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No one should expect criminal charges short of Bowman writing a confession in someone else's blood. It's more just funny to watch how many pundits are willing to admit they can't read, for a defense no one cares about, over a matter that's got never going to cost their side a thing.

The complexity of proving motive in honest cases is difficult (though there's been no shortage of cases where that bar gets set pretty low!), but

And there's a much more straight-forward local charge for pulling a fire alarm outside of an emergency, which he also won't be facing.

The building that was evacuated was the Canon Hill building across the street, not the Capitol building where the vote occurred. If he wanted to prevent a vote wouldn't it make more sense to pull the alarm in the Capitol building itself?

I don't think incompetence is particularly effective as a defense, but separately a number of Representatives were working from that building (including Bowman).

Why would a Democratic congressman want to obstruct the voting on a bill he is in favor of?

At the time Bowman pulled the alarm at 12:05PM, (which we know some House Reps 'panicked' over), House Democratic leadership was asking for more time to review the bill. Which doesn't mean that the alarm would have worked for that purpose, or even that Bowman (correctly or incorrectly) suspected it would, but it's not so clear that there's no possible motive.

I'd... more consider touching the crotch of a man's pants as a handjob, even if not going very far toward conclusion, but if you'd prefer I can go with 'giving inexpert grope'? 'Getting caught on the way to first base'?

Ah, to be clear, it's marked fire alarm.

EDIT: there's some confusion possible because this door isn't always solely an emergency exit. But it's still pretty stupid.

Today's scheduled drama revolves around the last-minute efforts to pass a continuing resolution funding the government for 45-days, with Congress coming in on a weekend. There's a lot of complex politics going on, between a right-wing faction that seems as interested in drama as day to day governance, Democratic interests in more expansionist efforts, the matters of Ukraine, and some politicians not being present due to COVID or death. With a bill getting through the House on widely-bipartisan efforts (with 90 Republicans and only 1 Democratic Representative voting no), some Republicans are pondering whether this will be seen as an admission of weakness. The current one's a fairly far cry from the much more significant cuts that previously faced both Democratic . That's fairly standard politics, though.

Instead, we have something hilarious:

"'Congressman Bowman did not realize he would trigger a building alarm as he was rushing to make an urgent vote, the congressman regrets any confusion,' just to clarify some things on that."

(Bowman later voted for the bill.)

There's obvious comparisons to Other High-Profile Incidents though they're pretty inapt; as funny as Bowman photoshopped into the Lectern Thief's or Qanon Shaman's faces is, the lack of trespassing does matter. Between this, Santos pretending he's a whole lot more interesting than he was, The Squad playing with edgy racism, and Boebert giving an inexpert handjob during the showing of Beetlejuice, all we need now is a pregnancy and a Congressman buying shitty alcohol with a fake id to complete the whole high school bad decisions spread. To really complete the farce and the metaphor, Bowman's background includes some time spent as work at a school that would suspend or expel people for this. Bowman's claim to have confused an alarm system and a door release is not especially likely, but it's enough of a fig leaf that I'll be surprised if the House GOP's resolution to expel him goes anywhere, let alone the potential charges for falsely pulling a fire alarm in DC. Bowman's district is 84% Democratic, so it'd not mean anything even if he were to voluntarily resign, and it's not like he's Menendez.

Maybe he'll end up with a token fine? I'd be surprised.

Which doesn't matter, but eventually you run into the "that's how escalation works" bit.

It's possible, but a) given VanDyke's procedural claims, it's quite possible you'd need ten thousand cases for a one-in-ten odds to come about, and b) the 9th Circuit has already been pretty willing to make nakedly political decisions that overturned lower decisions that basically just quoted Heller. The legal calculus might have shifted a little given SCOTUS' direction, but there's a reason I keep pointing to that slightlylesshairyape post pondering if that is the one trivial Second Amendment win that the 9th would find to trivial to be worth overturning, and it's from after Barret's confirmation, and VanDyke guessed right.

Unfortunately, along the lines of "face for radio" (which... also true), I've got a voice for print and a writing cadence for asynchronous calls. Not really something I've considered.

The Ninth Circus vs. VanDyke: Collegiality Edition

Duncan v. Bonta ('large' magazine ban) has had another order issued en banc. Like Duncan v. Bonta in 2021, the 9th Circuit has, to the surprise of no one with a pulse, issued a stay against gun rights.

About the only silver lining to that cloud from my perspective is a cheeky VanDyke dissent. And as you can guess when Hurwitz leads by trying to play cleanup and to bash the "rhetoric" of his colleagues (just like in the 2021 Duncan), this one's a doozy.

Where VanDyke's McDougall opinion included predictions of and draft copy for an en banc reversal that would find the Second Amendment covered nothing (which I almost thought would turn out pessimistic given Bruen, until the case was shoved to the lower court decided again that the Second Amendment covered nothing), this is 'just' an administrative stay during appeals, and normally such deep discussion of philosophy of law would be unnecessary and unexpected. Instead, VanDyke looks to the past in today's piece:

Apparently, even summary reversal by the Supreme Court has not tempered the majority’s zeal to grab this case as a comeback, stay the district court’s decision, and make sure they—not the original three-judge panel—get to decide the emergency motion (and ultimately, the eventual merits questions) in favor of the government. I think it is clear enough to everyone that a majority of this en banc panel will relinquish control of this case only when it is pried from its cold, dead fingers. And I think it is clear enough to everyone why...

"Comeback" cases reflect Ninth Circuit Rule 3.6 here. Butamay previously pointed out that he knew of literally no cases before where the 9th Circuit has taken a "comeback" case and made decisions at the en banc for an emergency stay rather than returning it to a normal appeal, and despite the majority's claims this is by-the-book it's also hard to miss that the ink on these books are so fresh. The "comeback" rules date back only to 2016. But that's just normal calvinball. Worse:

But the current irregularities highlighted by Judge Bumatay’s dissent are not the only way this case continues to demonstrate our court’s enduring bellicosity toward the Second Amendment. The irregularities in this case run much deeper— indeed, all the way back to when this case was first called en banc. This en banc panel was born in illegitimacy, and this case should never have been taken en banc in the first place.

After the three-judge panel first issued its opinion in August 2020, one judge on our court requested Rule 5.4(b) notice in three cases (including this one) but then inadvertently missed the deadlines to timely call the cases en banc under our clear rules. That could happen to any judge. But rather than simply accepting the result dictated by our rules, or even deciding as an entire court to waive our rules, we went in a different direction. First, the decision was made by someone— not by the rules, or even the entire court—to allow the respective panels to waive the deadlines on behalf of the entire court. Then, the campaign started: earnest conversations were had, hearts were poured out, tears were shed, and pressure was applied to the panels with mace-like collegiality. And in the end, a discrete collection of judges—again, not the entire court—struck a “compromise,” circumvented our own rules, and allowed the en banc call to move forward. But only in this one case. The agreement was made to call this case but drop the en banc calls in two other cases—_including a death penalty case_. Priorities.

I'd be a little interested to have names, here, but it's not clear even this description gives enough detail to go digging: GO5.4(b) notices aren't covered by courtlistener or the 9th Circuit's website.

We have a process for suspending the rules, upon a vote of the entire court. See 9th Cir. General Order 12.11. But no judge tendered a Rule 12.11 request. Instead, this was handled off the books by a handful of judges. Which makes it even worse. This off-books approach allowed the would-be en banc advocates to pressure the panels to be “collegial,” and simultaneously concealed these conversations from the rest of the court. It also delimited the scope of the question to whether we would “bend the rules” and allow some exceptions in three specific cases, which prevented the entire court from considering the weightier question of whether, as an institution, we should be suspending our settled rules for “particularly important cases.” Such agreement—however procured—does not somehow confer legitimacy.

In sum, not only is our court treating this case “special” now, but the process that brought this case en banc in the first place was illegitimate from the start. This demonstrates and perpetuates this court’s anti-Second Amendment posture, rewards the weaponization of (one-sided) collegiality, and damages the internal and external integrity of the court. How are we to uphold the rule of law, and reassure the public we are doing so, when we disregard our own rules and make questionable decisions like this behind closed doors?

To tl;dr: the 9th Circuit has broken its own rules on a case, of the exact sort of behavior normally considered a right-wing conspiracy theory, in order to more expediently fuck over the rights of American citizens, and this was not revealed for nearly three years.

Hurwitz's concurrence does not even contest this claim. Nor does any other part of the court.

I'm not going to make predictions, here. We are talking the same judges as the 2021 appeal and its effervescent logic -- judges willing to play so heavy-handed with the balancing test then will just as easily find historical relevance in their tea leaves -- but in turn there are some fun tactical considerations that might slow them. But on the gripping hand, the nature of this matter as an interlocutory review, leaves a lot of ways to diddle the schedule. There is no meaningful procedural appeal for a federal circuit court of appeals breaking its own rules, especially since the case has already gone back up and down from SCOTUS since. And there's no tort for being a rules-violating judge, even were judges not completely immune to lawsuit for their actions related to their jobs.

But one could understand why I'm very skeptical that Hurwitz's pretense this is 'just' an emergency stay will age well. And more broadly, to find that not only have the people in change of arbitrating the rules not only put a thumb on the scales -- long common knowledge -- but have broken and hidden the breaks from their own claimed process leaves serious doubt whether any one procedure in the 9th Circuit is available equally to all comers.

Well, that's just one court, albeit one covering more than a fifth of the country's populace.

New York v. FFLs

There's an interesting case going up to SCOTUS named Gazolla v Hochul, which was previously so far off everyone's radar that gun lawyers didn't spot it until Hochul wrote a vague and panicked tweet. It's not going to go anywhere -- it's a complicated mess asking for extraordinary relief of the sort SCOTUS never provides, while also being a bit nutty even by the standards of pro-gun legal buffs still trying to operate in New York after what happened to the NRA.

And while it's kinda funny in hindsight to see a nutty complaint allege a morass of problems amounting to infringement of the right to keep arms that ended up already coming true before the Court even reviewed the case, to which the state's response rests heavily on the claim that "The plain text of the Second Amendment does not cover the right to sell arms", that too is a little too common to be interesting and mostly a repeat of the Californian version back in Rhode v. Becerra.

To add insult to injury, Nigrelli did not even bother to issue state law required certification of the operational status of the ammunition background check system. NY PEN §400.02(2). The NYSP never did has not issued any ammunition background check form this entire past year, nor produce regulations for any administrative appeals process for denials of a firearm or ammunition background check. NY PEN §§400.03(2) and (6) and NY EXE §228(4)(a). The defendants repeatedly and persistently fail to comply with their own laws since the bills passed in June/July 2022 – an argument we repeatedly spell out. It defies logic that no judge, to date, has held the defendants to the limits and requirements of their own 2022 laws. [...]

The suit also alleges that the strict text of the law only allows Hochul and Nigrelli to put non-federal-firearms items through the state NICS system, leaving federal-firearms to direct FFL-to-NICS discussion, while Nigrelli and the FBI have cut all direct FFL access through the state to NICS. There's just a litany of this stuff: the laws required concealed carry permit holders to get training from certified courses where the course did not exist, for those wanting to buy a semiautomatic rifle to apply for a permit that did not exist, so on. In several cases, state police provided e-mails to individual FFLs or to the NSSF claiming they would not enforce the laws until relevant guidance was available, even as statutory deadlines were long-past, and while not provided that information consistently to all those covered, sometimes in contradictory ways.

Fine, he who makes the rules decides who has to obey them, anyone paying attention to this game knows that. Most states that have established mandatory time limits for background checks, as a similar matter, have often simply flat-out ignored them. What's new?

The state makes an error of federal law in this provision. There is no federal ammunition background check requirement or system. 18 U.S.C. §922(t) specifically and only relates to the transfer of “a firearm,” as that term is defined at federal law. It is illegal for a state to use or attempt to use the NICS federal background check system for an ammunition background check. 28 CFR §25.11. This point is briefed throughout our record.

Federal law specifically prohibits "state or local agencies', FFLs', or individuals' purposefully using the system to perform a check for unauthorized purposes" and gives punishment of "a fine not to exceed $10,000 and subject to cancellation of NICS inquiry privileges." Even to the extent state-run queries can be more expansive, as soon as they contact the FBI's NICS they must be limited to only firearms-as-defined-by-federal law (or explosives-as-defined-by-federal-law, in a way not relevant here). This was a hard-fought limit to the system, because gunnie groups (rightly!) feared that the early NICS would be misused; with marginal FFLs putting people they'd never sell a gun to through the system to trawl for embarrassing information, or to require people face daily NICS checks.

Now, Hochul claims that "the State Police are authorized to use state databases to conduct background checks for ammunition purchases, Penal Law § 400.02(2), and there is no reason to believe they will do otherwise." And she's right: even were the New York background check system's operators violating federal law, it's very far from clear how anyone could find evidence of it before summary judgement on the matter of ammunition. Except there's a few classes of guns that are not firearms by FFL/NICS rules but must receive a background check under New York law, and the web interface, the only working interface for the New York background check system, does not have a way to distinguish them. That's not proof, still -- given how poorly the system's worked so far, it's certainly possible that the New York background check system has forgotten to pass a lot of its requests to NICS! -- but while it might not be enough to it's certainly matched the low standards needed to push federal investigations in the past.

Except that it doesn't particularly matter. Even in an ideal case, this is the sort of thing that gets brushed over, simply because the rules aren't written for it. And it's very far from an ideal case, for one very blatant reason: federal law is the domain of attorneys general and the federal Department of Justice, whose lead is a man who previously reinterpreted the laws mandating destruction of certain NICS records to instead allow retention. He doesn't care.

Texas v. Ruger v. WellsFargo

Okay, well, no one would mess with Texas, would they? There's an interesting letter from Ruger today:

As you know, §2274.002 requires that any company who wishes to enter into a contract with a Texas governmental entity submit a written verification that it “(1) does not have a practice, policy, guidance, or directive that discriminates against a firearm entity or firearm trade association; and (2) will not discriminate during the term of the contract against a firearm entity.” On September 29, 2021, Wells Fargo provided such a written verification to the Office of the Attorney General of Texas. When this came to our attention, I wrote to Texas Attorney General Ken Paxton questioning the verification.”

As detailed in my letter, Ruger began working with Wells Fargo in September 2018. Our business relationship included a credit facility and banking operations (operating accounts, share repurchases, credit cards, etc.). However, in July 2021, less than three years after our relationship with Wells Fargo began—and just two months before Wells Fargo provided the AG's office with its verification — our local contact at Wells Fargo informed our Chief Financial Officer that ‘Wells Fargo would not extend any new credit to us and therefore would not renew our credit line. (due to expire in September) due to “reputational and headline risk” related to our industry. ‘When pressed about these “concerns,” our Wells Fargo contact cited our manufacture of modern sporting rifles as a “red flag.” ...

Well, perhaps there was some other, more serious cause?

As a result of my letter, the Attorney General's office asked Wells Fargo to provide further explanation in support of its verification, which Wells Fargo did not share with us. Ruger ultimately filed a Texas Public Information Act request to learn of Wells Fargo’s ‘explanation, which prompted the Texas AG to notify Wells Fargo of the request and invite a response. Wells Fargo, through counsel, objected to production of its explanatory letter, claiming that is rationale for refusing to renew Ruger’s credit facility constituted “trade Secrets” and “confidential commercial or financial information .. the release of which would cause Wells Fargo substantial competitive harm.”

Perhaps Wells Fargo was only discriminating two months before issuing a letter to the Texas AG:

The problems with this assertion are many, beginning first with Wells Fargo’s own publication confirming its policy of discrimination. In its Environmental and Social Risk Management Framework published in 2022, Wells Fargo outlines its then-new ESRM policy, which specifically targets “{t]hose making, selling, or distributing arms or armaments that require licensing”. Wells Fargo’s ESRM Framework further explains: We conduct additional environmental and social due diligence on clients who manufacture, distribute, or sell arms and armaments. Through this due diligence, we assess various factors which may include relevant licensing and regulatory compliance, types of product offerings, operating procedures, reputation risk incidents, human rights issues, relevant international compliance, and implementation of risk mitigation practices

Who would expect WellsFargo, of all people, to just straight-up lie to regulators and customers, in order to receive material benefits?... Uh, other than anyone who was paying attention in 2016.

Is the problem here that Ken Paxton is insufficiently prone to using state power for political ends? That Texas does not have conservative legal actors or groups? That some review at some level would prevent the state from enforcing this law, after decades of heavily-enforced policy by other states? I would perhaps believe that such regulations only operate with a large supply of inside-industry whistleblowers, except this example is visible to the naked eye, and many left-leaning equivalents have hit fields facing as or more extreme political filtering against them.

The cynical answer’s that quantity can be a quality all of its own, and one made easier when it's other people's money. As a result, a government hoping to use this pressure must be willing to risk serious harm to its own citizens.

(But, again, Ken Paxton.)

The more cynical option is that it’s a paper tiger; the threat has no value in this context but to make a group Harvel Their Greengrocer, and that only to the extent writing the paperwork is cheaper and easier than defying the law outright. But whether those reasons are specific to progressive goals or universal, that’s a lesson one would hope people were in less a hurry to teach.

Ugh, and of course he doesn't actually have citations for his claims there. Thanks for at least pointing the direction out.

IANAL but my one quibble is that the ruling that they don't have to do cost/benefit analysis is from 1981, and since then we had Clinton's EO in 1993 that I think does require them to do that.

EO 12866 isn't externally enforceable, and to the extent it 'requires' agencies to evaluate costs, that ends up being just that :

Each agency shall assess both the costs and the benefits of the intended regulation and, recognizing that some costs and benefits are difficult to quantify, propose or adopt a regulation only upon a reasoned determination that the benefits of the intended regulation justify its costs.

This is interesting, but it's a very far cry from Mendeloff's insistence that only the "lowest feasible level" is allowed, and indeed at its time it was supposed to be about reducing the often-steep overregulation that other agencies had invoked. (It also sets a fairly speedy timeline that agencies are supposed to meet, and if you want to have a laugh some day compare it to their actual movement rate.)

More importantly, does any of this refute the broader argument about all the added layers of procedural and analytic requirements that all three of the people interviewed cited? This seems like a separate measure from where their authority actually ends that would add a time burden rather than a legal burden.

My objection is less that Mendeloff claims that there is some increased time burden from review, and more that he claims that there's a process that only allows a very narrow band of regulation such that this time burden must be exceedingly long, outside the scope of a single OSHA director's run, and (implicitly) that it requires such resources and focus that OSHA can not do these things in parallel. And that's not really the case, in no small part because that first step falters.

((And his own piece makes clear that he's really just after harsher limits than can be demonstrated in evidence: "What changes might help? For health standards, change the law to allow lower exposure limits based on lesser evidence when the reduction is moderate." Which is just open season for OSHA to make up numbers.))

Mendeloff, in other works, often points to benzene regulations, and that's not unreasonable given that OSHA spent nearly twenty years on it. But if you look at the timeline, the overwhelming majority of this was not the regulatory overhead side, nor the OSHA-specific work of coordinating with industry to determine feasibility, but trying to gather data to support their new and stringent standard being so low. Almost all of the long lead time occurs because OSHA wants to set standards at the bleeding edge where data was not yet present.

And that might not even be wrong as a policy decision, since at least ideally clear risks would be handled by industry practices or by other regulations. But it drastically changes both the calculus of what revisions would be necessary, and what Mendeloff is asking for.

That's funny if true (though I'm not finding any obvious evidence supporting it, and it'd be kinda disappointing for a chief of staff who can't delegate for a vacation), but...

Do you know who else was a chief executive always proposing crazy schemes, who had to be constantly managed by his staff, and who had awful hair and little respect for individual rights?

Sorry for the snark, but that, more than the policy being bad, or some in vino moron veritas, or even unconstitutional, is a good bit of what I'm getting riled up about, and have been for a while. There could perhaps be reasons to set certain political actions away from personal liability, or to make them consistently available, but instead we're finding increasing amounts of society insistent on 'for my enemies, the law' as a bedrock principle. Worse than even that, we're simultaneously telling people that their 'betters' can play stupid games with human rights with no personal risk, and they must violate the law at significant risk to challenge it.

That's a little complicated. The cops up western Massachusetts or upstate New York don't religiously enforce the laws. If you stop to piss in Albany or live in New Jersey, they will absolutely love to come down on a rando like a stack of bricks. Gets their numbers up, no one that matters is gonna complain, and it's not like a law-abiding gun owner is going to resist arrest or shoot back, right?

At least in SFFA v. Harvard, the underlying complaint requested :

(a) A declaratory judgment, pursuant to the Declaratory Judgment Act, 28 U.S.C. § 2201, from the Court that Harvard’s admissions policies and procedures violate Title VI of the Civil Rights Act of 1964, 42 U.S.C. § 2000d et seq.;

(b) A declaratory judgment, pursuant to the Declaratory Judgment Act, 28 U.S.C. § 2201, from the Court that any use of race or ethnicity in the educational setting violates the Fourteenth Amendment and Title VI of the Civil Rights Act of 1964, 42 U.S.C. § 2000d et seq.;

(c) A permanent injunction prohibiting Harvard from using race as a factor in future undergraduate admissions decisions;

(d) A permanent injunction requiring Harvard to conduct all admissions in a manner that does not permit those engaged in the decisional process to be aware of or learn the race or ethnicity of any applicant for admission;

(e) Attorneys’ fees and costs pursuant to 42 U.S.C. § 1988 and any other applicable legal authority; and

(f) All other relief this Court finds appropriate and just.

SCOTUS generally does not answer all questions in a trial (barring a few rare situations where it is the court of first resort); it only resolves questions of law that were appealed to it and the court granted cert. Because questions of law related to attorneys' fees are very settled, that wasn't at question in the SCOTUS case. Instead, this was determined after SCOTUS vacated previous decisions and remanded to lower courts, which found just under 50k USD in costs. We won't know about attorneys fees for a while yet, because the district court gave an extension to October 27th and defendants almost always contest it (you can watch here for updates), but I'd expect that they'll do better than Clement and Murphy in my last post.

So in that sense, SFFA didn't get cash because they didn't ask. But that just kicks the can down the road to why they didn't ask? The Title VI doesn't explicitly authorize private rights of action at all, but the courts have generally allowed compensatory (though not punitive) damages. Some of the why's for legal strategy reasons -- SFFA knew they had an uphill battle without also getting into debates on how much access to Harvard is worth -- but there's also a broader logistics problem.

Courts can issue preliminary injunctions to prevent irreparable harm. And harms that can be compensated are repairable, by definition.

((There are a few exceptions-in-everything-but-name around "dignity" harms, but gfl bringing that here.))

In most cases, this makes sense! But it's a bit of a problem for a case like this one, because Harvard (and other schools) demonstrably care more about keeping The Wrong Sorts Out than the cash, and virtually every case will exceed the length of time that someone can wait to get into college. So SFFA was wagering for future preliminary injunctions in other cases over the (often trivial) compensatory damages in this one.

((In practice, they've lost that wager.))

(Though I can’t find the original text of his letter anywhere…)

There's a copy here.

It leaves me wishing there was a more obvious feedback mechanism for an elected official to be punished for flaunting the rules. Grisham ought to be staking something, anything, on her orders’ constitutionality.

I think my frustration is more that there are obvious feedback mechanisms. The state is one of few that allows citizen grand juries to indict her under, New Mexico has blocked qualified immunity in 'most' civil cases and has a few relevant state torts, and federally speaking there's a wide array of laws that could apply. Legislators could call a special session next week and impeach or, if they wanted to be soft-handed, 'just' cut down the NM Governor's emergency powers, including with warnings that they'll impeach next time if she doesn't knock it off. But being existent doesn't make it accessible: to be accessible, some nontrivial number of state legislators or courts or federal prosecutors would have to take things seriously even when someone on their side does it.

And for the most part, suspending part of the constitution just doesn't hit that mark. And while the Second Amendment makes that more clear than most cases, it's not like this is new or even limited to the United States. As much as Kulak might want to pray otherwise, Canada's flirtations and more importantly clear acceptance of the same is plain as day. The United Kingdom, to what limited extent Brits ever had rights to begin with, is running roughshod through the problems as well. There are mechanisms to punish overreach, they're just not swords that cut both ways in any seriously evenhanded sense.

Did TracingWoodgrains post that anywhere other than Twitter?

He mentioned an intent to post on his normal blog (presumably substack) eventually, though I've not seen it there or at theschism yet.

I tend to think the Long March theory is oversold, but this is a much more defensible version.

I think it's more defensible as a description of the scope of the problem, but I think its model of the cause goes one or two steps too short.

Some updates from New Mexico since two weeks ago.

Firstly, the court ruled on requests for a temporary restraining order, most pertinently that:

... Defendants New Mexico Governor Michelle Lujan Grisham, New Mexico Department Secretary Patrick M. Allen, New Mexico Department of Public Safety Jason R. Bowie, Chief of the New Mexico State Police and any other New Mexico officials (“Defendants”) are ENJOINED from applying, enforcing, or attempting to enforce, either criminally or civilly, Section (1) of the New Mexico Department of Health’s “Public Health Emergency Order Imposing Temporary Firearm Restrictions, Drug Monitoring and Other Public Safety Measures” (“PHO”) published on September 8, 2023, which reads:

(1) No person, other than a law enforcement officer or licensed security officer, shall possess a firearm, as defined in NMSA 1978, Section 30-7-4.1, either openly or concealed [within complex metric that means Bernallio County]...

In addition, Defendants are ENJOINED from applying, enforcing, or attempting to enforce, either criminally or civilly, Section (4) of the New Mexico Department of Health’s “Public Health Emergency Order Imposing Temporary Firearm Restrictions, Drug Monitoring and Other Public Safety Measures” to the extent it imposes additional restrictions on the carrying or possession of firearms that were not already in place prior to its issuance.

The next hearing, for a preliminary injunction, was originally scheduled for October 3rd, three days before the initial state of emergency was scheduled to end, though I'd expect that gets delayed. How did the governor respond?

No person, other than a law enforcement officer or licensed security officer, shall possess a firearm, as defined in NMSA 1978, Section 30-7-4.1, either openly or concealed in public parks or playgrounds, or other public areas provided for children to play [within complex metric that means Bernallio County]...

It's not terribly clear how this will work, either as matter of enforcement or of law. I'd say that she's trying to maneuver for mootness and standing challenges to the lawsuit, but this is still unconstitutional under Bruen and the state constitution, the loose definition raises serious due process concerns, and it's not even very likely that the state's public emergency law permits it even outside of the right to bear arms problems. This revision to the emergency order can't or at least shouldn't avoid the TRO, and were it a right-wing effort it'd likely just get the judge mad; as it is, the Biden appointee sounded just disappointed during the initial hearing.

Nor, on the other side, have I seen any reports of the video-driven Grisham enforcement had claimed to be bringing during initial protests. On the other hand, even while enjoined anyone who wants to carry needs to evaluate whether they're willing to become a poster child for today's constitutional challenge.

What sort of fallout is Governor Grisham looking at? KOAT7 has a wonderful quote from one of the state politicians:

"People need to realize this is the first time in New Mexico history that a governor could be impeached," State Rep. John Block said.

That is somewhat undermined by reality: No, they don't, because no, she can't.

There's only been one successful legislature-initiated special session in New Mexico history, and its context (responding to a budget's veto) made it far easier to coordinate on top of the far simpler political calculus (the final budget vote passed 90%+ in both houses). The paper gives a single federal Democrat saying he'd be willing to vote yes to condemn Grisham, should it reach the floor of Congress, but the same man voted against considering the resolution, which failed without a single Dem yes, which isn't quite the same as a vote against the resolution (because it was mixed with two other process matters) but makes for awkward bedmates. The Santa Fe New Mexican reports that the state's congressional Democratic party's official position is against a special session or impeachment.

It ain't happening, bruh.

There's been a bit of embarrassment from state politicians and police pushing back -- the state AG, another Dem, did not defend the executive order -- which, fair, kudos. Not the most significant kudos, but worth mentioning.

What about that shooting that motivated this whole thing? NBC reports:

A third arrest was made Friday in connection with a shooting outside an Albuquerque baseball stadium that killed an 11-year-old boy and prompted the New Mexico governor to issue a controversial gun ban. Albuquerque police took Daniel Gomez, 26, into custody a day after two other men were identified as suspects. Police didn’t immediately release further details about Gomez’s arrest.

Romero was already wanted for failing to appear in court in connection with alleged drug dealing, Medina said. Garley happened to be in custody when he was arrested in connection with the killing. He had been stopped by state police on Sept. 13 while returning from Arizona and authorities found a gun and about 100,000 fentanyl tablets in the car, state Police Chief W. Troy Weisler said at the news conference.

Police alleged that the men, both reputed gang members, pulled up in a car and attacked the pickup truck that was leaving the minor league game at Isotopes Stadium.

I haven't been able to find any records showing their CCW permits being pulled. Or that they had CCW permits. For some reason.

Apropos of nothing, a couple other interesting notes in firearms law :

The New York State Police will pay $447,700 to the New York State Rifle & Pistol Association in attorneys’ fees and costs after the US Supreme Court ruled that refusing to grant citizens the right to carry a concealed handgun for self defense violates the Second Amendment. The state National Rifle Assocation chapter had asked for $1,235,567 in fees and costs after arguing that the complexity of Kirkland & Ellis LLP’s work in N.Y. State Rifle & Pistol Ass’n v. Bruen warranted compensation commensurate with the quality and effort of counsel.

On one hand, great work if you can get it. On the other hand, Paul Clement and Erin Murphy, the men who lead Bruen, no longer can, and it's just over half of their old law firm's typical billing rate. The reasoning, such as it is:

Plaintiffs failed to show that this was “a case requiring special expertise [and] that no in-district counsel possessed such expertise,” or that local counsel “were unwilling or unable to take the case,”.. .Plaintiffs’ arguments in support of out-of-district rates are limited to pointing to Plaintiffs’ success at the Supreme Court and the conclusory statements that “few in-district attorneys regularly practice Second Amendment litigation and even fewer practice this constitutional litigation on behalf of plaintiffs against government entities; . . . even fewer in-district attorneys have briefed or argued Second Amendment cases before the Second Circuit and the Supreme Court, like the attorneys Plaintiff selected; and . . . no in-district attorneys have the experience necessary for Plaintiffs’ challenge.”

I expect Clement and Murphy won't exactly cry all the way to the bank, to whatever extent their biglaw contracts covered this sort of case, but neither will it be a big war chest for their Second-Amendment-focused law firm, to whatever extent NYSPRA wasn't forking over those fees well before this point and is down some pretty pennies. Which matters quite a bit given NYSRPA was better titled NYSRPA II, and NYSRPA I was filed in 20_13_. Nor will it serve a particularly strong disincentive to avoid losing future court cases, or, for a matter where New York state might actually be persuadable, pad future court battles with beggaring levels of necessary paperwork to beggar their challengers.

At least they won, right? Well... Back in response to the NYSPRA II decision at the old place, a couple posters had different perspectives (with some format edits for brevity) :


Yes, the jursdictions which want to ban guns will simply claim historical justification, and the lower courts all the way up to the courts of appeals will pretend to believe them ("a bee is a fish"), and nothing will change. I expect New York's list of "sensitive locations" to include : Banks including ATM lobbies, Subways and other public transportation, taxis and other licensed transportation, All public buildings, All premises licensed to serve alcohol, Maybe all public parks.

You won't be able to practically carry legally in NYC.


Many, and it would require a whole-of-government sort of rebellion to engage in that level of open defiance. Even if Governor Hochul attempted to enforce the law, state judges would not follow such an instruction, especially as against an explicit binding precedent. I can go through the mechanisms if you like, but the idea that NY would openly defy this ruling is an absolute pipe dream for a few radical accelerationists on either side, and will not happen.

And neither is wrong, and indeed excepting a few quibbles Huadpe's later post is a good overview of procedural protections. No one planted their feet at the door of a school house, so it's not true Massive Resistance, it's just sparking legal warfare. On the other hand, if Nybbler had a time machine or a crystal ball, his description of the Bruen response bill and its reception in the judiciary would have been broader, not more narrow. And on those broader points, the state has been playing with mootness and standing to avoid the obvious revelation that it still does exactly what Bruen says the state may not.

And that's just the explicit stuff. One thing neither Nybbler's list nor I expected:

The NYPD approved fewer new licenses to people requesting permits to carry or keep firearms in their homes or businesses in 2022 than the year prior, data obtained by THE CITY shows — despite the 2022 U.S. Supreme Court ruling that found a key provision of the state’s long-standing gun control law violated the Second Amendment right to bear arms.

In 2021, the NYPD — which vets firearm permits — received 4,663 applications and approved 2,591 of them, about 56%, all under the stricter “proper cause” standard the Supreme Court struck down last year. That standard required gun owners in New York to show “proper cause” in order to receive a permit to carry a weapon, but the court said licenses should be granted by default unless there was a specific reason to deny an applicant.

In 2022, the NYPD saw an increased number of new applications — 7,260 — but approved just 1,550, or 21%, even though applications filed in the second half of that year no longer had to meet the “proper cause” standard where applicants had to make an affirmative case for why they needed a license.

It's far from alone, here. Hawaii's response bill has repeated many of the same steps and components, California was just weird for waiting til this year before informing people that their right to carry a firearm is limited to sidewalks. Dick Heller from the 2008 Heller v. DC case is still working on being allowed to own the semiautomatic pistol and magazine he started that whole matter on. Defense Distributed is still fighting its mess of a case.

When I've made motions around this before, people have rejoined that lawsuits are a process: winning a case, no matter how big, does not mean winning everything forever and hearing the lamentations of your opponent's women. There have indeed been where state defiance has lead to significant costs. I don't mean to suggest that the court's never work.

But at the same time, it's hard to even find a pretense that this faces the same level of legal opprobrium or cynicism that favored rights get. Nor is it limited to guns. There's been a lot of Recognition that the aftermath of SFFA v. Harvard would result in a tremendous change in legal discrimination as teams of lawyers would be going through every admissions process in the country, and that's not wrong! But they've done so to hilariously transparent efforts. And there are lesser and lesser-known variants on a pretty wide variety of topics. There's no conservative equivalent that leads a country-wide and overnight shakeup, or even a state-level one, even in fairly egregious matters.

There's an argument that this shows what Really Matters is The Institutions, and while that might feel a little be retroactively defined by whatever conservatives aren't doing or by what they'd face massive discrimination should they wear their hearts on their sleeves -- can I point to Clement and Murphy again, and that even if you had their skills you'd be a fool to think you could follow in their paths -- it's not exactly wrong.

But then we're back to denouement of the post two weeks ago, but more so, and much broader.

501(c)s also have to have a non-profit board, with a minimum of three people. The exact rules for how many must be 'independent' and what that means are complicated as hell, but it adds to the issue.

Was it just because of the magic worlds "crypto" and "blockchain"? What the hell was supposed to be going on here?

In theory, it was supposed to be an authentication schema that avoided a lot of present authentication issues.

In certain circles, there's a major problem with digital art, in that it's very hard to prove that a specific piece is 'yours' or was 'commissioned by' you, in the way that possessing a physical piece of traditional art does. Not just in the sense that someone else could take a picture or save-to-hardrive and repost, but they could readily do so and pretend you were faking. You could post it onto a website, but not only does that invite someone to right-click-save, it's only useful so long as the website is active with your media on it, and only to the extent the timestamps there are more authoritative than those from a random self-host who could fake them. Having process files like version'd photoshop files or sketch layers largely just cycles back a level.

This isn't a hugely valuable things in terms of productivity or world-changing ramifications, but for people who care a lot about digital art, it can be really annoying. Even at casual levels, there are Problems -- a lot of bigger-name furries find themselves impersonated on sites like F-list by people who are just trying to leverage their art, which doesn't sound that bad until you stumble on a profile claiming to be you and into some stuff. At more professional spheres, art impersonation is a big deal.

By having some strongly delineated identifier showing ownership, with a good way to transfer it, which is authoritative but separate from an authority, could be useful.

In practice, it got dominated by grifters early on, as with a good many other crypto crap did -- just like a lot of 'decentralized' crypto DNS ended up running through a couple oracle servers, a lot of NFT implementations did that and validated the url (why?) instead of some meaningful identifier for the image, and that's when they weren't just a glorified pump-and-dump. I think there are some technical issues for part of that, but there was also just some inexplicably high dollar values going around very early on in the tech's development. There's some charitable explanations possible, like zero-index-rate behaviors or tech-dumb investors huffing farts, but I expect a lot of people saw rumors of conventional modern art as money-laundering and thought this would be the next thing in that field.

Optimistically, Air Traffic Controller's Blame. We had great plans, great hopes, and great dreams; put our future on the line, and instead:

Now the road laid out before me is in flames

And the bridges that I've crossed have collapsed

And the vultures they are circling overhead

They're reminding me of choices from my past

It's not just misfortune or bad luck or our moral faults, as much as pride plays a repeated place: the song isn't a Tragedy. Our choices were bad, our plans faulty, our hard work not enough. Our 'home' wasn't our place, our lessons wasted. The rules we followed brought us to this.

And in the process:

This time you're free

I know it's hard to believe

After them days and nights awake and feeling lost, you're losing it

Well, if everything you learned before today was just a waste

Think of everyone you met along the way and all you've faced

Boy, you've won


The shallow read for the title is "Don't Blame" yourself for your own failures, and as selfish as that seems it's a useful rejoinder to depressive tendencies, but I think that misses the deeper answer:

Don't blame

Get on your feet

Enough "poor me"

If you got time to bitch and whine

Well, there's still time to try again

That is, there's more to this country than The Politics of Grievance; picking yourself up, dusting yourself off, and trying again matters more than pointing fingers at who is at fault. You're not dead yet. It's not the best description of the current politics of this country, but then again I'm not sure the Star-Spangled Banner was a great description of the politics of 1812.

As what the country wants to be, should be, though... there's a reason that this theme's been resonant in a lot of recent works: I point to FFXIV or Chuubo's for doing it especially well, but they're far from unusual in touching it.

I'll caution that a lot of the claims among advocates and activists start at misleading for their very best, here. For example:

OSHA can regulate only after a complex process of finding “significant risk” and economic “feasibility,” and then is constrained to set standards at “the lowest feasible level.” As a result, some health standards have been costly compared to their effects. The longer process tended to make it less likely that any rulemaking could be begun and completed within the term of any OSHA director.

I'm not entirely sure where this quote's coming from -- it's not present in Mendeloff's better-known "Regulatory Reform and OSHA Policy" nor his current RAND page -- but Mendeloff has spent decades making a variants of it, that OSHA's hands are tied to extremely narrow scopes of allowed regulation. Yet looking at the caselaw makes it obvious this isn't the case: OSHA has explicitly been delegated the power to make any cost-benefit tradeoff, so long as OSHA can provide evidence from a "credible source" of significant risk and can show that the regulations are at all feasible, even if the technology to implement them does not currently exist. You can go back to Hodgson and clearly see the courts unwilling and unable to require OSHA to issue more strenuous standards because someone claimed they were possible.

The only serious restriction on OSHA regulations are that they can not be impossible to implement nor can they set thresholds on what is possible rather than what is dangerous. And it's that last bit that's driven OSHA's plodding pace post-1980. Not that OSHA must regulate to the hilt, but that its employees and administrators want to -- and because so much voluntary and other-regulatory standards already cover other exposures, are only relevant when -- regulate to the hilt, and that's the place where it's hardest to prove anything. In the benzene case, OSHA had been trying to drop the maximum allowed exposure limit by and order of magnitude with zero studies showing significant health risks in between those levels but instead a rather unclear understanding of what safety factors mean.

Mendeloff repeatedly points to the far-greater count of exposure limit changes from the American Conference of Governmental Industrial Hygienists, who to be fair are very much in favor of setting thresholds very quickly to extremely low values! But that doesn't tell us terribly much about what the correct exposure limits are, or even good policy.

Mercatus Center and CATO claim (without a source) that Quebec funds its equivalent workplace safety agency four times more per staff and gets similar results. I glanced at a few other countries: in France and Britain they both spend less than us; the UK gets much better results and France gets much worse, so make of that what you will! I just divided budgets by staff whereas the Quebec comparison is supposedly measuring “dollars spent on workplace prevention”, which I don’t know how to check for other agencies, but I could easily believe their numbers are better than ours because we waste a ton on administration or paperwork.

It's... probably worth pointing out that a little over a dozen states have separately-funded OSHA-approved State Plans doing their enforcement.

In this case, people were highlighting him over nine months ago, and I think there was one or two predicting this particular prat would get either no charges or a cushy deal back before the move from reddit.

There are some plausible innocent explanations -- this story is about a judge complaining that the DoJ was being too lenient with sentencing requests of other people, albeit none who'd been as high-profile, and Epps genuinely has been extremely cooperative with progressive efforts since -- but random chance isn't really one. And those kinder explanations are hard to isolate from less good ones with the available information.

I don't know how to tell you this but there's a difference between a government passing a law imposing criminal or civil penalties on someone and them clicking the equivalent of a Super Report button.

That's not really my point; I can instead point to environments where Mere Polite Requests were obviously immediate jawboning, and were Masnick's twitter still open I could show more clear examples. But look at the articles and compare the dramatic differences in charity or even mere honesty in describing them -- most evidently the Super Report button instead ended up being weekly meetings or dedicated fast-response systems, but also the NRA-backed bill being described in far more maximalist terms than even the already-aggressive read by the newspaper he linked.

The article specifically notes that Twitter did not comply with a majority of the government's unofficial requests.

And Masnick is a two-faced prick, so while it claims that, instead it points to this comparison of official requests -- primarily legal demands like subpeonas and court orders, for mere double-digit (and often low double-digit) number removal requests. Aka, it tells us nothing about unofficial requests to take down accounts, which (again in contrast to Masnick's claims) ended up being thousands of accounts passed by spreadsheet and face-to-face meetings, not just a slightly more polished version of the Report Button you or I could use.

Masnick does not know the relative proportion of those unofficial requests that resulted in a removal. We don't have statistics, and given the heavy influence Baker had at the building they may not exist anymore. The selections Taibbi brought give 60%-85%, but Taibbi doesn't claim to have done a meaningful statistical analysis; he just provides a single e-mail that would break Twitter's transparency report for that time block. If Masnick had planted his flag on the possibility of consistent pushback, I'd not have highlighted that as severely or been as critical of him generally (although I wouldn't be surprised were his 'consistent' pushback to include one-offs that still resulted in account bans).

But he instead makes ludicrously strong claims with clearly wrong backing, and only ever one way.

Have you been on Twitter? Why would I think that? I'm sorry that advertisers and Twitter users don't share your ratings of what things are bad but their opinions are the ones that matter for Twitter's continued viability as a business.

I think you're vastly overestimating the popularity of guillotine twitter or of journalists, or of the relative proportion of the site's users or advertising targets those two groups or their sympathizers make up.

It's important that if you're going to allege the government pressured Twitter about the laptop story and that was the cause of their suppression people are going to want, like, evidence. So far none has been forthcoming. The best I've seen is some general warnings to Twitter about possible disinformation regarding Joe/Hunter from Russia.

Well, no. Even before the Twitter Files, Yoel Fucking Roth declared that :

Since 2018, I have had regular meetings with the Office of the Director of National Intelligence, the Department of Homeland Security, the FBI, and industry peers regarding election security.

During these weekly meetings, the federal law enforcement agencies communicated that they expected "hack-and-leak operations" by state actors might occur in the period shortly before the 2020 presidential election, likely in October. I was told in these meetings that the intelligence community expected that individuals associated with political campaigns would be subject to hacking attacks and that material obtained through those hacking attacks would likely be disseminated over social media platforms, including Twitter. These expectations of hack-and-leak operations were discussed throughout 2020. I also learned in these meetings that there were rumors that a hack-and-leak operation would involve Hunter Biden.

That is law enforcement specifically mentioning a hack-and-leak operation involving Hunter Biden in October of 2020, which is a good deal less general than "possible disinformation regarding Joe/Hunter from Russia".

((We've since learned that a 'totally private institution' funded in part by the State Department ran an exercise I'd call impressively prescient -- were it not for the FBI having already taken possession of Hunter Biden's laptop and corresponding documents months before the exercise was run.))

There's no clear "you must censor this or go to jail" e-mail, fair. There is 'just' all of this very precise concern about this particular topic, sent while the FBI and DHS were making claims about intransigent social media groups being allied with foreign governments, and while many politicians were talking up CDA230 modifications for those who didn't cooperate.

But Klobuchar wasn't sending the letter, so it's not really jawboning, it's just still a small coordinated groupthink with shared ideological capture.

I think the ADL's problem with Musk becomes much more obvious phrased as "He made frivolous threats they had committed torts against him."

Again, the ADL started calling Twitter's advertisers about Musk publicly (as in through newspapers) in November of last year, Musk claims that they did so privately the week he closed on the company and had called him saying they would do so if he did not continue certain parts of the Trust and Safety paradigm before that. Unless he or they have a time machine, the ADL's problem can not have started this week.

When Masnick is discussing Twitter protecting people's first amendment rights he doesn't mean they didn't ban people (because banning people doesn't implicate their first amendment rights) he means they resisted subpoenas from the government demanding they de-anonymize it's critics, which does implicate their first amendment rights.

And this dichotomy is exactly what I'm criticizing. Masnick's entire shtick is to prevaricate between officially state-driven things that could be anywhere near the First Amendment whenever the censorship is something he opposes (see this) no matter how regulated speech is in that sphere otherwise, and then raising incredibly exacting standards for what counts as government action when it's something he doesn't care about (see for example this post conflating double-digit legal demands with the literally thousands of 'unofficial requests' from the government.).

The piece is not about responding to criticisms of Twitter...

The piece is literally titled 'Hey Elon: Let Me Help You Speed Run The Content Moderation Learning Curve' and is tagged Elon Musk. And you're right, but it just makes him an asshole, and your post a non-sequitur to drop in.

What further elaboration is required? It turns out people don't like to spend time on a site where they are regularly called slurs! Advertisers think it damages their brand when their advertisements appear next to hate speech.

Which is funny, because you'd think that people would be at least somewhat opposed to slurs that touched on them, and instead Twitter and Advertisers supposedly found tweeting "Learn To Code" at a handful of bargain-basement 'journalists' worse than having ads sandwiched between "KillAllMen" and photoshopped decapitations of a certain politician. And it was always like that.

Is this concept complicated? Masnick, in fact, has a whole article about Twitter and Hunter Biden's laptop.

Indeed, and he quickly papered over any potential problem by giving his friends at Twitter the most charitable possible explanations and possible facts, and then when those assumptions came false retreated time and time again, often in hilariously misleading ways. That link rests heavily on people not finding yet that any evidence of government pressure, and then despite all of the later releases his information since his comments never quite get around to revisiting the matter except to provide increasingly circumscribed reasons This Does Count.

What is the tort the ADL committed to constitute the "tortious" part of tortious interference?

The tort is tortious interference, sometimes called intentional interference with contractual relations. It's not an add-on to some other tort: it's trying to induce people to breach binding contracts with a specific person. The exact rule varies by state, but it can cover behavior that would not be tortious in itself (in some rare cases, not applicable here, even by negligence), typically requiring either malice or that the act be done without legal justification.

See the Third Restatement of Torts, which (while trying to scale down the tort from past version's array of privileges!) listed :

(a) the defendant acted for the purpose of appropriating the benefits of the plaintiff's contract; or (b) the defendant's conduct constituted an independent and intentional legal wrong; or (c) the defendant engaged in the conduct for the sole purpose of injuring the plaintiff.

(emphasis added, note that many states still use far more expansive caselaw)

Now, that legal justification includes a wide First Amendment exception for interference that is truthful or at least opinion (possibly with some modulos for private information). And courts have been somewhat wishy-washy about "sole purpose of injuring the plaintiff". But this is not an open season for any statement to be immune: see SpamHaus v. DatabaseUSA. Musk alleges that they have separately made private claims to advertisers that are contradicted by widely available evidence. He could well be wrong or lying -- there's a reason I use "alleges" and "if true!"

((I don't think Musk will actually bring this case, or be successful if he does, and it's certainly not a multi-billion and maybe not even multi-million dollar tort. But that's more because it'd be worth pennies on the legal fee dollar even in the off chance he wins, and the standards for when a claim is an opinion of undisclosed facts or where it's just an opinion mumblemumble are an absolute mess. In addition to the obvious reputational risks.))

I am pretty sure they're his foe now because he goes around promoting open anti-semites like Keith Woods.

A bad like or reply this month can be strong evidence that Musk needs to lay off the cocaine, but it can't be the cause for a campaign to Twitter advertisers that's over a year old.

((In addition to the other inconsistency.))

How did our long and rich history of censorship amount to abuse, and what were the concrete negative consequences of that abuse?

As a non-exhaustive list:

  • The Sedition Act was near-instantly turned into a political tool, including of jailing dissenters and political opponents, including with charges related to writings predating the Act's enactment. In addition to not doing much good about the whole War With Napoleon thing, the statute legitimized a lot of internal revolutionary speech and literal rebellions, and badly damaged interstate comity; while not the sole cause of current red-hot judiciary problems, it's very much the first bite at the fruit.

  • Comstock personally used the law to charge sufferagettes in response to publishing an alleged affair by one of Comstock's . Leaving aside the object-level debates for his censorship itself being bad, the expansive and often quixotic efforts undermined much of his more conventional anti-fraud and anti-spam efforts, was an absolute mess when it came to actual STDs, and often publicized and promoted the very works he was opposing. (Also, from a social perspective, he also inspired a certain J. Edgar Hoover.)

  • McCarthyism blurred the lines between communist party Russian stooge, 'mere' philosophical sympathizer, and People Who Annoyed McCarthy well before the Army inquiries. In doing so, he both destroyed future anti-Soviet-espionage efforts and provided cover for tankie academics for decades.

Of course, the more morbid question is when did it have a negative impact on the censors; telling people that they'll win but burn down society invites a lot of Joker cosplay. The Adams administration didn't win reelection, but that was probably off the table before the Adams administration first won the presidency; Adams himself nor the Sedition Act's authors were prosecuted. Comstock made his keep off of those he fined and punished. McCarthy died abandoned, so there's that one I guess?

Masnick's a two-faced prick on this particular topic among no shortage of others, and that post there could not be more of a strawman were the characters named Simplicio and Sagredo, but to engage with this far more seriously than it deserves:

  • The criticism of pre-Musk Twitter was never that it banned CSAM or followed copyright law, Masnick knows that, you know that, I know that, the dog knows that.
  • The actual criticisms are either glossed over ("level three" is hilariously short) or not engaged with at all (the godsdamned FBI called them and told them repeatedly not to run stories about Hunter Biden's laptop, while knowing that Hunter Biden's laptop had been out there, and I notice Masnick seems to have missed any mention about it).
  • Quite a lot of those "legal, financial, and social pressures" are just shared ideological capture, or only taken seriously because of shared ideological capture. There could be a plausible argument otherwise if pre-Musk Twitter's censorship focused on commonly-agreed slurs or clear falsity or other bad behaviors, but in practice for all that Twitter moderation had also always been arbitrary and inconsistent, it overwhelmingly ended up in a left-wing mode, encouraged and legitimized by a fairly small number of (overwhelmingly left-wing) partners that promoted these standards to both Twitter and its advertisers (and sometimes regulators!).

The ADL is Musk's current focus, simply because (he alleges) that they've directly contacted his advertising partners before he even took ownership and a lot of what he's described (if true!) is very close to playing bingo with tortuous interference with contract. But it's not like the SPLC is any less "shared ideological capture", and was heavily involved in moderation decisions at length, including far away from SPLC's supposed domain expertise.

But the article linked in the post you linked mentions that 4% of the female population had a sexual experience with an animal, with much higher rates among certain sub-populations (particularly farmers).

Unfortunately, a lot of Kinsey's data and his redefinitions -- note that the writer says sexual experience rather than anything specific -- got blurred aggressively, in no small part by Kinsey himself. His actual data for women was far more restricted, with literally only one actual adult woman in thousands who had full coitus with an animal (a dog) in the sample for Sexual Behavior in the Human Female, with paeans to a few more who might not have been included to protect them legally, and a more significant but still sub-0.05% who'd 'received' oral.

The 4% number comes from rounding up his 3.6% for his "accumulated incidence" of all sexual contact, which explicitly included women who did not report any arousal from the contact. Of those, the overwhelming majority consisted of poking at an animal's genitals, or having ever had sexual fantasies or dreams about the topic; most only reported this happening once or twice in their lives.

any nitpicks are unlikely to remove the emotional damage of "there are attractive women who have fucked dogs but wouldn't touch you with a 10-foot-pole."

That's fair.

Until recently, Chinese mainland silicon was limited to much less precise fabrication approaches (eg, 50+nm) or limited to certain non-CPU/GPU products (Innotron's 19nm plant made RAM, period) or both (19nm isn't 7nm). Or they tried, and didn't work. Node size doesn't mean anything specific, but it's more predictive of power consumption and waste heat generation per op than it is of actual gate size, so it's very hard to get a certain amount of compute power in a given package without matching or exceeding a certain node threshold.

Because so much of modern industry and especially China's economic and surveillance engines were built around highly-efficient tech, this was presented a dilemma for any military (and some diplomatic) activities. If China did something other countries didn't like enough, they could cut off exports, and a lot of Chinese manufacturing and industry would be stuck tightening belts hard. In particular, this meant that a Chinese effort to take Taiwan faced a problem: the prize was getting TMSC's sub-5nm manufacturing capabilities, but even if China took the facilities intact -- a very hard thing to do -- they depend on a cross-world supply chain to keep running. If TMSC going down for a period means everybody-but-China is without new <7nm chips, that's a lot less concerning.

((Though the calculus still isn't obvious. There's a Wages of Destruction argument that even if your country's leadership was as ideologically blinkered as literally-Hitler, the country still goes to war on logistics, and China is not that ideologically blinkered and its logistics point to nearby oceans and the middle east and gfl on that last one. But I don't buy the Wages of Destruction argument completely.))

I don't think AI (or even chips in general) are the sole determining factor, but the manpower requirements for military adventurism or maintaining an occupation are dramatically lower with drone swarms and omnipresent facial recognition.