, makes you think, doesn't it?

8.  "Why do you think we are as powerful as we are, or as we have been?"  Several answers here, Glenn, which need to be examined together.  Exhibit A:  Geography.  It's very difficult to invade the United States because to do so, you'd have to either have a military foothold in Canada or Mexico, or do an amphibious landing on one of two heavily-urbanized coasts.  Exhibit B:  Natural resources.  Our borders contain fertile farmlands, ample mineral resources, petroleum, and at one time, vast stretches of timber.  (If you want to give Jehovah credit for that, fine, but you should also note that He also gave those blessings to places like sub-Saharan Africa, China and Russia which do not enjoy the same levels of power or prosperity we do.)  Exhibit C:  A government founded on Enlightenment principles of republican democracy and individual rights, coupled with a strong political commitment to those ideals throughout our history, creating a sociological environment in which individual prosperity flourishes and collective prosperity flourishes as a result.  Exhibit D:  We won both world wars of the twentieth century -- in part because we weren't invaded through a combination of smart diplomacy, a strong Navy, and the benefits of our geographic isolation from belligerent nations -- and therefore unlike every other nation in the world, did not have our industrial plant and basic infrastructure wiped out by enemy action.  Jehovah, even if He exists, has little to do with any of this -- the ebb and flow of history and the accidents of geography do.

9.  When he asks, "What did we do different than other countries?" Beck cannot be seriously suggesting that other nations throughout history have been irreligious.  European nations fought 150 years of war with one another over religion.  He can't seriously be suggesting that places like Iran are irreligious.  (Oh, right, they're worshiping the wrong God.  Er, that is, they're worshiping the same God but they call Him "Allah" instead of "Jehovah" so that's where they went wrong; they ought to use English because if it was good enough for Jesus, English is good enough for them Iranians too.) 

10.  And that reference to the "Creator" in the Declaration of Independence -- who, exactly would that be?  It's not like Jefferson didn't know about the Christian diety when he wrote it.  T.J. could just as easily have written "All men are endowed by God with certain inalienable rights" but he used the phrase "their Creator" instead.  But even if we were to concede the non-obvious contention that Jefferson was referring to Jehovah, this clause still falls far short of Beck's characterization that it "recognizes the authority of God."  At best, it recognizes that a "Creator" of some sort exists.

11.  Nor does the failure of other countries to adopt some version of this language mean that they necessarily believe that human rights are dispensed by the government.  But they -- like the United States -- recognize that human rights have to be handled and adjudicated by the government, by the courts.  Human rights do not exist in an anarchy.

12.  "The Battle Hymn of the Republic" is, and always was, a song explicitly intended to meld elements of military glory and religious imagery.  Which you can enjoy if you want.  I'll concede that the melody and the meter are well-crafted.  But it's not the national anthem and I'd resist efforts to make it the national anthem.  Question: since the song refers explicitly to Christ and a variety of other New Testament images (like Lilies of the Valley and the millennial apocalypse) does that mean that Jewish people can't enjoy it, too? Perhaps just as important -- do you think atheists were the ones who corrupted this song in this manner? What proof do you have to back that up? Because my money is going to be on the side of the betting table that says the teachers and school officials responsible for that creepy musical interlude were Christians.

Now, the kids singing and chanting about Obama is really creepy, and whoever chose to pirate the sycophantic Obama-worship on traditional American songs thus compounded upon the inherent creepiness of children singing songs to praise to political leaders.  Nor will I defend it or the equally delusional school officials who thought it was a good idea to instruct schoolchildren to do this.  But what that has to do with why atheists are evil, though, I haven't a clue.

If I were in Congress, would I try to take "In God We Trust" off the money?  Yep.  If I were on the Supreme Court, would I vote against public displays of the Decalogue in almost all cases.  Probably (I can't be certain unless I had been briefed on a case).  I say that because a governmental display of religious iconography is inherently the government promoting religion in favor of non-religion, and from my perspective that violates the Establishment Clause.  But to get my way, I'd have to convince other people that I'm right about those ideas -- through the legal or political processes.  That is the nature of the system.  That system of laws is the distilled essence of America.  And it didn't come from God -- it came from a collection of lawyers, steeped in the radical philosophy of the eighteenth-century Enlightenment, who rendered very good service indeed to their new nation when they implementing it.

You have a Constitutional* right to vomit all of this nonsense, Glenn Beck.  And I have the Constitutional right to call it what it is: five solid minutes of hateful, fearmongering, bigoted lies.

* Some would even say "God-given" although I say God has nothing to do with the Constitution -- and I have the text of the Constitution itself to support me in that contention.

September 29, 2009

Today's Word Is "Treason" (UPDATED)

The hyperbole needs to end. Right f--ing now.  Conservatives need to condemn birthers. They need to cast out the nutjobs that are poisoning serious debate about serious issues. They need to dump WorldNetDaily. And now they need to dump NewsMax. Why?

NewsMax has now crossed the line into inciting treason. Specifically in the form of a military coup. Read this and I defy you to tell me, credibly, how the author would condemn what he's writing about. He clearly looks forward to the day that a "civilized" and "bloodless" coup puts the military in charge of America's political institutions and President Obama is reduced to a figurehead.

I'm very sorry you don't like the outcome of the election, John Perry. But if you don't like what President Obama is doing with his power, remember the advantages of limited government which conservatives so enthusiastically turned their backs on for eight years, and then think up a meaningful alterantive policy platform to what the Democrats are offering.  But don't have a nocturnal emission about the Joint Chiefs of Staff staging a coup and de-fanging the constitutionally-elected leader of the Republic and if you do, have the good manners to clean up after yourself in private.

The United States of America has survived politicians making radical changes to the government in the past.  We survived Andrew Jackson.  We survived Abraham Lincoln.  We survived Teddy Roosevelt.  We survived Woodrow Wilson.  We survived Franklin Roosevelt.  In living memory, we survived Richard Nixon and Ronald Reagan and Bill Clinton and George W. Bush, each of whom in their own ways severely tested the resilience of the body politic.  We survived the Vietnam War.  We've survived the invasion of Iraq.  We will survive Barack Obama.  We will be poorer for it, and probably not any healthier.  We will wind up with an inconclusive resolution to combat operations in Afghanistan and Iraq.  But we will be an intact democracy with thriving governmental institutions.

We will, that is, unless you have your way with your fever dream of a military coup.  In which case the Coup Conspiracy of 1934 will have realized itself three generations later.

I have a hard time believing that serious military leaders would seriously contemplate what this asshat is writing about.  Serious military leaders are smart men and women, who understand very well that there are vicissitudes in politics and we are going through a cycle that will eventually turn back in the other direction.  While they may differ from the Administration on any of a number of political issues, no officer from any branch of the service I have ever met has failed to grasp that the military is the servant of the Republic and not its master -- and not a single one of them has ever left me with the impression that they desire that role to change.

Well, I have had friends who have cracked jokes, but it was clearly-understood that they were joking.  But this clown isn't joking.  He thinks there is some kind of a constitutional crisis going on.  There isn't and claiming otherwise while invoking the power of the military to depose the democratically-elected government (however incompetent and corrupt it might be) is the summit of political irresponsibility.

UPDATE: After hit Perry's seditious screed hit the top ranking on memeorandum, making it the most-linked-to-recent posting on the whole Internet, Newsmax took the story down from its site completely. No probalo -- nothing that is ever posted on the Internet ever really goes away.

Nero's Rotating Restaurant

Seriously -- the Emperor Nero had a revolving dining room with retractable panels in the ceiling, so his guests could enjoy the complete cycle of a day while having dinner with their imperator.  Well, for a few months anyway, before things got all stabby.  I'm sure that Romans of the first century thought it was as gauche as moderns think of the same thing today.  The Romans were generally not ones to do things by half measures and this sounds no different.  As tacky and extravagant as the revolving dining room must have been, for a little while, it would have been the hottest ticket in town.  And as importantly, it shows that the Romans not only had the know-how but the wealth to create such a thing.

An Ant's-Eye View Of The Legal System

Too frequently, I view the Court system from the inside. I'm fortunate to have the benefit of a world-class education, a quick wit and a mind that can grasp both details and the big picture, training in public speaking and advocacy, strong administrative support, and the good sense to use these things to build a good reputation around the courthouse. But not everyone who has to deal with the legal system has those same advantages as me.

Today I got to take a couple of hours to view the system from something approximating a less sophisticated user's perspective.

An employee at the firm needed to get a restraining order against a creep who's bothering her. I'll leave the sordid details out; suffice to say that she needs to get a TRO on a creep.

While I know there are lawyers who specialize in this sort of thing, it was pretty new to me and that put me at something closer to a layperson's perspective. I make that claim bearing in mind that I was not personally involved in the dispute and remembering that I am still a lawyer, one who has gone through training to serve as a pro tem judge and to hear these kinds of petitions as a bench officer. So I'm still a few steps above your basic lay user who may or may not have even completed high school.

Now, our employee has something of an insider's perspective on the system, too -- because of her work with us, she has professional contacts at the Sheriff's department and because we take care of our own, she has free lawyers to help her out. But the fact of the matter is, I've not really had to get restraining orders in this context before. I thought I had prepared the right paperwork for her but it turns out there were several more forms than I had thought.

The forms were, at least from my perspective, reasonably easy to fill out. But it was not obvious what parts of the forms were for us to fill out and what parts were for the clerk to fill out. For instance, we could not know in advance when the follow-up hearing will be held. Nor could we really tell what amount of notice to the bad guy the court would require. Then there was the issue of the fee waiver -- I had our employee fill out the application pro per, so she would be eligible for the fee waiver, but the basis for the waiver was the threat of violence. We pay her more money than the typical threshold for an economy-based waiver. So we didn't put in for the fee waiver on that basis, but it turns out we should have anyway because without the form, even the fee waiver based on the bad guy's threat of violence can't go through. And there's nowhere on the form to request a waiver on those grounds, even though they are perfectly valid grounds for the waiver.

I had spent all morning doing evictions, and basically all afternoon with my employee helping her out with the paperwork and the courts (and providing moral support, which may not be an inconsiderable contribution) to move her through the process. We probably spent an hour and a half all told filling out the paperwork until it got to the point the clerk would accept it. Then there was more paperwork to do afterwards, which also took a couple of rounds to get right. I'm smart, my employee is smart (if somewhat flustered by her situation) and we didn't get it done right the first time. If both she and I hadn't been such well-known figures around the courthouse, we might not have gotten so many opportunities to get the paperwork right at all.

The lesson here is that when people who have graduate-school educations set out to design forms that are easy to fill out by people with high-school educations, and which also satisfy the requirements of laws written by specialists in legislation, the result is something that only people who have graduate-school educations think is easy to do.

In the allegedly less-busy afternoon, we found the courthouse full of people, of all races, ages, and degrees of socialization. Some of them seemed to have no means of communicating with each other aside from shouting profanity. Others insisted on slouching about in ghetto dress, as if to give the impression that they were criminals. Still others, attempting to seek to give the opposite impression, wore what must have been their nicest clothing, but unfortunately, it was the sort of clothing more suitable for a nightclub -- cocktail dresses or purple zoot suits -- than for a professional environment. Most of them milled about uncertainly, having apparent difficulty figuring out which floor they were supposed to go to. We were surrounded by a Babel of different languages -- mostly English and Spanish but I heard at least three couples speaking in Russian, at least two in what I presume was Mandarin and at least one in one of the Indian tongues, either Urdu or Hindi. To call the environment "chaotic" would be an understatement. It felt a little bit like being in a Las Vegas casino or a shopping mall during the holiday season. And although I know the building is actually crawling with police, the number of visible sheriffs in the hallways and other public areas of the building was actually quite low.

Finding a flat space to do the paperwork was a challenge. The courthouse has several benches in the hallways, of the rounded-top wire-mesh variety, so it is impossible to write on the bench tops. There are some counters, a little bit higher than one can use with precise comfort. But the only place we could find with anything like a desk or a table to sit down at and fill out the forms was in the cafeteria, which was several long, Stanley-Kubrick-movie-set-like hallways away from the clerk's filing window.

Even as it was, we waited around a crowded courtroom hearing traffic trials for another hour and a half after getting the papers in before her case was called. At that point, the TRO was granted and a hearing date set, and we had to listen to a lecture about how high the burden of proof was and how reluctant the court would be to grant the ultimate anti-harassment injunction.

The judge hearing the case explained the burden of proof by describing the burdens in the O.J. Simpson cases -- preponderance of evidence in the civil case, beyond a reasonable doubt in the criminal case; clear and convincing is somewhere in between. Now, every word she said was correct, and she accurately recited the law and in a way that, from the judge's perspective, was calculated to inform the party before her of what standard she would be held to at the next hearing.

But for my employee, the O.J. Simpson case is a stale piece of tawdry celebrity misbehavior left over from the mid-1990's when she was in grade school. Add to that the fact that concepts like "preponderance of the evidence" and "beyond a reasonable doubt" are (or at least, have been proven to my satisfaction to be) simply too abstract for even MBA students of significantly above-average intelligence to apply in unmoderated simulations, and the result could easily have been a functionally incomprehensible set of instructions delivered in a tone that sounded like, "What you're asking for almost never happens." That's not what she actually said, but it's what you would have heard if you had difficulty understanding the words that were actually used.

Fortunately, I noticed that other harassment trials were about to be held. I made my employee stay with me in the courtroom after her case was called so that we could see how they were actually done. In the first case, the plaintiff stated what had happened, described the defendant threatening her with violence, and brought a friend to corroborate her testimony. The injunction was granted. In the second case, the plaintiff spent all her time talking about what a creep the defendant's brother was, and how she didn't like the defendant staring at her developmentally-disabled adult son for three to four minutes at a time as he did his chores in the front yard. Admittedly, she was describing rude behavior, but it was clear that the judge didn't think that staring, by itself, constituted harassment worth abrogating the guy's Constitutional rights.

Then we finished the last round of paperwork with the court clerk, and were given still more paperwork to give to the Sheriff to serve on the defendant. Here, my employee was actually at an advantage to me; she was friends with the clerk at the Sheriff's desk and got a "rush" order stamped on her injunction.

By the time we got out of the courthouse, we had spent more than four hours with multiple go-rounds on the filings, waiting to be heard, and being lectured in a manner incomprehensible to a layperson. The clerks, the judge, the sheriff's staff, and everyone else we dealt with were professional if not outright freindly to us. Still, we both felt our patience coming to a low ebb by the end of the day despite the fact that we were actually being given special and actually better treatment than the typical customer of the judicial system.

From here, it doesn't take too much for me to think about what an unsophisticated person, without the advantages of education and sophistication, without the good reputation and personal contacts we enjoyed, would feel in the midst of all of this. Think something on the order of "lost and overwhelmed." For someone who was already suspicious of "the system," somoene who had a personal stake in the proceedings taking place in that building that day, or very particularly someone who had been accused of doing something wrong and who had to answer for themselves in that environment, the word "intimidating" comes readily to mind.

Bear in mind that this is a modern building, less than ten years old, one of the "nice" courthouses, staffed with people who were being professional and as helpful as they could possibly be allowed to be, and bench officers who were earnestly trying to explain to litigants what was happening around them. Conscious effort had been made to make this as user-friendly a place as possible, yet this was the result.

Eventually, we did get what we came there for. But it took all day in a crowded, uncomfortable courthouse, filling out and repeatedly revising multiple sets of confusing papers, getting lectured, and getting bounced around from one place to another. And this was VIP treatment.

September 28, 2009

Justice Isn't Just About Guilt

For some reason, the arrest and attempted extradition of Roman Polanski seems to be capturing everyone's attention.  I guess when you're rich and famous, your doings are important to everyone.  If Roman Polanski were not rich and famous, we wouldn't be hearing about any of this.

But he is rich and famous and we are hearing about it.  So here's the story.  In 1977, Roman Polanski was 43 years old, a dual citizen of Poland and France, and reaching the high point of his career.  He had already directed Rosemary's Baby (which he also co-wrote) and Chinatown.  Then, he met thirteen-year old girl (whose name can be found easily) at Jack Nicholson's house.  He gave the girl champagne and a Quaalude, told her he would take first topless and then nude photographs of her for Vogue magazine, got her in the Jacuzzi, and then raped her.  Subsequently, he was arrested and spent 42 days in jail.  He was then indicted of rape of a child, and subsequently reached a plea bargain in which the rape and sodomy charges would be dismissed and he pled guilty to the charge of unlawful sex with a minor.  But before sentencing, he fled the country and wound up in France, which has difficult laws regarding extradition when the defendant is a French citizen.

Polanski has always maintained that the prosecutor and the judge -- both of whom are now dead -- had colluded in an illegal way prior to the plea bargain.  I've had some difficulty digging out the details about how exactly they were supposed to have done that, but the new judge assigned to the case has indicated that he thinks there is substantial evidence of some kind of illegal collusion between bench and bar.  The hint has always been that if Polanski volutnarily returned and submitted to the justice system, he would have a chance to air out his procedural defense and maybe get the conviction dismissed.  His victim has also said she has moved on from the crime and would prefer to see the charges against him dropped.

But instead, Polanski continued his career abroad, making movies of mostly middling quality and winning an an Academy Award for The Pianist, which was accepted in absentia by Harrison Ford, who had starred in an earlier Polanski-in-Exile movie, Frantic.  And over the weekend, he went to Zurich to accept an award -- but Switzerland has different extradition laws than France, and apparently someone in the U.S. Attorney's office was paying attention sufficiently in advance to do something about it.  Polanski was arrested by Swiss authorities, who are preparing to hold a hearing under Swiss law about whether Polanski should be extradited to the U.S. or not.

There are two reactions to the story.  The first is to accuse U.S. and Swiss authorities of a "philistine collusion," objecting that his arrest was contrary to Swiss law in some manner.  The second is to recite the parade of horrible things Polanski did to his victim more than thirty years ago and remind everyone that he pled guilty.

Neither of which really reach the point.  What people ought to want is justice.  Justice is more than "the side I like wins," whether that side is the famous and glamorous filmmaker, or whether that side is the prosecution.  Justice is what happens when a morally good law is applied fairly and impartially to facts.  That means that the law must be both substantively good and procedurally fair.  If those conditions are not met, a civilized and law-abiding society may not legitimately deprive one of its citizens of his liberty.

There is little doubt that Polanski raped that thirteen-year-old girl.  There is no doubt that the law, in order to be moral, should protect thirteen-year-old girls from predatory and creepy 43-year-olds.  The substance of the law is impeccable here.  People who try to claim that Polanski is an honorable man, that he has committed no crime since that bad time in the 1970's, that he has made beautiful films and society should not be deprived of that art, badly miss the point.  That he is a talented artist is irreelvant.  He did a terrible thing and he should have to answer for it.  Instead, he fled from justice.  That is not the conduct of an honorable man -- it is the conduct of a guilty man self-interestedly avoiding punishment.

The question is the procedure and we should take seriously claims that bad criminal procedure produces bad substantive results. 

It is not enough that the defendant be guilty for justice to be done.  The hands meting out the punishment must be clean or else we cannot be confident that we are not punishing innocent people and collectively guilty of crimes ourselves. 

Some people might be satisfied with a guilty plea alone, but if it is true that the judge assigned to hear the case colluded with the prosecutor in any significant way, that raises a serious concern in my mind.  People confess to crimes they did not commit.  Why?  Some do it because they were tortured.  Some do it because they get bad legal advice.  Some do it because they think it will protect people they love.  Some do it because they lose hope of proving their innocence.

Look -- Polanski is scum for raping a child.  But if we overlook corruption on the part of governmental officials because we don't like the victim, that weakens the entire system.  The next time someone is accused of a heinous crime, that guy might actually be innocent.  If we've overlooked corruption between the D.A. and the judge for Roman Polanski because we know Polanski is guilty, then we're requiring the innocent person to make his case before that same corrupt system.  It's not fair and it results in innocent people being punished. We have to take things like this seriously because keeping the system beyond reproach is the only proof that we take guilt and innocence seriously.

Both substance and procedure must be in order before justice can be done.  You can't have one without the other.  Sorry, Polanski-haters.  Yes, he did a horrible thing, one that society ought not to forgive or overlook.  But our justice system must be able to withstand a searching analysis before it punishes even human slime like this guy.  Otherwise, it is not a justice system at all, but a way to deprive unpopular people of their freedom.  You might be unpopular yourself one day.  If you were unpopular and accused of a crime, at minimum, you'd want to have a fair and impartial judge handling your case -- not one who was in cahoots with the prosecution.

At the same time, Polanski's defenders must bear in mind that even if the charges are thrown out, this does not mean Polanski is innocent. It is not an exoneration of his behavior. It doesn't mean Polanski didn't rape that girl, because he did. And if you're so sure he's innocent, ask yourself if you'd let your own naïve and attractive thirteen-year-old daughter go over to his house alone.

No, a dismissal of the charges does not say anything, one way or the other, about the defendant -- it would be an acknowledgement that the system, in this instance, fell short of the very high standards to which we rightly hold our criminal justice system. Did it in this case? We can't know until and unless Polanski is presented to the only judicial system in the world that can evaluate his claim. That court isn't in Switzerland and the charge that our system was corrupted is a serious one that needs resolving.

I say, bring Roman Polanski back to California and let him put on his case before an impartial judge. He will get a fair hearing, and a just result.

September 27, 2009

Ragu Bolognese

No one has to tell me that the classic ragu Bolognese incorporates chicken livers into its meat mixture.  I also know that traditionally, the beef is chunked and braised and then stewed in the sauce until medium pressure causes it to fall apart.  Well, I didn't have any chicken livers or streaks around, I had ground beef instead.  So here's how I did it.

1 lb. ground beef
12 roma tomatoes
4 oz. heavy whipping cream
1 carrot
2 onions
1 stalk celery
1 red pepper
1 cup red wine (I used a Nebbiolo that had been half drunk)
black pepper
garlic -- generous
bay leaf
parsley -- generous
heel of Parmesean cheese

Peel carrot.  Destem and deseed pepper.  In food processor, combine carrot, pepper, one onion, and celery stalk until liquefied.  Place vegetable mixture in the bottom of a Dutch oven over medium heat.  Then, liquefy the other onion and combine with beef in saute pan.  Stir until browned, add to vegetable mix.  Then, destem and pulverize the tomatoes.  Trim the heel from the cheese and cut into approx. 1" wafers.  Add all remaining ingredients to pot except for cream.  Simmer for 4-5 hours, until excess liquid is reduced.  About fifteen minutes before serving, fold in cream.

I know there aren't chicken livers, but there's plenty of umami to go around. There are countless variations available, of course; this sauce gets altered a lot.  The thing to remember is that this is a meat sauce with tomatoes -- not tomato sauce with ground beef added.  The meat is what it's all about, not the tomato.

September 26, 2009

Roman-Chinese Contact In The Classical Era

During that phase of history referred to as the Roman Revolution, the general and triumvir Marcus Licinius Crassus led an army to the east from Rome to fight the empire of Parthia (roughly modern Iran).  He got his ass kicked good at the Battle of Carrhae, which is today in the Kurdish areas of southeastern Turkey.  Over 10,000 Roman soldiers, including the general, were captured, and the emperor kept the legions' beloved standards.  The legend goes that Crassus' love of gold was so legendary at that point the Parthains had heard of his cupidity, so after receiving the body of the slain general, the king allegedly had molten gold poured down Crassus' throat for the entertainment of his court.

Another legend is that one of Crassus' captured legions eventually gained their freedom somehow -- they either defeated their captors at some point or were granted parole.  Having lost their eagle standards in the battle, they could not return home with honor and it would have been like the Partians to have relocated them to the eastern portions of their empire anyway.  (That way they couldn't ever go home again and honored Rome above the Parthian king.)  So they made their way elsewhere, and were never heard from in Rome again.  These guys would have been pretty tight with each other, so they would have tried to have acted as a group -- and as a group, the one thing they were good at was fighting.  Given such circumstances, hiring themselves out as mercenaries seems like a logical sort of decision for them -- and particularly if they were hired out to a warlord who would take them as far away from Parthia as possible.

Two intriguing possibilities exist for their fates.  First, at a place in western China called the Tarim Basin, a large number of mummies were found.  Examination of them -- some forensic, some genetic, and in the case of the best-preserved mummies, simply looking at them -- reveals that they had fair skin, cloth of European manufacture, red hair, and larger noses than either the Turkic or Han peoples indigenous to the area.  Modern DNA testing reveals that they were of European origin, and carbon dating of the tissue reveals that they died between 3,000 and 2,000 years ago -- in time to have either been members of Crassus' lost legion, or perhaps descendants of them.  They could also have been Germanic or Slavic peoples who counter-migrated into western China, though; so far the more precise origins of the mummies has not been determined.  Some testing suggests that they originated in areas like what are now Georgia and Armenia, but others have genetic roots that strongly suggest Celtic origins -- and Celtic origins of far western Europe, from places like what are now France and Belgium.

Second, and more intriguing, are reports from a Chinese general who describes encountering men who fought in a "fish-scale" formation.  This sounds a lot like the "tortoise" formation used by an advancing Roman legion in which one man bends over and holds his shield in front of him, and a man behind him stretches up and holds his shield, overlapping the first, at an angle, and the men behind him hold their shields directly over their heads.  You might remember having seen something like that in the opening battle scene of Gladiator.  A legion in this formation would move slowly, but would be invulnerable to most arrows and other missiles of the day, and so could move to the melee of a hand-to-hand battle at full strength.

So many reports survive that these blond-haired, blue and green eyed men fought well, but eventually succumbed to the better-armed and better-supplied army of the Han, and were captured again.  they settled in a place near the Gobi desert called Liqian, which allegedly translates to "Rome" in the language of the day. Today that area is known as the villiage of Zhěláizhài in Some residents of the area to this day have fair hair, lightly-colored eyes, big hooked noses, and retain a fondness for bullfighting, which traditionally is a European sort of thing to do.

This was discovered by an American scholar in the 1950's, and a lot of publicity has fallen on this otherwise-obscure and impoverished village in China because of it.  The genetic testing of the inhabitants, however, appears to be inconclusive.  Part of the problem is that as a border area, Zhěláizhài would have had not only Han Chinese people but also Turkic peoples like Kazars and Uighurs, and like damn near everywhere else in Eurasia, would have been invaded by the Mongols in the twelfth century.

So Crassus' legions are really lost to history, but there are intriguing suggestions that at least some of them wound up in China.  It wouldn't be the only Sino-Roman contact in history; there were stories of traders from China in the first century traveling far to their west and coming to a great western sea held by a vast and powerful empire which impressed the ambassadors as technologically advanced and that wished to trade with China but could not because of Parthian interference

Roman coins bearing Julius Caesar's image have been found in imperial tombs, and Romans had an active trade in silk as a luxury item, a trade good which for many centuries was made only in China.  But it doesn't seem many Romans made it out that far east and ever came back to tell the tale -- but Romans knew, at least, that China existed and they were able to gather some information about it.  Pliny the Elder gives secondhand reports about a land called "Serica" beyond a very high mountain range north of "Taprobane."  Taprobane is clearly India, although Pliny described it as an island.  Pliny's Serican peoples, however, were tall, blond-haired, and blue-eyed -- suggesting that they were Turkic rather than Han.  Other Roman historians, including Strabo and Pomponius Mela, also mention Serica, which means "The Land Where Silk Comes From."  Ptolemy the Geographer wrote in the second century of silk coming from a land in the far east populated by two nations, the "Sinae" and the "Serice."

One wonders what the Romans and the Chinese who might have visited to trade or explore would have thought of one another.  For their part, Romans would probably have not considered the presence of people even with distinctive physical traits of Han Chinese more than remarkable, since their empire was so cosmopolitan and had such a mixing of racial groups to begin with.  My guess is that since they looked a little different than other folks, they probably were able to have all the sex they wanted.  The Chinese might have been surprised to find an advanced civilization so far from home; certainly a Roman province would have looked very different than the Parthian areas they had passed through to get there.

It's all conjecture, of course, and the idea of tracing genetics after two thousand years of history to prove these ideas one way or another does not seem likely to yield conclusive results.  But I find the idea that a Roman legion somehow made it out to China and that its descendants are still there today intriguing and romantic.  At the least, it is a reminder that even two thousand years ago, the world was a much smaller place than most people imagined.

Split Apple

Miracles of genetics. Do you like red apples or green? This farmer doesn't have to choose.

But What If You're Wrong?

In a rather remarkable Q&A session from October of 2006, Richard Dawkins is asked what to a believer must have seemed like a rather poignant question:  "What if you're wrong?"

We have to contextualize, and then unpack, that question a little bit to really understand it, because it's ambiguously-phrased.  Dr. Dawkins was then at the height of publicity surrounding his release of The God Delusion, which became a best-seller and his speech at the college included a reading of a chapter of that book in which he advances the claim that there is no rational reason to believe in Jehovah.  Dawkins was speaking at a small liberal arts college in Lynchburg, Virginia. Which is where Jerry Falwell's Liberty University happens to be located, and a number of Liberty students crashed the lecture. The presumption was that the young woman who asked Dawkins this question was a Christian student at Liberty.

That being the case, it is fair to read into her question that she is asking not only "What if you're wrong that there is no such thing as the supernatural," but to glaze on top of that, "What if the teachings of Christianity are the truth?"

Dawkins' response was that the young lady asking the question was probably Christian because she had been raised in a Christian environment and accepted Christianity as normal.  Therefore, she probably felt very comfortable about discounting the claims made by other religions -- she likely had no trouble dismissing the teachings of Hinduism, for instance.  But had she been born in India, she would have been raised in a Hindu environment and accepted Hinduism as normal, and thus had little difficulty discounting the claims made by Christianity.

This was, in essence, a rephrasing of a pithy statement by usenet pioneer Stephen Roberts, who noted in an internet debate over a decade ago: "I contend that we are both atheists. I just believe in one fewer god than you do. When you understand why you dismiss all the other possible gods, you will understand why I dismiss yours." 

So the unpacked question is "What if I'm right?" and the unpacked response is, "You're not really scared of being wrong about all those other gods, so why should I be scared of yours?" or, phrased somewhat more confrontationally, "Don't try to scare me with a bogeyman."

But while Dawkins makes a strong and worthwhile point that "what if you're wrong" is simply a case of invoking fear to support a claim of "I'm right," this response nevertheless does not directly answer the student's question at face value, which may have left an unthoughtful person unsatisfied with Dawkins' response.

What if it turns out that not only is Dawkins wrong, but the Christians are right?  Indeed, let's take it a step further -- what if not only are the Christians right, but the millenial, evangelical Christians (as opposed to the Catholics, the Mormons, the milquetoast Lutherans, and so on) really are right?  What if the Rapture really happens tomorrow and the apocalypse took place and suddenly I was before Jehovah with Jesus seated at his right hand on Dies Irae, the Day of Judgment, with hellfire and the sword awaiting on one hand and eternal bliss with Jehovah on the other?  Faced with indisputable proof that my former atheism was incorrect, and the Christian world view not just validated but confronting me with dramatic, imminent, and dire potential consequences, what would I do then?

The face-value answer to the question is, I would ask to be judged based on how morally I had lived my life.  Jehovah being omniscient, He would also be able to discern my motives and know when I had been acting for good motives.  I would admit of my moral failings.  I would ask that my moral achievements be considered along with them.  I would ask Jehovah to consider both my motives and my actions.  I would hope that God would find that I had been more moral than immoral, on balance a good person.  And I would ask that the eternal reward or punishment to be given me be based on my deeds.

But of course, if the hellfire-and-brimstone Christians were right, and I was to be saved (or not) by the grace of God alone, or perhaps by faith in God alone (I always get those two confused), then my deeds would be insignificant whether they would be good or bad.  There really wouldn't be anything I could do about it, would there?  I'd be screwed.  I'd be in the hands of a power that judged me based on factors that were never in my control in the first place, and justice and morality would have nothing to do with my fate.  I'd have to plead for mercy and forgiveness while at the same time admitting that I didn't really deserve it.  Which is what Christians do now.  And I'd either be forgiven, or not, by fiat of Jehovah, a entity totally beyond my power to influence.  Which is the place Christians find themselves in as well -- and they seem to think that by reciting the Sinner's Prayer they can somehow influence that same entity who they claim is unifluencible.

So what if I'm wrong and the evangelicals are right?  Although the odds of that being the case are infinitesimally small and the intellectual ploy behind the question is a cheap scare tactic, it seems to me that if it does somehow work out that way, I'll be no better or worse off than anyone else.

September 25, 2009

Double Standard At Play

It has long been the case that police have been held to a different, and frequently more lenient, standard with respect to the administration of criminal justice.  Case in point:
Actually, I think that the public ridicule of being mocked on the six o'clock news (oh, and losing your job) is probably sufficient punishment in this case.

Geography Question

A river flows downhill from a mountain, a spring, or from a lake.  The beginning of a river is called its "headwater," and its ending is called its "mouth."  Along the way, it meets up with another river, flowing downhill from another source.  The two rivers combine at that point, called a "confluence," and thereafter the downflow is in a single river.

Sometimes, both contributing rivers end, and the resulting river is given a new name.  For instance, at Pittsburgh, Pennsylvania, the Monongahela River and the Allegheney River meet, and their confluence is the origin of the Ohio River.  Thus, Pittsburgh is the mouth of the Monongahela, the mouth of the Allegheney, and the headwater of the Ohio.

But sometimes, one river is called a "tributary" of another river. For instance, at Cairo, Illinois, the Ohio River meets the Mississipi River, and the river that flows downhill from the confluence at Cairo is called the Mississippi. Cairo is the mouth of the Ohio.  But it is merely another spot along the course of the Mississippi.  Go north-by-northwest about 140 miles from Cairo, Illinois to just north of St. Louis, Missouri, and you will find the spot where the Missouri River becomes a tributary of the Mississippi.  Some geographers refer to that portion of the Mississippi north of these confluences as the "upper Mississippi" and the rest of it as the "lower Mississippi" but that does not seem to be a universal appellation.
So why is it that the confluence of the Ohio and the Mississippi produces the Mississippi River, while the confluence of the Monongahela and the Allegehney produce the Ohio?  How does a geographer or a hydrologist distinguish a situation in which one river "takes over" a tributary from a situation in which two rivers unite to create a third?  Or is it just arbitrary?  Inquiring minds want to know.

You And What Army?

Well, I am shocked.  Truly shocked.  Appalled and surprised.  It turns out that Iran has a second uranium-enrichment facility at which it appears to be making weapons-grade plutonium.  This has earned the condemnation of the G-20 nations, including the personal condemnation of President Obama, who said today:

The size and configuration of this facility is inconsistent with a peaceful program. ... Iran is breaking rules that all nations must follow, endangering the global nonproliferation regime, denying its own people access to the opportunity they deserve, and threatening the stability and security of the region and the world.
In response, while addressing the United Nations, Iran's President Ahmadenijad has basically said, "We don't care if you don't like our nuclear program."

Because, really, what are we -- "we" being either the United States or the United Nations or some significant fraction thereof -- going to do about it?  Here are our options.  In theory, we can (pick one and only one):
  • Diplomatically condemn Iran for developing nuclear weapons.  "Naughty, naughty Iran!  Bad rogue nation!  Now please stop immediately!"
  • Expel Iran from the United Nations.
  • Stop selling things to Iran.
  • Stop buying Iranian oil.
  • Launch airstrikes to destroy Iran's nuclear enrichment facilities.
  • Launch airstrikes to destroy Iran's nuclear enrichment facilities, and then invade Iran.
As a realistic, practical matter, only the first option is actually achievable.  And Iran's President has apparently decided that he can somehow find the internal fortitude to endure the vicious scolding we have in store for him.

September 24, 2009


Dawkins is sold out. Well, maybe next time. And maybe I need to replace my tires or something.


You Can Have It When You Pry It From My Cold Dead Fingers

Because until then, I am going to continue to use toilet paper and I don't care what you have to say about it.

September 22, 2009

A Proud Day For Dodgers Fans

This portrait was hung in the National Gallery at the Smithsonian Institution today.

Tomma Lasorda is still the personification of the Los Angeles Dodgers, but he is also something of an ambassador for the whole sport of baseball.  His infectious enthusiasm for the sport, his wide-eyed joy at seeing players of all ages do well, and his personal charisma overcome any criticism of his perhaps-a-little-too-frequent profanity-laced tirades.  Fact is, however unprofessional it might have been, you didn't want Tommy mad at you. Even if you were on the other team.

What's particularly nice to note about him is that he began his career in baseball back when there was still a lot of racism in the game, and he was quick to point out that really good players are few and far between, and teams that want to win simply don't have the luxury of disregarding someone with talent and ability because of something so petty as the color of their skin.  He took that idea to heart early and wholly and has lived it ever since -- and is a living reminder of the bridge between old school and new school American culture.

Which, of course, is why his portrait belongs in the Smithsonian Institution, which isn't all about Gilbert Stuart's portrait of George Washington but instead is supposed to be a repository for all sorts of examples of what American culture is all about.  Baseball is a part of American culture and Tommy Lasorda is American baseball.

Quick, Close The Barn Door! The Horse Escaped!

It ought to be rather simple and obvious.  Don't use public money to fund political messages.  The White House is finally getting it and at least they're not trying to tap-dance around admitting that someone didn't screw up.  A little bit too late, but at least now the issue's been raised.

"Certainly This Was A Case Of Bad Judgment"

...So says the chief of police.  Which is kind of an understatement.

Dateline:  Lakeland, Florida.  Cops execute a search warrant, and bust in to a (suspected) drug-dealer's house to seize evidence.  While some of them search through the house, tag and bag evidence, help haul the heavy stuff out to the evidence van, and otherwise engage in what you'd normally think of as "police work," other officers are otherwise engaged.

Antonin Scalia Doesn't Believe In Governmental Neutrality About Religion

That is, Justice Scalia believes the government should promote religion as opposed to non-religion (emphasis added):

More Voices Call For Minimal Civility

It's heartening to see that I'm not alone in decrying the loss of civility in political discourse. On the right, I proffer exhibit "A," the following video featuring Joe Scarborough, pointing out Glenn Beck's contributions to the decline in our public discourse:

As Exhibit "B", I offer Joe Gibbs, the White House Press Secretary, taking to task progressives who condemn all criticism of Obama and his policies as racist:

September 21, 2009

A Romanian Gets Upset At Americans Telling Lies About Constitutional Rights

I know that an intellectual critique of Ray Comfort is kind of like gravity-testing lead weights in terms of intellectual challenge. The lead is going to fall, and Comfort is going to be demonstrably ignorant. But this lovely young Romanian lady is not only funny taking on this task -- she demonstrates a deeper and more correct understanding of U.S. Constitutional Law, and the state of religious freedoms in our nation, than does native-born Kirk Cameron.

I love how she says "bullshit."

Richard Dawkins For My Birthday

Hooray!  Richard Dawkins will be speaking at the Atheist Alliance International Convention in Burbank the weekend after next, and it looks like I'll be going!  At least one friend is interesting in going with and hey, it's right after my birthday so what could be a better treat to oneself than a world-class lecture?

Here is an excerpt from his most recent book, The Greatest Show On Earth, which I'll hope to get autographed by Dr. Dawkins:

Yes I'm Back

I hope everyone at least found something serious to consider -- maybe agree with, maybe not -- in last week's round of topics.  For the most part I stayed away from the blog but accomplished less personal writing than I'd originally intended.  Part of that was caused by heavy work, part of it by term papers in my class being due, and part of it was a lack of discipline on my part.  But, I'm back on my regular schedule now, for better or for worse.

I'm sure my Reader will be much relieved. 

And I come back and find all sorts of good new features in Blogger, most notably including jumps.  The page should load faster now, and it should be easier for you if you want to skip something that doesn't look interesting to you.  I, however, will continue to write exactly what I please -- and hope that you will take the time to jump to the full posts.

If there are technical problems with the jumps, please let me know.  I've not had any myself but your results may vary.

September 20, 2009

Experimenting With Coconut Oil

I like having a goatee. It gives my face a different look -- a look that I think is actually a little bit slimming for my face; unfortunately carrying around too many pounds produces cheeks that are rounded and puffy like a baby's. So over Labor Day weekend I let my beard grow out and only trimmed back around my cheeks, leaving the goatee and mustache in place.

Cocktail Hour: Aviation

1 oz. vodka, uninfused -- substitute gin if you prefer
3/4 oz. freshly-squeezed lemon juice
1/2 oz. Crème de Violette
1/2 tsp. (just a dash, really) Maraschino

Maraschino is not the famous sweet cherry used in ice cream treats. Rather, it is a low-proof liqueur distilled from Marasca cherries native to southwestern Croatia. I didn't have any maraschino liqueur, so I used a cherry syrup. Next time, if I don't have the real thing, I'll mix in one part Campari with two parts of the cherry syrup, because it was too sweet and it begs for a nibble of bitter.

Sand In Her Fingers

The video is of the champion of Ukraine's Got Talent. Some of her references are, I think, culture-specific to her nation. But chances are good that you've never seen anything quite like this:
The artist's name is Kseniya Simonova.

Federalism's Necessity

Proposed: "While federalism was a useful concept in the early development of the United States, as a nation and as a people, we have outgrown it. We would be better off with a standardized, uniform set of comprehensive laws for the entire country, with individual states left as conveniences of administrative organization only."

September 19, 2009

Final Frontier

Proposed: "The benefits of manned space travel outweigh the costs, even in a time of great financial uncertainty."

September 18, 2009

Wars Of The Future Might Be Fought For This

What do you think of this proposition: "From 2020 to 2080, the scarce resource that inspires the most war on Earth will be labor rather than either oil, food, land, or fresh water; thus, nations will tailor their policies and fall into conflict with one another, in order to attract immigrants."

September 17, 2009

A Liberal Questions Obama

Will Collier points out a very interesting set of thoughts from a very liberal observer of politics:

I Am James Madison

Which Founding Father are you?

Happy Constitution Day, everyone!

In Group - Out Group Morality

Submitted for your approval -- or disapproval: "Quentin Tarantino's new movie Inglorious Basterds features a squadron of mostly Jewish soldiers in World War II commiting a variety of what could only be called war atrocities on Nazis. This is okay, because the movie is both clearly a fantasy and the victims of the violence are Nazis."

September 16, 2009

A Quick Memoriam

I'm not doing heavy blogging this week, but I would be remiss to not note the passing of Mary Travers, of the popular folk band Peter, Paul and Mary. She was (still is) one of my mother's heroes and I know Mom will be saddened to learn of her death. I hope Mom will take some comfort from my taking the time to eulogize her here.

National Self-Interest

Proposed: "If India and Mexico complete their semi-governmental, semi-private industrialization and modernization programs currently underway, this will be a long-term net benefit to the United States of America."

September 15, 2009

America's Most Distrusted Minority

This sort of thing only works if you Readers actually make comments. Again, I'll throw out a topic for your discussion. I'm not going to participate in these discussions for a while. Nor should you assume that I agree with the propositions I throw out; they are thrown out to elicit comment and discussion. When I want you to have my opinion, I'll give it to you. In the meantime, I'm curious about your opinions:

Proposed: "Atheists in the United States can only gain social respectability if they form into organized groups that engage in philanthropy and public service."

September 14, 2009

Discuss The 9/12 Protest Amongst Yourselves

I'm going to drop the blog into low gear for a few days as I try to re-discipline myself to writing something that might actually be published and purchased one day. I apologize in advance to my Reader.

In the meantime, I'll offer a proposition for debate within the comments. Background: On September 12, 2009, a large number of people marched on the Capitol in Washington, and were addressed by prominent Republican leaders of Congress. The number of marchers was reported as anywhere from 50,000 to 2,000,000. Proposed for your consideration, then, is the following phrase (one which I do not necessarily agree with):

"It doesn't matter how many people there were at the 9/12 protest, because they failed to express any policy proposal more coherent than generalized distrust of the government."

Please discuss in the comments. I'll be back in a day or two.

Jaybird Wins The Entire Internet, or, How To Sell A Feature Movie About Charles Darwin

In an off-the-cuff sort of post complaining about how a biopic of Charles Darwin called "Creation" is having difficulty finding a distributor in the U.S., commenter Jaybird at League of Ordinary Gentlement demonstrates mastery of the art of film promotion. Hilarious.

September 11, 2009

What's Important Now

I offered the previous post because I found all the 9/11 rememberances popping up on my blog reader this morning morose and depressing, focusing on the violence of the attacks, the tragic loss of life, and the horror of that terrible day. I don't want to minimize or even forget those things. But what we can do about it now is either whip ourselves back into the state of panic and fear that gripped the nation that day while re-mourning our dead, or we can be smart about what to do with our futures.

What Should He Have Done?

This skit might seem offensive at first glance, but take a moment to think about it before you pronounce it so. Notice that there is never approval of what they know is about to happen:

Ultimately, this is a restatement of the Argument From Evil. Which is actually an ancient argument indeed, first and best articulated by Epicurus:

Is God willing to prevent evil, but not able?
Then he is not omnipotent.
Is he able, but not willing?
Then he is malevolent.
Is he both able and willing?
Then whence cometh evil?
Is he neither able nor willing?
Then why call him God?

Her Majesty's Government Issues An Overdue Apology

During World War II, the Allies were aided in a very substantial way because they could read encoded messages from Japanese and German military authorities sent via radio to units out in the field.

This was possible because of the contributions of a genius, a man of unique mental abilities, creativity, and vision named Alan Turing. In 1932, at the ripe age of twenty, Turing made the daring and brilliant suggestion that by properly structuring mechanical algorithms, a machine could perform complex math. Before this, a "computer" was a human being, a person skilled in making mathematical calculations accurately and (hopefully) quickly.

September 10, 2009

Joe Wilson Deserves Shame

A theme of this blog going back to its earliest days is my repeated and escalating sadness at the decline in the quality and timbre of political discourse in the United States. Congressman Joe Wilson, however, pushed the already-low floor down even further last night when he heckled the President of the United States giving a speech to Congress.

Look, I don't know if the health care reform bill will authorize payment to illegal aliens or not. I know, though, that respect for the office, if not the man, requires that the President be allowed to make a speech interrupted only by applause. If you disagree with what the President says, you withhold your applause -- your refusal to applaud will be noted. Calling out "You lie!" during a Presidential address is quite simply unacceptable, and I will add my voice to that chorus.

A Call To Adequacy

Good just plain isn't good enough anymore. This irritates me.

On more than one rating scale I've seen -- in things like employee performance evaluations, customer satisfaction surveys, and the like -- the rating scale goes something like this:

5 -- Extraordinary
4 -- Very Good
3 -- Good
2 -- Fair
1 -- Poor

I look at this and I think, "Shouldn't 'fair' be in the middle? 'Fair' is a neutral sort of evaluation, 'Good' is praise." But the neutral evaluation is below the middle of the range of available responses. Neutrality is not acceptable. Although a desire to improve oneself is commendable, within this mindset lies a seductive and pernicious species of mental rot.

September 9, 2009


No commentary necessary.

Some Trivia For Today

These eight men share an unusual honor, one not shared by the other thirty-five men who have served as President of the United States. What is it?
  • John Quincy Adams
  • James K. Polk
  • Abraham Lincoln
  • James Garfield
  • Grover Cleveland
  • Benjamin Harrison
  • William Howard Taft
  • Richard M. Nixon
Big props if you get this one right.

Declining To Attract Decline To State Voters (UPDATED)

The California Republican Party, acting through its convention of generally self-identified party activists, has decided that it will not permit "decline to state" voters to participate in its primaries. The effect of this will be to put more moderate Republicans at a disadvantage in pursuing office. This is a win for ideological purists and a loss for voters like me, who would prefer to see a Republican candidate be competitive in a marginal district rather than make a campaign pitch that alienates centrist voters.

Olbermann Loses Me

Sometimes, I like Keith Olbermann. He's got an engaging on-air personality and when he editorializes he can be passionate and persuasive. But not when he goes all-in on partisanship and busts out with an argument like "all opposition to President Obama is based in racism":

September 3, 2009

Holy Crap Will All You People Just Calm The F-- Down?

Ah, politics. Debate and disagreement. Which degenerates into shouting matches and name-calling. Which sometimes then degenerates into fistfights. Well, it's only fun until someone gets their finger bit off.

Look, I have my opinion about health care reform. (I'm moderately in favor of Wyden-Bennett.) You have yours. That's what politics is for. We disagree, we argue, we don't convince each other, then we vote. Then the winner gets his way and the loser gets to go to court.

That's how it's been since 1789 and there is nothing different about today's political disagreements than any of the other disagreements we've had for the past 230 years or so. Except for slavery, and let's not go there over this, okay?

I found it in my heart to live with the passage of California's Proposition 8. No one has actually voted on anything yet for health care reform. So grow the f--- up, people.

Seriously, have we acquired a national case of borderline personality disorder all of a sudden? Is it time to start spiking the public water supply with Ritalin?

While it may seem to some that it's the politically conservative opponents of the pending health care reform proposals who are acting like they were raised by wolves, note well that in this case it was a liberal supporter of health care reform who did the biting in this "incident."

An "incident" which is more than "regrettable," -- you're looking for words like "appalling" or "deplorable." To the author of that astonishingly bland evaluation of a man biting another man's finger off his hand, I suggest you publicy and loudly disown the frothing barbarian who did this, or be prepared to explain why you think this sort of thing ought to be considered part of legitimate political debate.

The point is, lunacy is not something that any party or ideology has a monopoly on. Maybe you're liberal and you think that conservatives are whackjobs for obsessing about birth certificates and bringing assault weapons to political rallies. Maybe you're conservative and don't want union thugs throwing wrenches through your plate-glass windows or having your finger bitten off. But either way, your side is guilty of this sort of thing, too, and there's no excuse for it on anyone's part.

Somehow, there is a surplus of crazy out there in the body politic, unlike anything I've ever seen so far in my nearly forty of citizenship in this nation. It's high time that all of America stopped and took many, many deep breaths before doing anything further. In through the nose for five seconds, hold for five seconds, out through the mouth for five seconds. Repeat until your adrenaline glands shift down from hyperdrive.


Yesterday, I wrote in celebratory tones that the human rights law in Canada that had been used by over-zealous prosecutors to suppress freedom of speech had been found unconstitutional by Canada's Supreme Court. This was inaccurate.

In fact, the decision was issued by the Canadian Human Rights Tribunal, which is a judicial body of national appellate jurisdiction. The appeals sent to the CHRT come directly from the Human Rights Commissions which have been the focus of criticism. The CHRT's decision is limited on its face to one dimension of the human rights law, although its reasoning would apply to other provisions with equal force, calling into question the whole tribunal system and the monetary punishments it can mete out to those convicted under it.

Most importantly, that same system has been found constitutional by other panels of the CHRT in the past, creating a conflict between this new decision and older ones. Apparently under Canada's legal procedures, this is good grounds for an appeal to the Federal Court of Canada, which is a trial court of national jurisdiction, and potentially from there to the Federal Court of Appeal and only from there could the decision proceed to the Supreme Court of Canada. An organizational chart of the Canadian judicial system, from the Canadian Department of Justice, appears to the left. The CHRT and Human Rights Commissions are classified as administrative tribunals, and organized at both the federal and provincial level.

Not A Potted Plant regrets the error.

September 2, 2009

Good News From Canada

The human rights hate speech law that has been used of late to investigate and punish people who say things that the commissars do not like has been found to violate that nation's Constitution. You'll recall a particular magazine publisher, Ezra Levant, was made to answer and potentially faced incarceration for reprinting the Mohammed cartoons. He earned this blog's Big Brass Ones Award for this exchange with his interrogator, in which he demonstrated, in the most forceful possible manner permissible by a society governed by laws, what freedom really is.

Damn It, I Can't Help Myself

The ongoing squabble between Sarah Palin and Levi Johnston is more than a little bit like the Britney Spears - Justin Timberlake divorce. You know that you're wasting your time by pursuing it. You know that it is utterly and totally irrelevant to anything that even remotely matters in your life -- even if you are a political junkie. But somehow, when Vanity Fair publishes its interview with Johnston, called "Me and Mrs. Palin," you can't help yourself any more than you can stop that impulsive upgrade to a super-sized order of fries, and you hate yourself afterwards for doing it. But you are somehow compelled to go look and see what's up.

And Vanity Fair rewards you by giving you exactly what you went there for, just like a condescending pornographer or drug pusher, and you take it even though you despise yourself for it. "Oh! You want this, don't you? Here you go, you gossipy bitches. Yeah, you know you want it. You need it, don't you, bitches? Come on, now, who's your daddy? Now fork over the dough and patronize our advertisers!"

Come on, you know Andrew Sullivan has a big old pup tent down in his shorts because of this.

The picture, by the way, appears to be the galley of what actually appears in the magazine; I've hotlinked to the magazine's website to generate the picture here. Presumptively, the image is copyrighted by Vanity Fair Magazine. It also will serve only to drive traffic to the magazine's website which attracts eyeballs to the magazine's website and will no doubt increase sales of the magazine itself, so Condé Nast attorneys -- please do take just a moment to think about the fact that I'm doing your client a favor by using the image here before you send me any cease and desist letters. Besides, it's fair use under 17 U.S.C. § 107 as commentary so if you sue me you'll lose and I don't have any money for you to collect anyway. Just leave me alone.

John Paul Stevens Hires One Law Clerk

It would be wrong to write off Justice Stevens as "just another liberal Justice on the Supreme Court" because he is one of the most creative, original voices to grace our bench in a generation. On hot-button social issues, yes, he tends to vote in ways that annoy social conservatives. But on less sexy kinds of cases, his keen intelligence and distinctive perspective on issues have been remarkably influential, persuasive, and often unpredictable.

When the man hires only one of the four law clerks he's allotted, that suggests he's winding down and getting ready to retire. Well, the man is pushing ninety years of age. And he's certainly earned it. Taking guesses as to possible replacement nominees in 5.. 4.. 3.. 2..

September 1, 2009

Carrie Prejean Goes To Court

Carrie Prejean, the former Miss California USA 2009, was stripped of her title after she spoke publicly against same-sex marriage. Yesterday, she filed suit against the Miss California USA pageant and two of its directors, claiming that she was discriminated against on the basis of religion.

I hadn't considered Carrie Prejean to be worthy of more than a brief comment before. But she's playing on my turf now. That means this is going to be a long post. If you non-lawyers have the stomach to wade through this, you'll get a good insight into how lawyers look at issues like these -- at least, you'll get an insight into how this lawyer looks at this issue. I promise to try and keep things at a layman's level of analysis.

1. Applicable Law

Her principal causes of action are defamation and California's Unruh Civil Rights Act, which does indeed prohibit religious discrimination (among other things):
(b) All persons within the jurisdiction of this state are free and equal, and no matter what their sex, race, color, religion, ancestry, national origin, disability, medical condition, marital status, or sexual orientation are entitled to the full and equal accommodations, advantages, facilities, privileges, or services in all business establishments of every kind whatsoever.
(c) This section shall not be construed to confer any right or privilege on a person that is conditioned or limited by law or that is applicable alike to persons of every sex, color, race, religion, ancestry, national origin, disability, medical condition, marital status, or sexual orientation.
* * *
(e)(3) For purposes of this section ... "Religion" includes all aspects of religious belief, observance, and practice.

2. Substantive Allegations of Suit

The complaint is very detailed (indeed, much more so than it needs to be or probably ought to be) in its substantive allegations. So I'll have to summarize.

First, it describes Prejean (when applying for the Miss California USA pageant ) as being discouraged from making reference to her religion. Then, it describes her making reference to her religion while fulfilling her duties as Miss California USA, such as when she gives speeches at public appearances, and making the organizers of the pageant aware that she holds deeply-felt Christian beliefs and attends a Christian college.

After that, considerable attention is placed on the Miss USA pageant held in Las Vegas, Nevada on April 19, 2009 and statements made by Perez Hilton and the other contest judges. Essentially, the complaint alleges that all the judges were either gay or gay-friendly and favorably disposed towards same-sex marriage, and that they held it against Prejean that she held, and expressed, a contrary opinion. It describes a number of unflattering things said by Hilton and other judges about Prejean.

But the judges are not named as defendants. The defendants themselves are described as of a kind with the judges, though, and presumably we are supposed to infer the defendants' intent from the judges' public statements, with associative comments like these:
As co-director of Miss California USA, I am personally saddened and hurt that Miss California believes that marriage rights belong only to a man and a woman. ... I believe that all religions should be able to ordain what unions they see fit. I do not believe our government should be able to discriminate against anyone and religious beliefs have no politics [sic] in the Miss California family.*
Substantial allegations indicating the homosexuality and advocacy of same-sex marriage of the defendants follow this.

Then there is a bit about Prejean appearing on the "Today Show" and being told by the pageant's organizers to not mention religion and to soft-pedal her stance on same-sex marriage, and her disregard of those instructions, saying instead that she "had spoken from her heart, from my personal beliefs and for my God ... I did not want to offend anybody. But, with that question specifically, it's not about being politically correct. For me, it was being Biblically correct." Allegedly, after this the organizers allegedly did not pay for her plane fare back from California, and they would not assist her in scheduling appearances, eventually stripping her of her crown.

From there, we read allegations that the defendants agreed Prejean could make public appearances, including a television spot opposing same-sex marriage, as long as she did not identify herself as Miss Cailfornia or use crowns, tiaras, or other indicia of her status; accusing Moakely of leaking information about Prejean's having had breast augmentation surgery paid for by the pageant and then accusing the doctor of having done so, and more and more nefarious conduct of this sort. Ultimately, the complaint alleges that the defendants accused Prejean of breaching her contract by not fulfilling her functions as Miss California USA and instead becoming a "defendant of traditional marriage," which is a euphemism for "opponent of granting marriage rights to same-sex couples."

So much for the alleged facts. Here are her legal theories:

As to the defamation claim (in two causes of action, one for libel and the other for slander), Prejean is described as having been "injured in her trade or profession as a model and beauty pageant winner," because the defendants allegedly claimed, falsely, that she was unreliable and had refused to participate in scheduled appearances in violation of her contract. These defamatory statements allegedly caused her to suffer a loss of income and emotional distress.

There is a claim for public disclosure of private facts -- specifically, the private fact that Prejean had got a boob job. Which, allegedly, was the pageant's idea and not Prejean's, and which the pageant had paid for.

Then there is the religious discrimination claim. More about this below. Finally, there are the torts of intentional infliction of emotional distress and negligent infliction of emotional distress.

I've got bad news for Prejean's attorney in that negligent infliction of emotional distress is a highly disfavored form of a cause of action and limited pretty much to the facts of a case called Dillon v. Legg (1968) 68 Cal.2d 728., in which a mother witnessed her small child struck and killed by a car. The mother was not physically injured herself but she could recover damages for the emotional distress of seeing her child killed. A more amorphous tort, exposing all sorts of people to all sorts of liability for things they did not intend to do, is difficult to imagine. That is why in the case of Thing v. La Chusa (1989) 48 Cal.3d 664, 667, the California Supreme Court considered that a relative of someone who suffers harm from someone else's negligence will always be emotionally distressed by that, and it would not be fair to extend functionally infinite liability to everyone who was distressed by anything anyone else had ever done to anyone they knew.:
These reactions occur regardless of the cause of the loved one's illness, injury, or death. That relatives will have severe emotional distress is an unavoidable aspect of the 'human condition.' The emotional distress for which monetary damages may be recovered, however, ought not to be that form of acute emotional distress or the transient emotional reaction to the occasional gruesome or horrible incident to which every person may potentially be exposed in an industrial and sometimes violent society. . . . The overwhelming majority of 'emotional distress' which we endure, therefore, is not compensable.
So basically, you've got to be a personal eyewitness to something viscerally awful happening to someone you are related to by blood, adoption, or marriage before you can recover for this. Someone being mean to you is not what this tort is for.

This is not new law, and seeing this claim included (and not a claim for FEHA, see below) suggests to me that the plaintiff's attorney may not have researched the applicable law enough. My general opinion of someone alleging Negligent Infliction of Emotional Distress in a case that doesn't have facts a lot like Dillon v. Legg is that it is one of the marks of a hack. I could be wrong -- plaintiff's counsel Charles S. LiMandri might turn out to have better kung fu than me; after all, he is a member of ABOTA and I am not. (I haven't accumulated enough ABOTA points yet because I get nearly all of my cases settled before they go to a jury trial, the way a civil litigator is supposed to!)

But you know what's missing from that list of causes of action? Breach of contract. Isn't that interesting. Because we can be pretty sure that the pageant and the other defendants are going to say that they did what they did in response to Prejean breaching her contract with them. They're going to say that she had fifty or so scheduled appearances that she didn't go to because she was busy promoting herself as a spokesperson for the anti-SSM movement -- something that they disagree with but that's beside the point; the point is she should have been cutting ribbons at supermarkets and kissing babies and visiting retirement homes, things for which the pageant would be paid a fee and thereby generating income.

As I will argue below, the critical document here is that contract. You'd barely know there was a contract governing the parties' relationship from the complaint. Typically, in a case where you have a contract governing the relationship between the parties, you'd attach that contract as an exhibit to the complaint.

The obvious reason for not alleging breach of contract and not attaching the contract as an exhibit is that the plaintiff's attorneys believe there is a substantial chance that doing so would hurt the case because the plaintiff did, in fact, breach the contract before the defendants did.

The only other reason I can think of would be if the terms of the contract are confidential, in which case the plaintiff's attorneys should have indicated that the terms of the contract were confidential and requested the Court's permission to file the contract under seal.

At any rate, without that contract, a good analysis of the legal claims is not really possible.

3. Did Religious Discrimination As Defined By The Law Take Place?

There are a plethora of allegations that if proven would demonstrate that the defendants here were responding to Prejean's opposition to same-sex marriage. It's also alleged that they were uncomfortable with Prejean's overt religiosity. I will assume for purposes of this analysis that the pageant's claim that Prejean's failure to appear at scheduled bookings was the reason she was fired can be proven to be a tissue of lies, and the real reason behind that pretext was the pageant's disagreement with Prejean's public stance against SSM.

Is publicly voicing one's opposition to same-sex marriage an "aspect of religious belief, observance, and practice"? This is a critical question Because if it isn't, then Prejean has no claim for religious discrimination under the Unruh Act, or indeed, under any California or Federal law forbidding religious discrimination.

Now, if you'll recall back to the Prop. 8 campaign, the opponents of granting marriage rights to same-sex couples went very far out of their way to argue that they were not trying to impose their religious beliefs on the rest of society. Instead, they based their argument on the idea that their religious freedoms would be impaired if same-sex marriage were the law in California. That was also the argument for the TV spot Prejean appeared in.

This is not an act of worship. Debatably, it is an explication of one's religious beliefs. But more to the point, since the issue is framed in terms of individual rights and the proper exercise of governmental power, it is really an explication of one's political beliefs. The Unruh Act does not forbid discrimination based on one's political beliefs or one's political activities.

If the defendants were uncomfortable with Prejean's religiosity, wouldn't they have not awarded her the title of Miss California USA in the first place? The complaint clearly demonstrates that they were aware of her Christian religious beliefs and they not only gave her the state-level crown but engaged her in various activities as Miss California USA after they knew of it.

The Unruh Act provides for non-discrimination in "the full and equal accommodations, advantages, facilities, privileges, or services in all business establishments of every kind whatsoever." In California, because it is a California state law. The Miss USA pageant took place in Las Vegas, Nevada, beyond the jurisdiction of the state of California. Now, various acts of discrimination based on religion allegedly took place in California both before and after the Las Vegas pageant. But a very substantial portion of the allegations of the complaint have to do with Prejean not winning the pageant.

What about that? If the complaint is accepted as true on its face, then Prejean's answer to Hilton's question was the reason she did not win; had she given an answer Hilton and the other judges had found more palatable, she would have won. In fact, I think this is too uncertain to withstand legal analysis, but let us assume, arguendo, that it is nevertheless true. So what?

Are the judges supposed to not ask that question in the first place? What about asking about "world peace?" Some people are actually opposed to world peace, believe it or not -- count me in that number. Some of us think that the use of military power is, on occasion, both morally justified and required when politics and diplomacy break down. Sure, it would be great if that never happened, and hopefully it's rare, but sometimes a nation is entitled to take up arms in its own interests. That, too, is an unpalatable answer to a vapid pageant question, and a contestant saying, "It sucks, but sometimes you've got to go to war," would probably wind up losing a beauty pageant too because beauty queens are supposed to be in favor of world peace. That's political, not religious.

Now, let's take it another step -- let's say the beauty queen asked a question about world peace is a Quaker. Her religion forbids her from taking up arms in the service of any government, including that of her own country. She gets asked a question about military service and instead of saying "I support the troops," she says, "My religion informs my morals and tells me that military service is inherently morally wrong. No offense to any soldiers or their families, that's just my belief in the Bible." She should lose the pageant, too, because beauty queens are supposed to support the troops, not condemn them.

If Carrie Prejean had made statements thought to be against world peace or which condemned military troops, and been fired for them, this seems to be a pretty easy call -- that's not a termination motivated by religious discrimination; it's a termination motivated by a desire to protect the reputation of the sponsoring organization. The organization is allowed to have and express its point of view on issues, too, and if its agent and public representative expresses a contrary point of view, the organization is within its rights to discipline and ultimately terminate its agent for doing so.

So let's be clear -- it's all well and good to claim that one is the victim of religious discrimination when one's actions are popular. But when they are unpopular, it becomes a little bit harder to rally around her. Fact is, same-sex marriage is a highly divisive issue at this phase of our society's evolution. It's not surprising that in an industry dominated by gay men, the opinion of favoring SSM would become orthodoxy -- just as advocacy of tort reform is an orthodoxy among people like insurance adjusters. Prejean knew this when she spoke out against SSM.

4. Did The Miss California USA Pageant Employ Prejean (And Who Does Such A Factor Really Favor)?

This is actually a pretty critical question, one I should have asked earlier. Why? The Unruh Civil Rights Act does not apply to relations between employer and employee. Isbister v. Boys' Club of Santa Cruz, Inc. (1985) 40 Cal.3d 72, 83, fn. 12, followed by, inter alia, Alch v. Superior Court (2004) 122 Cal.App.4th 339, 391. That does not mean, of course, that employers may discriminate against employees; it means that the Unruh Act is the wrong act. The right law to have used if she is an employee (or even an independent contractor providing services in a quasi-employment relationship) would be the Fair Employment and Housing Act, commonly called FEHA, and which is found at Government Code §12900.

This would hardly blow Prejean's claim out of the water. But it would mean that she would have to start over -- and she would need to make a pre-filing claim with the Department of Fair Employment and Housing to get a right-to-sue letter. She certainly still has time to do it; she can make that pre-filing claim up to one year after the alleged acts of discrimination. (Federal law would not be so gentle with her, but we're talking California law here.)

At paragraph 114 of the complaint (at the bottom of page 19), Prejean alleges that she was an independent contractor to K2 Productions, Inc. (the legal name of the entity that runs the Miss California USA Pageant). As such, she was not a member of the general public availing herself of the facilities and accommodations of the pageant. She was someone very special with respect to the pageant.

Now, the real test of whether one is an employee or an independent contractor is the question of what kind of control the principal can exercise over the agent. There are a bunch of other factors you consider as well, like who supplies the tools, the transportation, the training and education; whether the agent is free to accept outside work or indeed is doing similar sorts of work for many different principals; whether the agent is required to be in particular places at particular times or whether the agent can do or not do things as she pleases and delegate tasks to others; and the list goes on and on. One thing that is not considered at all is whether the parties have signed a document identifying the agent as an independent contractor. A California court will utterly ignore such a statement, despite the insistence of sometimes both sides of a dispute that it was really an independent contractor relationship, and find in favor of the presumptive relationship of employment.

Looking at the subsidiary issues, I could argue with a straight face that Prejean should properly be considered an employee and not an independent contractor. Assuming that the contract required Prejean to do particular appearances, that's the pageant telling her where to be and when. And it seems that there was at least a custom and practice of the pageant providing transportation to those venues, or else Prejean wouldn't have been complaining about the pageant not paying for her return flight home from New York. It's pretty clear that she had to wear her sash and tiara, which would be part of her "uniform." And she had to render her services personally; she could not send out a delegate of her choice to perform in her place. But it all really comes down to control -- time, place, uniform, personal service are all different factors of control.

The real issue is whether Prejean was required to accept the appearances that the pageant set up for her. If she was free to accept or reject as many as she wanted, then that would strongly suggest that she was in control of the relationship and not the pageant, making her an independent contractor. If she had to do the appearances as set up by the pageant, she was an employee. If, as I suspect the evidence will show, she could accept or reject the ones she chose, but there was an expectation that she would do at least a substantial amount of them but that she was free to turn down the occasional appearance here or then, then it's something of a gray area but one balance one that favors the presumption of employment. That strikes me as analagous to an employee being asked, but not required, to work overtime.

I don't think she has an Unruh Act claim as a matter of law because of the Isbister case. But Prejean might want to explore the "employment" idea further. If she can prove that the pageant's "breach of contract" theory is really a tissue of lies and she was actually terminated for expressing her political opinion against SSM, then two sections of the California Labor Code, which are almost unique to this state, would come in to play:
1101. No employer shall make, adopt, or enforce any rule, regulation, or policy:
(a) Forbidding or preventing employees from engaging or participating in politics or from becoming candidates for public office.
(b) Controlling or directing, or tending to control or direct the political activities or affiliations of employees.

1102. No employer shall coerce or influence or attempt to coerce or influence his employees through or by means of threat of discharge or loss of employment to adopt or follow or refrain from adopting or following any particular course or line of political action or political activity.
Here, then, is potential grounds for a wrongful termination in violation of public policy tort claim. But, to have a wrongful termination, you have to have employment in the first place. Prejean claims she was an independent contractor, not an employee, which would forestall this claim.

For a more deetailed discussion of the implications and scope of §1101, see this excellent post from Eugene Volokh. While I think he's definitely on the right tract for the employee's rights, I don't think Prof. Volokh gave enough consideration to the employer's rights to engage in political speech, too. If the employer has a particular political stance (as it is unquestionably permitted to do) then can it terminate an employee for holding and advocating a contrary one? So far as I can tell, this has never been tested in a California court, but the plain text of §1102 would suggest that the answer is "no."

In fact, I find §§ 1101-1102 troubling in their scope. If I joined the Nazi Party, I am unquestionably engaged in political activity. But it's quite probable that if I did so, I would cast my private (non-governmental) employer into very substantial disrepute unless she fired me. Which she probably wants to do anyway if I'm advocating Nazi political positions. But it looks like the law forbids my employer from doing that, which means that despite my employer's powerful disagreement with the Nazis, she has to suffer the loss of business resulting from my political advocacy -- political advocacy with which she vociferously disagrees. I think that if I joined the Nazi Party, my employer should be able to fire me for that -- if only to protect herself.

But I don't get to pick and choose the law. If the pageant is an "employer," then Prejean's expression of a political opinion about SSM cannot be held against her by the pageant. If Prejean really is an independent contractor, then this law doesn't apply.

5. Expressions of Opinion

Now, she's also sued for defamation, which is a different sort of claim than the civil rights analysis. Calling someone "a dumb bitch" can be defamation in some contexts -- and in others, it is an expression of opinion. Statements of opinion are not actionable.

The difference between an opinion and a statement of fact is that a statement of fact can be proven objectively true or untrue; an opinion is not susceptible of being objectively false. "Whoppers are better than Big Macs" is not a statement that can be proven true or false by reference to objective evidence; one either prefers Whoppers to Big Macs, or vice versa, based on one's own subjective opinion. "Whoppers contain more saturated fat than Big Macs," however, is a statement that can be proven true or false by objective means -- take a Big Mac and a Whopper, dunk them in some water and boil them, and measure the fat that you skim off the top of the liquid. If the Whopper generates more fat than the Big Mac, the statement is true; if the Big Mac generates more, then the statement is untrue. And importantly, the measure of the truth of the statement is derived by way of an objective test which will yield the same results regardless of whether the administrator of the test prefers Big Macs or Whoppers.

Calling someone a "dumb bitch" is a statement of an opinion because it is inherently an expression of dislike. "Dumb" may or may not be possible to objectively test but generally I think that it is not because an IQ test requires a psychologist to properly interpret and quantify and most people aren't referring to IQ when they say someone is "dumb." A similar analysis would apply if you're question whether she is a "bigot." That's a matter of opinion.

But, assuming that she gets paid for making appearances as Miss California USA, and holding that title enhances her earning power as a model, then a claim that she is unreliable and refuses to appear at bookings would pretty clearly be damaging to her profession. So what it comes down to here is, again, whether she was required or expected to make appearances scheduled by the pageant if so so whether she did or did not do what was required or expected of her in her contract.

6. Conclusion and Lessons Learned

Prejean's claims appear to be of dubious legal merit. This is not a slam-dunk case for her. The odds favor the defense, but the outcome is not certain. Much depends on the contents of her contract with the pageant, and I have not read that document. The absence of that document or even references to its contents in the complaint hints that there is substance to the defendants' anticipated defense that Prejean broke the contract.

So, here's the first lesson. Don't run from your own contracts. Same thing for your own public statements, your own commitments and promises. They will be used against you if they can be. Put your own actions up front and center -- and demonstrate how you lived up to it and it's the other party who breached it. You'd better believe that what you try to hide will be exactly what the other side is going to spend its time and energy looking for.

If I were defending this lawsuit, I'd be preparing a special motion to strike based on California's anti-SLAPP law, and hoping to get a big award of attorney's fees for it. I'd be alleging that the pageant and its organizers have a free speech right to advocate in favor of SSM, among other political viewpoints, and that a spokesperson who does not agree with the political viewpoints of the organization lacks a bona fide occupational qualification to be the spokesperson. Prejean seems preoccupied with her right to speak out against SSM, and not to have given any thought to the employer's speech rights.

Would such a motion win? Again, hard to say without that contract and without all the evidence at my disposal. To defeat the motion, Prejean would need to not only justify her legal theories, but produce admissible evidence that would be sufficient to establish that she is more likely than not to win her claims before a jury. Would such a motion win if I brought it? I've never lost an anti-SLAPP motion in my career, and I've brought several. Nor have I ever been awarded less than $15,000 in fees paid by the plaintiff who made the grave error of suing my client. This is not bragging -- I suspect that my record in this regard is far from unique.

But, that's the second lesson. Always look at it from the other party's perspective, even if only to anticipate their responses. There may be more danger there, and less opportunity there, than you initially thought. And you always want to know how the other side is going to try and make itself look good.

Prejean's lawyers may or may not have wrestled with the question of whether she is actually an employee or an independent contractor. I can only assume that they have not alleged an employment relationship for a reason. But that does not mean that one does not exist, nor does it mean that this would hurt her strategically. Frankly, I think the Labor Code §1102 issue could have been the strongest card in her hand, and a FEHA claim looks a lot stronger than an Unruh Act claim.

Which is the third lesson. If you can, take the time to know what you're doing. Think it through first. If there's no hurry to file a lawsuit, it pays to research the hell out of things first. Take the time to line up your ducks before shooting at them. In fact, it's better to not only line up the ducks, but if you can, super-glue their feet in place before taking your shots. I've sometimes hesitated to file lawsuits until I could get third-party witnesses to provide me with affidavits so that I had enough evidence to win the entire trial from the day I filed the lawsuit. I've also delayed filing suits and delayed filing motions until I could consult with other attorneys that had more experience than me to learn if there were any tricks or wrinkles in the law that I didn't know about. It's nice when you have the opportunity to do that.

I can't really say one way or another whether Prejean's lawyers have thought this whole thing through. But if I can think of all of this stuff the same evening I read the complaint, then that means they could have thought of it, too, especially given that they've been sitting on top of this thing for at least two months before going to court. They have the luxury of time, and they should have used it. If they had, maybe they wouldn't have laid down their best weapon before walking in to the fight.

If you want to follow the progress of this case as it moves through the court system, you can do so at this page in the Los Angeles County Superior Court website. You will need to enter the case number, BC 420823, in the dialog box at the bottom of the page; unfortunately, I can't give you a link with that number already pre-set (at least, my kung fu isn't good enough to do that; maybe it can be done). If you want to download the actual documents, you can do so as well, but I think it'll cost you something like eight cents a page.

My personal best wishes are with the pageant, because I think Prejean is in the wrong for making a fundamental misassessment of the position she had asked to be in. The beauty pageant was in favor of SSM and everyone understood that. The winner of the pageant becomes the pageant's representative, and I think the pageant should have the right to pick someone who at least does not contradict its point of view. Prejean went out of her way to contradict the pageant's point of view, so the pageant took action to protect itself. That's not a legal opinion, though, it's a moral one -- and a moral assessment which will probably ultimately lead me to be critical of some aspects of California law.

As a sidebar, take note of how social conservatives have reacted to the filing of the lawsuit. Turns out, tort reform is only a good idea when liberals are the plaintiffs.

Anyway, here's the boiled-down-to-the-essence summary -- Carrie Prejean's lawsuit against the Miss California USA pageant deserves to fail, both morally and legally; I think the odds are against her based on what seem to me to be several strategic missteps by her attorneys. And that is how I prefer it be.

Hat tip to Prof. Howard Friedman.

* Emphasis is added in the complaint, not by me. The [sic] appears appropriate because Lewis' poorly-worded statement deteriorates from ambiguity about whether he is speaking in his official capacity or expressing a personal opinion, into a nearly unintelligible hash of the language from which his actual meaning must be inferred rather than simply read. The issue, though, is not Lewis' grammar, it is the function he was fulfilling when he expressed himself.