gattsuru's profile

gattsuru 7mo ago · Edited 7mo ago

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.

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gattsuru 9mo ago

Robbers Cave was the second run at the same experiment, run specifically because the first attempt had too much cooperation between the two 'teams', and this wasn't disclosed in Sherif's paper. Worse and perhaps more critically, the paper heavily concealed the extent Sherif (in the first experiment) and OJ Harvey (in Robbers Cave proper) actively manipulated the participants to make them more aggressive or be more affected by the aggression of other participants. It's not as severely a fake as, say, Stanford Prison, but Harvey was on-record as it being a script with an intended conclusion.

Milgram had a lot of information available suggesting that a significant number of his experiment subjects knew or claimed to know that the actor was acting, enough to overturn the conclusions, along with not actually holding to his claimed experimental protocol very consistently. Which is less severe and more borderline as 'faked', but (hopefully!) worse than all social science experiments.

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gattsuru 1yr ago · Edited 1yr ago

So, none of the readings complained about are required, and teachers are free, as required by Florida's "Stop WOKE Act" to assign readings on all sides of the issues in question.

This seems a little bit of a change in approach from the normal strict literalism you've been bringing recently. Stop WOKE does not require teachers to "assign readings on all sides of the issues", under the increasingly-reasonably-looking theory that progressives would consider their own racially-discriminatory texts as a legitimate side and conservative-leaning views (or classically anti-discriminatory ones!) as not. The relevant prong of the law is:

"It shall constitute discrimination on the basis of race, color, national origin, or sex under this section to subject any student or employee to training or instruction that espouses, promotes, advances, inculcates, or compels such student or employee to believe any of the following concepts:

Members of one race, color, national origin, or sex are morally superior to members of another race, color, national origin, or sex

A person, by virtue of his or her race, color, national origin, or sex is inherently racist, sexist, or oppressive, whether consciously or unconsciously.

A person's moral character or status as either privileged or oppressed is necessarily determined by his or her race, color, national origin, or sex.

Members of one race, color, national origin, or sex cannot and should not attempt to treat others without respect to race, color, national origin, or sex.

A person, by virtue of his or her race, color, national origin, or sex bears responsibility for, or should be discriminated against or receive adverse treatment because of, actions committed in the past by other members of the same race, color, national origin, or sex.243

A person, by virtue of his or her race, color, national origin, or sex should be discriminated against or receive adverse treatment to achieve diversity, equity, or inclusion.

A person, by virtue of his or her race, color, sex, or national origin, bears personal responsibility for and must feel guilt, anguish, or other forms of psychological distress because of actions, in which the person played no part, committed in the past by other members of the same race, color, national origin, or sex.

Such virtues as merit, excellence, hard work, fairness, neutrality, objectivity, and racial colorblindness are racist or sexist, or were created by members of a particular race, color, national origin, or sex to oppress members of another race, color, national origin, or sex."

((From a philosophical position I think this raises some serious free speech questions given that it is neither content- nor viewpoint-neutral, but from a legal one it'd just get smothered in the crib as government speech were it a progressive political program.))

Now, this statute does have one exception, but rather than a "all sides" one, it's :

Paragraph (a) may not be construed to prohibit discussion of the concepts listed therein as part of a larger course of training or instruction, provided such training or instruction is given in an objective manner without endorsement of the concepts.

Emphasis added. That is, it is neither sufficient nor necessary to cover "all sides", but instead a teacher must specifically avoid endorsement. There could be a fair argument that this syllabi could be customized in a way that matches this exception. Except, of course, you specifically admit:

"I have not looked closely at the course description for the AP class..."

Now, I'm not particularly interested in the question of whether this is ~~political propaganda~~ lacking rigor and requiring students to parrot a political viewpoint, because it's ~~a school project on a politically valiant topic what do you expect~~ the sort of question that immediately demands argument-by-definition whether this is happening and then, having admitted it, whether it's good. And there's a fair argument that this is not sufficiently precise enough to be a law, in that fun void-for-vagueness way (although, again, compare how government speech regs fair when used to further progressive political goals).

But it's a little hard to see that for this specific situation. A recommended text for "The Reparations Movement" is Coates' "The Case For Reparations". Even assuming that teachers could add a Sowellian counterargument, this remains an endorsement of racially discriminatory practices for the purpose of repairing the harms from actions committed in the past by other members of the same race or national origin (literally: "It is as though we have run up a credit-card bill and, having pledged to charge no more, remain befuddled that the balance does not disappear" and "Until we reckon with our compounding moral debts, America will never be whole", in case you thought fiscal conservatives had a monopoly on bad debt metaphors), and one that's very likely to be on the not-adjustable test.

((And in practice, there's a complex auditing system that goes on, here; I think you're vastly overstating the degrees of freedom a state has to modify the syllabi.))

It's physically possible to discuss the material without endorsing it (although whether such discussion would prepare students for an AP exam...), but do you really expect the average classroom to manage it? We can barely manage to teach Brave New World without people missing the blatant racism and classism for the feelies and drugs and free love. And it's not exactly alone, here.

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gattsuru 1yr ago · Edited 1yr ago

The Supreme Court has responded to a stay request in Yeshiva University v. YU Pride Alliance. The cases revolves around New York's Yeshiva University, a long-standing and very Orthodox Jewish university, which is facing civil suit under New York City's Human Rights Act, for refusing to recognize an internal LGBT alliance. After a summary judgement stage, the judge found in favor of Yu Pride Alliance, and ordered an injunction against Yeshiva to immediately recognize the Alliance and provide all support given to other clubs. Yeshiva appealed to the case to New York's confusingly-named Appellate Division, and requested a stay during appeal. This was denied, without explanation on August 23rd. Yeshiva then requested leave to appeal that denial of stay from both the Appellate Division and the even-more-confusing separate Court of Appeals; this was denied, again without explanation, on August 26th. Yeshiva filed an emergency appeal to SCOTUS on August 29th, arguing that with its time for club applications running from August 26th to September 12th, the likely timeline for state appeals -- October or November before trial, likely past the end of the school year for a decision -- make for irreparable harm.

While Justice Sotomayor issued a short administrative stay from the 9th to the 13th, SCOTUS ultimately punted, holding that Yeshiva could request an expedited appeal from the state, or try again after completion of all state-level appeals, if rejected. Of course, by that point, Yeshiva's then-established-and-recognized Pride Alliance will have a lot of extra weight on arguments regarding future stays. As YU Pride Alliance explicitly declares it purpose is to change hearts and minds, it is difficult to see that period not reflecting any compelled speech.

There are a number of more subtle issues.

Some of these are just obnoxious. There's a rather impressive silence from those who worried about the Texas Bounty Hunters bringing lawsuits with statutes putting every thumb possible on the scales, obviously. SlightlyLessHairyApe has suggested in the past (in supposedly less favorable circumstances!) that "Martinez is the decision in most danger of backsliding"; this refusal isn't any stronger evidence CLS v. Martinez is here to stay than the Texas Bounty Hunters legal cases evidence that Roe wasn't... but faint damns. The state judge ordering the stay is or was a member of the Lesbian and Gay Law Association for Greater New York, which is not the sort of thing that requires or even counsels recusal, anymore than a judge being an observant Jew might, but at least the sort of thing that would raise elevated interest in making the impartial read of the law as clear as possible.

((There's also some boring debates about the definition of 'irony'.))

One more usefully interesting matter reflects the text of the court's decision. The state law actually does contain an exemption for some religious educational organizations, specifically those "religious corporations incorporated under the education law"; Yeshiva is, however, incorporated as an "educational" corporation under the education law, likely in no small part so it can issue secular degrees:

The court finds that Yeshiva's educational function, evidenced by its ability to now confer many secular multi-disciplinary degrees, thus becamse Yeshiva's primary purpose. Even if Yeshiva still "prompted the study of Talmud", that does not necessarily make Yeshiva a religious corporation as that term was intended by the City Council when it enacted Section 8-102.

Those of you following other conversations here this week might have noticed that a city -- conveniently the same city! -- is in the middle of investigating whether Hasidic grade schools are providing sufficient education. Which wouldn't necessarily be covered by the current text of Administrative Code 8-102, which only mandates that organizations with over 400 members and taking in money be considered not-private unless proven otherwise. But the remaining exceptions are not just statutory but affected by a morass of regulatory and administrative decisions. And the statute has changed rapidly in the past: while Yeshiva changed its incorporation to the education law in 1967, an exception present at the time for "colleges and universities" was stripped by a 1991 City Council decision

A month ago I'd have called Hasidic fears of the corruptive nature of secular education paranoid. I still don't think NYC would, any time soon. I'm a good deal more limited in what foundation I can argue that. Hope that won't have negative ramifications!

Another is a continuing willingness by the courts to ignore what are, charitably, misleading filings. In this case, the YU Pride Alliance Opposition filing says, among other claims, that :

YU has also acknowledged it must comply with the Human Rights Law without raising First Amendment concerns on numerous occasions. For example, YU “concede[d] that it is subject to the City Human Rights Law” to the New York Court of Appeals in 2001. Levin v. Yeshiva Univ., 96 N.Y.2d 484, 491 (2001). It raised no First Amendment challenge to the application of the Human Rights Law in that case.

The paragraph that is pulled from reads :

Section 8-107(5)(a)(1) of the Administrative Code of the City of New York makes it an unlawful discriminatory practice to refuse housing accommodations to any person because of that person's "actual or perceived race, creed, color, national origin, gender, age, disability,sexual orientation, marital status, or alienage or citizenship status * * * " (emphasis supplied). At the outset, we note that this provision applies to those who provide public or private housing accommodations, and so Yeshiva's status as a private institution does not exempt it from the enactment. While denying its violation, Yeshiva concedes that it is subject to the City Human Rights Law. Plaintiffs, as members of a protected class, allege a violation of the New York City Human Rights Law, section 8-107(17), which creates a cause of action for "an unlawful discriminatory practice based upon disparate impact."

That is, Yeshiva conceded that it was subject to a specific different prong of the Human Rights Law, which Yeshiva did not claim to have religious objections to despite a (admittedly-limited) religious exemption where:

"Nothing contained in this section shall be construed to bar any religious or denominational institution or organization or any organization operated for charitable or educational purposes, which is operated, supervised or controlled by or in connection with a religious organization, from limiting employment or sales or rentals of housing accommodations or admission to or giving preference to persons of the same religion or denomination or from making such selection as is calculated by such organization to promote the religious principles for which it is established or maintained."

This isn't quite as bad as a certain state (New York again!) excising important words from referenced statutes, and then doing it again, or the CDC's famous "absent an unexpected change". But where lawyers are obligated to make the best arguments for their clients, they are also obligated to be fully honest in court filings, not merely in not-lying, but in representing the whole truth. I doubt this section had serious impact (or, frankly, that all of the justices even read it), but an inability to respond to or recognize these sort of tendentious filings do not encourage faith in even-handed access to the courts.

There is a phrase -- sometimes attributed, coincidentally, to Rabbis, elsewhere to Gladstone or Francis Bacon -- that 'justice delayed is justice denied'. It's possible that this decision is overturned at the state level, for the sort of reasons I and Alito both were too pessimistic in the aftermath of Fulton. Of course, if not resolved at the state level, SCOTUS review of the stay is unlikely before the end of the school semester; of the case, likely into 2026 or 2027. It's not hard to come up with examples of the costs of punting at such length. This case can, in many ways, be seen as the aftermath of Fulton's punt.

It's not quite up there with Young v. Hawaii's decade-long wait. I doubt it will be. I expect a long-standing yeshiva will be stubborn at the end of a case, where other religious orgs struggle to revert changes. And probably a coincidence that this falls at the same time the federal gay marriage bill is struggling in the Senate, over conflicts related to

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gattsuru 7mo ago

Charitably, people who don't care about guns or are anti-gun to start with sometimes might have seen a recent few high-profile incidents that Hit Close To Home and suddenly justified everything. This model's kinda the dark mirror to the "conservative is a liberal who's been mugged" deal: there's a lot of people who were once willing to live-and-let-live (or at least had better places to spend their political capital) who become true believers over some incident that made things too salient for them. The resulting policy proposals aren't always this hairbrained, but you're picking from a group that's by definition not considered the space at length in the past nor been heavily exposed to other people who have. Some people are people do really believe what they're doing.

But Grisham has been in this game for a while. The more cynical analysis is that she's term-limited (New Mexico governors can only serve two terms; her second ends in 2027) in a pretty Blue and increasingly blueing state (between Californian exodus, and the aftermath of the last decade worth of redistricting), and she's been working in (otherwise unemployable parts of) the .gov since 1992. There's three major career paths available where this sorta trial balloon is a major resume-burnisher even and maybe especially if it flops: either moving to federal politics, managing state-level politics, or going into the bureaucratic activism or non-technically-state-just-state-funded activist groups.

It's possible she's gunning for Lujan's seat -- he had a stroke last year, and while he's recovered might take it as a sign to retire -- or perhaps the VP slot for 2028. But more likely I'm thinking the last option. This is the sorta thing that absolutely blocks any chance of a cabinet-level position or other place requiring a senate confirmation, short of a wildly stacked Dem Senate, but it's an excellent advertisement for Acting whatevers or bigger names at think tanks or commentary positions, where this hugely visible commitment is useful to know who's likely to stay bought.

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gattsuru 1yr ago

I'm gonna deny this.

I mean, I also object to its premises: I don't think you've got sufficient evidence for his motivations (yet! maybe you're guessing right, but you're guessing), and I don't think you cared about examples with opposing valence like the Dayton Shooter (which turned out to not be motivated by his left-wing politics or the demographics of the bar he targeted), or the planned attack on Kavanaugh. I don't think you'd accept the same games with any of the 'inevitable' consequences of police deescalation. I don't think you'd suddenly stop blaming people if they merely said that people advocating the availability of Gender Neutral in school libraries were merely violating the boundaries of parents. And I can demonstrate that you're not going to limit this object to the specific matter of sexuality, but also to immigration.

But more deeply, same as last time: no. The theory that someone is responsible for the bad actions of a crazed actor taking the funhouse mirror of a bad game of telephone of their actual argument is not good as political, moral, or normative philosophy. Not just in the obvious stupid ways where you're incentivizing future mass murderers by making clear that they could get outsized publicity and undermine the political opponents by selecting their targets carefully.

The more blunt way where turning all arguments into debates over the "reasonable man's reaction" rather than their actual truth value is insipid. Do you realize the natural consequences of this position? Do you realize why neither I nor you should spell them out?

What do you think would happen if you were to go to LibsOfTikTok's audience and tell them than any reasonable man, seeing what they've seen, should commit horrific acts, instead of commenting against the representativeness and accuracy of what they've seen? Of course, that's not the point, here. You want the referee to step in, and give a timeout and a five-yard penalty, and maybe a yellow card. What possible consequence could come from trying to do that for a tenth of the American population?

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gattsuru 4mo ago

Hradzka has a good bit on what he expected Richard Spencer was trying to do with the term to start with, and what a lot of progressives were doing as well. Or see this New York Times piece (by Singal, of course) that separated the 'alt-right' from the 'alt-light' -- and contrast, even contemporaneously, other pieces.

There's a lot of if-by-whiskey, where sometimes the alt-right was just the nutty white nationalists when defining their ideology, others where it was people who hadn't denounced them heavily enough, and then other times the alt-right was pretty much everyone to the right of Mitt Romney. And to a lot of the progressive and leftist movements, the difference was kinda marginal : if you think Mitt Romney was a white supremacist, you're worried about all of them.

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gattsuru 6mo ago

Both. It'd be a massive humanitarian crisis just by raw numbers, but every country anywhere near that area knows of Jordan's past principled commitment to generosity and absolutely doesn't want to be them.

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gattsuru 1yr ago

Begun, the Butlerian Jihad has:

/r/dune is not accepting AI-generated art.

This applies to images created using services such as DALL-E, Midjourney, StarryAI, WOMBO Dream, and others. Our team has been removing said content for a number of months on a post-by-post basis, but given its continued popularity across Reddit we felt that a public announcement was justified.

We acknowledge that many of these pieces are neat to look at, and the technology sure is fascinating, but it does technically qualify as low-effort content—especially when compared to original, "human-made" art, which we would like to prioritize going forward.

Ok, the Dune one's a little funny given the in-universe history, but a pretty wide breadth of art-focused hosts have banned AI-generated art (to the extent they can detect it) or have sometime-onerous restrictions on what AI-genned art can be used. Some sites that still allow AI art, such as ArtStation or DeviantArt, have had no small amount of internal controversy as a result. Nor is this limited to art: StackOverflow's ban on ChatGPT-generated responses makes a lot of sense given ChatGPT's low interest in accuracy, but Google considers all AI-generated text spam as a category for downranking purposes, to whatever extent they care to detect it. And a lot of mainstream political position seems about what you'd expect.

Most of these are just funny, in no small part because alternatives remain (uh... maaaaaybe excepting Google?). This is a little more interesting:

We are writing in response to your correspondence of October 28, 2022 as counsel to Kristina Kashtanova. Kashtanova was recently granted copyright registration no. VAu001480196 for her work “Zarya of the Dawn” (the “Work”).

Subsequent to Kashtanova’s successful registration of the Work, the Office initiated cancellation of her registration on the basis that “the information in [her] application was incorrect or, at a minimum, substantively incomplete” due to Kashtanova’s use of an artificial intelligence generative tool (“the Midjourney service”) as part of her creative process. The concern of the Office appears to be that the Work does not have human authorship, or alternatively that Kashtanova’s claim of authorship was not limited to exclude elements with potential non-human authorship. We are writing to affirm Kashtanova’s authorship of the entirety of the Work, despite her use of Midjourney’s image generation service as part of her creative process.

Zarya of the Dawn isn't actually a good piece -- and not just for the gender Culture War reasons; its MidJourney use isn't exactly masterful and probably just an attempt to cash in on Being First -- but most art isn't good. Quality isn't the standard used by the Copyright Office or copyright law more broadly.

The standard is complicated, not least of all because copyright itself is complicated. Sometimes that's in goofy ways, like in Naruto v. David Slater et al. (better known as the Ape Selfie case), whether an animal had the ability to bring a copyright suit for a picture taken by that animal. While Naruto fell on statutory standing questions in an unregistered copyright suit, the Copyright Office issues a regularly-updated compendium of practices for those seeking registration that seems to reference it or a similar case, among other pieces:

As discussed in Section 306, the Copyright Act protects “original works of authorship.” 17 U.S.C. § 102(a) (emphasis added). To qualify as a work of “authorship” a work must be created by a human being. See Burrow-Giles Lithographic Co., 111 U.S. at 58. Works that do not satisfy this requirement are not copyrightable.

The U.S. Copyright Office will not register works produced by nature, animals, or plants. Likewise, the Office cannot register a work purportedly created by divine or supernatural beings, although the Office may register a work where the application or the deposit copy(ies) state that the work was inspired by a divine spirit. Examples:

A photograph taken by a monkey

But while animal pictures or naturally-formed rocks are one example left outside of the scope of "authorship", it's not the only one:

Similarly, the Office will not register works produced by a machine or mere mechanical process that operates randomly or automatically without any creative input or intervention from a human author. The crucial question is “whether the ‘work’ is basically one of human authorship, with the computer [or other device] merely being an assisting instrument, or whether the traditional elements of authorship in the work (literary, artistic, or musical expression or elements of selection, arrangement, etc.) were actually conceived and executed not by man but by a machine.”

Most of these examples are trivial : size changes, manufacturing requirements, simple changes to a song's key, or direct output of diagnostic equipment. The most complex currently listed example is "A claim based on a mechanical weaving process that randomly produces irregular shapes in the fabric without any discernible pattern", which is the sort of highly specific thing that makes you sure someone's tried it.

It'll be interesting to see if the next update has text on AI-generation, and if so, if the Office tries to separate different levels of human interaction (or, worse, the models themselves).

The US Copyright Office's determinations do not control court interpretation of the Copyright Act, so it's possible that prohibitions on registering ai-generated or ai-assisted art or text would still leave some ownership rights. But it's unlikely, and registration is required before someone can get statutory damages. Now most people aren't going to care much about the legal exactidues of copyright for their Original Character Donut Steel 8-Fingers to start with. Because all copyright claims are federal or international law, and there is no federal small claims court (and no meaningful international court), these protections are fairly minimal for hobbyist or end-users even when present and when the user cares, anyway.

But it isn't too hard to think of problems that could come about, anyway. There's already a small industry of pirates that scrape public spheres for artwork and creations to repeat (cw: badly drawn cartoon butts). To what limited extent these have been kept in check, that's because traditional retailers are at least worried about the outlier case where someone's willing and obnoxious enough to prove a point, or at least unsure they're at far enough distance for tort and PR purposes. And this is a signal, if a weak signal, for other matters like whether the business would care for liability if their USB cable burns down your house, or you demand a return for the clothing that fell apart seconds after you put it on, or a thousand other minor things.

It's... not clear how long that lasts, if AI-gen is outside of copyright, categorically, but also hard for humans to detect (and filtered for AI-art humans find hard to detect). I was cautiously hopeful that tools like StableDiffusion could end up a helpful tool for artists, but a lot of artists are concerned enough about the concept to be willing to burn down the field and join hands with Disney to do it. I don't think people are going to like what happens when the groups optimized for a copyright-free existence become hard to distinguish from their own sphere, and able to happily intervene within it.

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gattsuru 1yr ago · Edited 1yr ago

From what I can see, it appears the FBI was very insistent upon the possibility of a 2016 DNC-style hack. I don't think this is necessarily unreasonable until the election is settled - that the hack didn't happen doesn't mean you could conclude it wouldn't were you in the months leading up to the election.

It's not clear it's the FBI's role is to prevent disclosure of information from something like the 2016 DNC-style hack. They could arguably be charged with preventing such hacks, but going further than that runs into first amendment issues real quick.

In September 2020, Roth and others partook of a tabletop exercise to simulate a "hack and dump" operation regarding the Biden campaign. The goal was apparently to "shape" how the media would respond.

I'd also separately be very interested in the background behind things like the Aspen Digital meetup cited here, given other summaries. The Aspen Institute is technically a NGO, but it'd also be trivial for it to act as a cutout for government agencies, and Garrett himself has a comfy relationship to the FBI specifically.

Maybe there's some more plausible explanation, given everything else; perhaps the Aspen Digital wargame also had a few dozen other examples ranging from red-tribe-leaning to the non-political. But the incredible specificity to something that the FBI knew or should have known could have occurred without a foreign intelligence nexus (either their own people leaking, or Hunter fucking up somewhere they couldn't clean up fast enough) is... looking like at best the FBI trying to clean up potential problems ahead of time.

A secondary objection of mine is the blurring of public and private boundary with how intelligence officials and agencies were coordinating with and sharing classified information with these companies in an effort to get them on-board with doing work for the FBI. It's difficult to articulate what I precisely find problematic here.

I think the trivial objection is that far less direct entanglement has been treated as a violation of rights as a government actor in other environments. I'm sure the FBI's lawyers signed it off and no one would have standing to challenge it anyway, but the extent and degree that the FBI here appears to be pushing and providing recompense to people for the purpose of limiting political speech is a big deal, and worse than I expected to find.

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gattsuru 3d ago · Edited 3d ago

Namely I thought it was a little weird how focused Hanania was on making sure workplaces be more conducive to finding sexual partners...

While I expect the answer for Hanania specifically is that he's reaching for whatever weapons are available, there are some very serious problems, here:

Full-time workers are spending about a third of their waking lives at their workplaces, a sizable portion of their Dunbar-sphere will be made of coworkers, and under current law employers can be liable even for after-hours and off-campus behavior by employees. In many career fields, it's common to spend months with little chance for a social life outside of the office at all. Maybe the 20% of couples just meet up right outside of work, but I'd expect that we're not so lucky, and at least some aren't getting BATNAs.
Worse, the modern rule isn't just 'don't fuck your employees/coworkers', but against wide breadths of discussion and behavior adjacent to sex or gender stuff. Enforcement is hilariously inconsistent even in places where employers care (and the number of bullshit lawsuits are Known enough that normal people are often hesitant to bring genuine ones), so people can act as though a lot of this stuff is still allowed, but once you get above a certain size of company you start getting insurers/lawyers/politicians peering in and insisting that your workplace complies so that enforcement Won't Be Necessary. As a result, a lot of spaces for vertical transmission of knowledge about matters of sex and romance no longer exist, or have been thoroughly commandeered into a state-favored presentation.
Avoiding the appearance -- or possibility -- of impropriety has serious and significant costs. I'm not sure how much I trust the specific numbers for 'MeToo made men afraid to mentor women', but the end result of that policy ends up meaning I've got a Fun Ethics Question when my workplace has me share a hotel room with a (afaik straight, not my type) guy. This isn't taking all the fun out of workplace socialization, but it's a big and vast set of constraints, often ones heavily dependent on local social norms.

The end result of a sexless public space for men... well, we have examples from other spheres that had to move sex to fully private spaces, and the alternatives that they've developed kinda work, but they come at tremendous cost. Online dating started out rough, and it's since vanished up its own backside in a mix of borderline fraud and unrealistic standards. Bars and mixers have come coincidentally along with a hefty incidence of alcoholism and other abuses.

For Scott:

When I think of wokeness, I think of the great cultural turn around 2010 - 2015... Hanania has no explanation for this. He talks about civil rights laws that have been in place since 1964 (he does say that maybe the new civil rights bill signed in 1991 inspired that decade’s interest in “political correctness”, but The Closing Of The American Mind, generally considered the opening shot in that debate, was published in 1987). Why would 1964 and 1991 laws turn wokeness into a huge deal in 2015? Hanania has no answer.

Again, Hanania might not have an answer because he doesn't care enough to think one necessary, but there's a pretty easy and obvious one.

The Civil Rights Act was intended as written under a hilariously narrow scope for all of its wide claims. That lead to hard cases, and even as late at the 1980s the courts were struggling with matters like whether it was discriminatory if an employer (allegedly) raped an employee, and into the late-90s if it would be discriminatory even if the victim was male. There weren't just hard cases in that they involved sympathetic victims and extremely bad behavior, or even whether they could be arguably within the intent or text of the Civil Rights Act, but because they were also near-universally around things that were separately violations of common state laws that had existed for quite some time, at a time where and when the public was unwilling to allow businesses to wash hands of bad acts by their employees. Government advocates and private lawyers had a pick of both clear violations of the text of this law, or arguable cases for this law that shocked the conscience.

((Scalia delivered Oncale, for example.))

But to do so, the CRA1964 had to establish an industry around fighting racism. The EEOC isn't not five commissioners at a table; it had around 350 employees in the 1960s, which grew into the thousands by the late 1990s. Nor was it alone; other offices downstream of or expanded by the CRA include the Commission on Civil Rights, the (various) Office for Civil Rights, the Office for Fair Housing and Equal Opportunity, DOE Civil Rights Division, so on. And then around that, built up an industry around selecting and prosecuting private lawsuits, and training people to do this, and training people to train. Now, when the law and interpretation was constrained, and overt discrimination (or bad-for-other-reasons-argued-as-discrimination) cases had the pick of both plaintiff and employer, most cases kept close to the core.

That changed. Some legislation made it easier (eg, the 1991 revision allowed some vaguely-defined set of suits with a theory of discrimination that could not identify specifically discriminatory policies or actions, or to get attorney's fees and thus cases on contingency without proving damages), but the grander problem is that you now had thousands of people who's job was to find discriminatory actors, who were trained to notice the most subtle hints of it, and in no small part who believed in the mission. An increasing number, by the close of the 1990s, had literally never known a world without an EEOC and the norms it wanted to apply across the country; many had been trained by those who worked up through the EEOC's wishcasting of policies it wanted.

That's how you get a lawsuit with an appeal's court opinion released in 2010, about a complaint first pushed in 2006, revolving around the sort of "general civility code" that Oncale specifically disavowed. It's how you get related cases that similarly emphasis a general theory of Bad Person. And it matches the timeline far closer than the standard motions around college campuses or SomethingAwful refuges.

That doesn't make Hanania right -- there's a lot of other stuff in the history, if you poke at it, and that's not to mention that just for this there's a pile of executive orders and regulatory notices and all the social junk around the 2008/2006 elections -- but there's a lot more to this stuff than just looking at the dates laws were implemented.

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gattsuru 2mo ago

Political actors will virtually always use whatever weapons they can against their opponents. It's not as if we've existed in a state of peace and harmony up until this moment.

This seems untrue for any sense more meaningful than the tautological one where any tool unused 'must' have not be available.

Eric Holder was not impeached nor charged with contempt of congress after the DoJ switched hands, despite his original Congressional contempt vote being widely bipartisan. Despite the fevered wishes of every progressive on the internet from 2003-2008, Dubya never faced criminal charges. Lujan Grisham was not impeached, the calls to censor couldn't even get all Republicans, and she will not be facing a hundred citizen grand juries for clearly unconstitutional executive orders; she has not so far faced a single one.

I'm not proposing people avoided these mistakes out of the goodness of their cold, shriveled hearts. Indeed, there may well have been tactical causes, or even simple ignorance or inability. And yet.

Democrats will not sue DeSantis for fraud

That's an interesting specific example to bring forward! Let's go drink from a tall glass of water and look at some headlines from a little over a year ago.

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gattsuru 4mo ago · Edited 4mo ago

This is very much not my recollection of that election, what are you talking about?

/

The current sitting President of the United States, then VP campaigned against Romney by claiming he would put African-Americans back "in chains". Romney was campaigning against hormonal birth control, somehow. Romney's VP pick faced attack ads that had him wheeling grandma off a cliff. Ann Romney was a repeated target of pretty shitty media coverage that conveniently intersected with her multiple sclerosis. People were absolutely sure Romney-Ryan were going to ban gay sex, somehow! The IRS leaked NOM donation records that just conveniently happened to have his donations included, and just so happened to get delivered to the HRC.

Harry Reid famously and falsely claimed that Romney'd paid zero taxes on the floor of Congress, and after it had been widely distributed, widely believed, and at cost proven wrong, then years later said he had no regrets because "he lost, didn't he"!

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gattsuru 7mo ago

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.

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gattsuru 1yr ago

The State as a whole pretty unquestionably has the power, and there have been (smaller) loan forgiveness in the past. While I'd argue that doing so for loans issued by third parties would fall afoul of the Contracts Clause, the courts have routinely and consistently held that this clause only limits individual states and not the federal government.

The President, however, does not have the power to unilaterally do so. The core component is the Appropriations Clause, which prohibits federal spending without legislative authorization. Courts don't accept purely constitutional arguments, but rather places where those constitutional problems impinge on specific people, so the exacts are a little removed, but they're all about this problem.

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gattsuru 1yr ago

Some past conversation on this topic. I'll also point to the Times in terms of where gun control advocates want this to go next:

Creating the merchant code is only the beginning. Here’s what will need to happen next for it to help identify suspicious purchases:

Card networks like Mastercard and Visa need to not only adopt the code, but also enforce its use by merchants and payment processors.

Merchants must start using the code, and not obfuscate transactions by using other classifications.

Big retailers like Walmart and sporting goods stores — which themselves use different merchant codes — need to use the code at registers they use to ring up firearms.

Most crucially, the payments industry needs to develop and refine software algorithms for identifying suspicious activity based on the merchant codes.

And, more subtly :

Lawmakers like Senator Elizabeth Warren, Democrat of Massachusetts, publicly supported the plan...

Senator Warren, while better known for a hilarious incident involving a genetics testing kit, is also a member of the Senate Banking Committee, and chair of the Subcommittee on Economic Policy.

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gattsuru 7mo ago · Edited 7mo ago

... I realize that this was meant as an off-the-cuff response, but can you provide a single example of a statue-toppling or courthouse-torching person receiving a 15+ year sentence?

Actual burned-down cars or buildings arsonists, even when doing so killed people while trying to conceal /other/ crimes, aren't getting that sort of sentence. As far as I know, even where statute-toppling nearly killed someone, as far as I know no one was convicted and the people who were charged and assisted got a sizable settlement from a local government that fired the police chief that charged them before any serious attempt at trial. Actually literally-directly-murdering a teenager in cold blood at CHOP/CHAZ? 14 years

In theory, the guy who plotted to kill Kavanaugh could by statute get sentenced to literally anything, if the court case ever starts, but if I'm reading the sentencing guidelines probably maybe he'd get 14 years at the high end?

Obviously it's easy to draw a thousand lines such that each reference case is a class of one, and there's a million ways you can talk about how all those other protests that interfere with various proceedings are totally separate such that it's absolutely reasonable for them to end with an arrest and no charges ever being brought. But it's kinda hard to draw lines without making the Texas Sharpshooter's Fallacy obvious.

And that's... kinda the issue. You can well say how much you hope that anything near this gets smacked down with a sledgehammer no matter who does it, but if you want to actually have a norm what matters is what people actually see happening, and the last time a progressive-themed group got hit hard for anything on this class involved a literal bombing, and even that ended up becoming a cause celebre.

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gattsuru 11mo ago

There was a pretty famous one in 2013 that received NRA support, but was shot down because Dems preferred a version that didn't bother with a fig-leaf of due process.

Which kinda points to the problem. It is quite possible both for the ATF to require ridiculous levels of paperwork and come down like a brick shithouse on FFLs that don't require clients to spell out Yes and No on every line, while also ignoring a vast realm of straw or otherwise unlawful purchases (plausibly including the son of a sitting president!). It is quite possible for there to be a lot of support for Universal Background Checks in general, and then actually-written background check proposals to be so badly drafted as to require restructuring hunter education classes.

More broadly, there's also an issue where this is all very obviously just another step toward the next big restriction. We don't have particularly good reason to believe the rules that actually do get enforced actually prevent mass or spree shootings, and a lot of times they get brought up even when they very clearly couldn't prevent them (eg, several bills named after an incident where the mass shooter stole a firearm involved background checks) ... but they are great at making it difficult to be into firearms, or to get new generations into firearms.

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gattsuru 1yr ago

Concord better get ready for long hot summer of battles between red hat crowds trying to tear down the sign and black flag ones trying to defend it.

Do you want to bet on it? Because even if it does bubble up to common awareness, it seems the more likely result is the first time a bunch of red hats try to tip a sign (or try to deface it using a car, insert your own more vivid alternatives involving chain here), they get arrested, the entire country uses their misogyny as an example That Must Be Stopped, the moderate Republicans denounce them, the RINOs want them hung like meat, and the Trump/Loomer axis gets distracted with an internal sex scandal instead of even noticing.

The people dropping a statute of Christopher Columbus into the sea were doing what a significant part of t he city council wanted done, but couldn't. That's how this works; it's not a sword that cuts both ways.

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gattsuru 1yr ago · Edited 1yr ago

[cw: probably an invasive meme, although not a particularly harmful one. Also, caveat: I don't think Bailey or Blanchard's model is particularly useful as an approach for the typical trans woman, even and in part because there are actual 'cis'-by-conventional-standards autogynophiles.]

There's a variety and range on these matters: actors taking method acting to extremes either falsely (no one cares about Leto) to more serious issues (Bowie didn't seem to handle his stage persona well at all), and multiples (don't ask) can range from wanting integration to actively being appalled by the concept. It's enough of an issue that there's a lot of psychological screening that goes on for serious undercover investigation roles. TvTropes (cw: tvtropes) has a pretty good list of some real-life examples at the bottom of this page, mostly focused on actors.

((Though not everyone seems vulnerable: Norah Vincent's later suicide is probably unrelated to her time living as a man, but even when she liked the social aspects she never really seemed to change self-identity.))

Fictional tulpa or tulpa-likes that take over their creator is a popular target of media, but actual people who've made one and complain about it tend to be more frustrated just that they can't get it to shut up (and arguably some impact on performance in some testing scenarios?) rather than it becoming the new 'real' personality.

((Furries and some non-furries that spend too much time in VR have reported weird results. Some therianthropes claimed to get similar fake-tactile feedback with sufficient meditation in a pre-VR environment, but it's... hard to find good documentation now. And impacts on personality from an avatar are pretty well-documented well outside of VR, although insert necessary caveats about social science research, even if I've been more impressed by Nick Yee than most social scientists.))

Outside of the more out-there therians and actors, though, this can be hard to notice from the outside, and harder still to distinguish from normal personality changes from simply being in these environments. It's weird if you wanted to have your last name legally changed to match your wrestling stage name or fursona, but unless you also get in a shootout with cops or pick a name the courts don't like, it's probably not going to make the news.

And if it's not changing your name or gender (or phenotype), it might even be part of the intent going in! There's a lot of people who go into VR with the intent of getting more used to meatspace interactions, and it's hard to tell the difference between being more social because you've gotten the practice, and being more social because that's what your avatar would do. If gatt the nardodragon likes pranks more than I do, or gry the Hrothgar is just generally cheerful, it might even be hard for me internally to notice if I’m more them one day. Even if I present mannerisms that are solely artifacts of those game's designers or animators, there’s mirror neuron reasons it could happen just as a matter of course rather than some deep identity matters.

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gattsuru 1yr ago · Edited 1yr ago

Some of it reflects the modern youth being far more reviewable ('seeable-to-a-state') than any demographic in history, at far smaller scales, and social pressures encouraging that review. It's at least possible for every letter a kid types on a laptop to go to their parent or school IT administrator; meatspace environments are more often policed literally and figuratively to an extent that would make Victorian chaperones envious; I've written at length about MineCraft coming up with a fairly interesting approach to allow Microsoft to react to bad behavior on servers operated entirely by third parties. That shouldn't destroy an adult-and-later-teens focused environment, but various economic pressures favoring centralization (and funding and investment sources that are extremely coddling-favorable themselves) along with the aftermath of have split the visible internet more readily into a large all-ages, a small not-porn or mixed-media adult, and moderately-sized porn, and a vague gray-market environment.

((For an example on that hard-division: my Reddit account is marked as NSFW, and I'm 99% sure it's because I posted in /r/furrydiffusion, because there's two top-level posts in that subreddit that was porn, even though mine were not. This only happened years after my top-upvoted comment every was about gay sex, which did not. Which doesn't matter for me, except when I'm trying to look for a post of my own without being logged in.))

Part of it's that a lot of the media is economic, in ways that stuff in the way-long-ago of a decade ago wasn't. There are professional VTubers, and a larger number who at least cover (some of) their production costs; while a few people worry about demonetization or age restrictions for limits to their visibility, most do want and often need the money, and that money is coming through different means and approaches than present in the 00s. PayPal could (and would) close your donation account if someone put too horny a joke in the tip jar, but even if Boxu doesn't care, someone can end up getting attention that does (cw: FFXIV 5.0 spoilers) (though contrast here, cw: FFXIV 5.x raid spoilers, dick discussion, audio references to amazingly gifted crossdressers, and be glad that I'm not linking to the earlier 'gooch press' discussion which manages to be worse).

Some of this does reflect YouTube (and The Internet) being something different socially than its technical equivalents were in the 90s and 00s. The monetized half-million subscriber accounts are more similar to broadcast or a cable television stations in their relative size and position in the media ecosystem than they are the Wacky Newgrounds Animations, and the outside pressures change to reflect that. Rimmy's analysis is a little more obnoxious-sounding than the sort of reviews that the Comics Code or Hayes Code, if less for covered content and more because YouTube can't manage to keep the rules straight for a few weeks at a time.

Even for YouTube specifically, people who bite the bullet on demonetization can get pretty weird and NSFW (cw: furry, swears, adult humour, love-bombing, gay) without getting delisted from search or banned; even with the monetization rules I know of a VTuber (cw: furry, vtuber, adult humour, sex jokes, gaaaaaaay) that's been flogging his daikamura (discount code: KNOT) for months. Tits-and-beer liberalism has been replaced to an extent by tits-and-dick-and-beer-and-weed liberalism, but it's still there and for the not-interested-in-trans-women guys, some of it doesn't even have the tits and dick on the same person. When you go to less seeable-to-a-state places, things get weird quick even stuff that normally attracts the attention of Big Corporations.

Of course, there was a point where tits-and-beer was accepted even on the cable televisions. And it's pretty noticeable when you see things on YouTube looking at the same creator's own past (cw: sexual violence joke, people taking Dragon Ball Z's plot more seriously than its author). Understandings of what's funny and what is beyond the pale changed a lot. It's tempting to notice and frame that change solely through the Culture War, and that's certainly a vector, but I don't think it's the only or even controlling one: the terror under it all is a world crafted by lawyers and for lawyers, built not only of bubble wrap but with a prohibition on popping it.

And I say "crafted by lawyers and for lawyers" because some part of the vector is legal or threats-of-legal, but I think the underlying thing is deeper than that: there's a parallel to the 'seeing-as-a-state', where individual workplaces and fields of study teach different viewpoints of and approaches to measure the world, and that this starts to adjust your understanding of the world and risk. While not every lawyer does it, the overwhelming field encourages thinking about things in the sense of things like attractive nuisance and eggshell skull, where mere responsibility is not enough, even and especially when the doctrines do not cover the specific context. If you brought the LEGO lawyers in and said neither COPPA nor general law would or under CDA230 could hold them responsible for someone making a dick in their game, and that no sane observer would, they wouldn't care. If you told YouTube that they're censoring more heavily and arbitrarily than radio stations, they'd still point to the risk of getting pulled before the Senate.

It's tempting to call it risk-aversion, but it's more loss-aversion and of that a very specific kind. Even very likely benefits get scraped and even likely downsides are accepted where the change is too seeable. You mention even likely-unsuccessful lawsuits as a harmful on their own, aka the process is the punishment, but it's not even just the courts! The Twitter stuff is almost certainly due to the political valence of that moderation (most overtly, a common complaint was about all of the slurs showing up on the complainant's following page), but I don't think that's the sort of tooling that got thrown together overnight, or even had its first test case in this circumstance.

And once a tool exists -- even if its first uses were 'good!' -- it's very easy to be guided by the beauty of our weapons.

((and... I'm very suspicious that there have been behind-closed-door meetings encouraging this at the level of law or regulation; indeed, I wouldn't be surprised if a lot of the bullshit Rimmy's running into is because the behind-closed-door meetings don't want to be too specific in a form that could be leaked but still want to get buttons pushed.))

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gattsuru 1yr ago

The Intercept had thoroughly covered attempts by the DHS to remove "misinformation" from social media a few months ago. I'm genuinely unsure what Taibbi or any of the other TF reporters think was revealed here.

Contemporaneously, the defenses of 'FBI misinformation teams', not just in the last few months but even eg the Jankowicz controversies well before that often involved some combination of :

the FBI had a valid role in combating fraud or other federal crimes related to false statements, and it wasn't going far outside of that here,
the majority of stricken content involved Bad Actors, either likely foreign governments, foreign-government-inspired 'third parties', and/or domestic near-criminals, and/or
the government's requests were 'just like anyone else', in that they were not prioritized, and did not result in takedowns that were unlikely if reported by normal people.

Note even in your Intercept link -- in addition to the low trust a lot of people have with the Intercept specifically -- mentions that "the extent to which the DHS initiatives affect Americans’ daily social feeds is unclear." The lawsuit the Intercept links is impressively limited in its references to the FBI (consisting almost solely of mentioning the FBI-Zuckerberg meeting mentioned in a Rogan interview), but more generally spends little focus on blocking of specific content, almost purely limited to the CDC's use of example posts. Those are controversial enough, but they were highly limited in both scope and topic. And while part of that reflects poor competence from the lawsuit's filers, more of it reflects that simply not being known anywhere. Because it was never known if any given censorship action was driven from state actors, it has been trivial to avoid object-level claims. People still pretend the Hunter Biden laptop was organically blocked!

This seems kinda like a pretty major revelations for all three of these things!

A number of posts are clearly protected political speech, satire, or rarely even plausible (if wrong) beliefs. The accounts do not show signs of domestic terrorism, nor of "boosting" or other signs of foreign intervention. And while Twitter didn't suspend 100% of posters the FBI gave, they are clearly willing to err far further on the side of moderating anyone brought through these formats than any posts brought forward through normal reports would be.

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gattsuru 1yr ago

I think that going from "wide variability" without mentioning the range does matter on its own, even as someone that wishes Kleck was a bit more fastidious on his research. Not just that it's hiding or papering over data, though that's not great, but that a lot of mainstream activism relies on and communicates that these numbers are far, far lower than downsides like unlawful homicide or assault. GVA objects to even the lower-end estimate (60k) from the previous report for that reason.

And there a bunch of more complex issues, where to many people it seems like the desire to wipe the board and start again with new research coincides a) with the places with the greatest political disagreement, rather than disagreement with the merits, and b) where changes in political affiliation with likely researchers and with publications make it unlikely to see the same reads present, even if they were true.

On the other hand, I didn't write this up in June, even though I'd been keeping an eye on MorosKostas well before that. Nor did the Reload, even as its lead writer did.

Having a couple major gun control advocacy group specifically say that they want the number taken down because it undermines their policy goals, and then the CDC doing it because the gun control advocacy group asked, makes it a far bigger deal. This one is small, and not that aggressive, and ... it's the one they got caught on.

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gattsuru 3mo ago

I'm going to make a different critique than most people, here :

It means that if people like you, and you’re doing well, then you can commit lots of mild misdeeds and journalists will never bother you. But if you become unpopular, or seem weird, or take a stand against something widely believed, then investigative journalists will dig up all your decades-old mistakes and ruin your reputation.

This is hilariously naive. It's not just or even mostly journalists, in the same way that a pressure wave isn't just or even mostly any one particle.

There's a poster on tumblr named brazenautomaton, who's a bit of a mad artist in all of the best ways. One of those are his rants -- and I use the term as a compliment -- on popularity. I can't find the best one of the top of my head, but as a good example:

It’s not self-hatred at all. It’s popularity. These “woke” white men who can’t shut up about how evil white people are tend to be attractive, well-off, upper-middle-class, and most important of all, popular. Inherently popular. Other people instinctively align themselves with their goals and desires, because they are popular. Because they are popular, their goals and desires are “Punish unpopular people”.

If you are well-off, attractive, upper-middle-class, and popular, you have very very little to fear from social punishment, because people will not WANT to punish you. They want to punish unpopular people. One of the best ways you can find unpopular people so you can punish them, is to just start trying to punish everyone in your zone of perception – the other popular people will remain unpunished, the middling people will suffer a bit but you don’t care, and the unpopular people will be revealed by how much punishment rains upon them because they do not have popularity and thus are unable to stop it from happening. Then, once you have located the unpopular people by seeing who actually gets punished from your omnidirectional punishment attempts, you can continue to punish them. Forever and ever and ever, because it will never end, and they will not stop, and they will not be stopped.

Yes, this is clinical depression, though see Scott re: Malcolm Muggeridge. It's also non-falsifiable: anyone who can be punished can't be popular, and anyone who is popular can't be punished. But it's also a pattern that exists.

Scott knows this, more intimately than most. It's not like that's even a one-off! But I can play examples of the confessed rapist you could not even discuss the 'allegations' of over at RPGnet, until they annoyed someone enough to get booted, and then the deluge. I can give examples as severe as alleged grooming and as minor as 'appropriated her own culture' in the furry fandom. Nor is it specific to online or the left: the pastor everyone loves until, posthumously, it turns out everyone had a horror story about is trope with a lot of recently-live examples. Nor it is about big stuff: the Friday Fun thread conversation about Palworld has some steelmen, but it's almost certainly downstream of some popular people wanting to start wars over AIgen.

You and I will do it too. It's hard to care for what's real, rather than what's talked about and what the people around you find important.

Maybe Scott doesn't think it necessary to say, maybe he knows that one of the big rules for being on the Inside is that you don't mention that there's an Inside.

But it's not just the journalists doing this, and I'm increasingly convinced that they're neither driving the stampede nor surfing the crowd.

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gattsuru 3mo ago

There have been some interesting results in relation to the Hugo Awards, and to the broader WorldCon environment. Kevin Standlee, a previous chair of the World Science Fiction Society (the WorldCon runners) posts Elections have Consequences:

Something that I think most people have forgotten is that Worldcons happen in the real world and are subject to real-world conditions. Among other things, Worldcons have to obey the laws of the place in which they are held, no matter what their governing documents say.

An overwhelming majority of the members of WSFS who voted on the site of the 2023 Worldcon (at the 2021 Worldcon in DC) selected Chengdu, China as the host of the 2023 Worldcon. That meant that the members of WSFS who expressed an opinion accepted that the convention would be held under Chinese legal conditions. Furthermore, those people (including me) who suggested that there might be election irregularities were overridden, shouted down, fired from their convention positions, and told that they were evil and probably racist for even suggesting such a thing.

The Hugo Nomination statistics were released on Friday, and unsurprisingly there are some oddities. Some of the disqualifications are likely politically charged over Chinese-specific matters, and others more universal. To be fair, the exact rules for qualification are complex, and some past nominees have been screwed over by esoterica of first publication dates; given the number of new voters, it's not too surprising that some nominated works fell outside of the eligibility timeline.

To be somewhat less charitable, I'm not familiar with too many previous times where nominees were listed as eligible by associated vendors before getting disqualified. The nominations are also bizarre in other ways, if one expected a largely Chinese fandom: there's a few Chinese-original pieces and editors, but not many.

Officially, there was absolutely no political pressure for these decisions, which have an explanation that the WorldCon Chendgu admins won't be providing.

On one hand, it's hard to be surprised if something wacky happened, and surely the people who set up WorldCon inside the CCP should have known it'd be a charlie foxtrot one way or the other. It's even part of the WorldCon bylaws that given a lot of power to the laws of the hosting nation, as Standlee points out. WorldCon locations are determined by member votes, even if this rounds out a little weird.

On the other hand, there were some fun questions about exactly how fair that vote for the 2023 WorldCon bid was well before this point -- quite a lot of ballots were allegedly filled out remotely and dropped off by a small number of visitors. Which wasn't and currently isn't against the rules, mind you! And the WSFS certainly wouldn't bring up questions of authenticity in 2021.

((On the gripping hand, unlike nearly every other vote at WorldCon, the location vote is heavily vetted internally rather than going through a member nominee process; only sufficiently prepared locales are listed. And WorldCon Chengdu advocates had been wining-and-dining hard for a while, which, given the logistical issues the convention had that included a complete rescheduling, might have been descisive.))

Schadenfruede isn't great for the soul, so to some extent I'm pretty happy to that a number of critics of modern WorldCon have had better things to do with their time, even if I personally have struggled not to snark a bit. And it's hard to expect too much to come from any retrospective at this point: because ballots and nominations, proving or disproving any tomfoolery incoherent as a position; more likely, it ends up with some minor tweaks to the location bid process, and just becomes one of those weird bits of fan lore, like when people wonder why Mercedes Lackey disappeared from SFWA conferences.

It's already too late to pass out the Asterisk Awards v2, and most of the winners weren't bad; many would have won regardless, even if the novel slot is definitely curious. ((Though I'm definitely less-than-happy that Scalzi squeaked in a nomination on another terrible work because of the DQ's)). Which brings up the culture war side. Standlee has an example :

Imagine a Worldcon held in Florida. It would be subject to US and Florida law (and any smaller government subdivision). Given legislation passed by Florida, it would not surprise me if such a hypothetical Florida Worldcon's Hugo Administration Subcommittee would disqualify any work with LGBTQ+ content, any work with an LGBTQ+ author, or any LGBTQ+ individual, because the state has declared them all illegal under things like their "Don't Say Gay or Trans" laws and related legislation.

To be fair, Standlee gets pushback, and eventually admits that no, that's not actually the existing law. I expect if pressed hard enough, he'd even admit it would surprise him were a Florida WorldCon's subcommittee willing to comply with such a law. (To be a little less charitable, he's probably going to be a go-to example for people on the left assuming conservative jurisdictions will ignore courts orders, if only because most people use video format or circumlocutions). And perhaps there are uses to bringing forward a nearby hypothetical over a distant reality (and, tbf, the at-least-up-as-a-bid-but-still-implausible WorldCon Uganda gets some attention on File 770).

But it's a slightly awkward comparison. It's not like either of these hypotheticals are really things this cohort experience personally, or even by second- or third-hand. Yet they're useful boogeymen.

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