I wrote for Singal-Minded (non-paywalled) on the topic of PayPal suspending accounts for what appear to be politically motivated reasons. I describe my experience with PayPal suspending my own account a few years ago, and how I managed to get it back:
I called, emailed, and waited on hold, but never got a straight answer from PayPal’s customer service drones. They endlessly repeated that I had violated PayPal’s acceptable use policy as if it were some mantra. If I asked for any detail whatsoever, their response had the tone of a schoolteacher frustrated at having to explain repeatedly to the same kid that crayons should not be shoved up one’s nose. I knew what I did to get my account deleted, apparently. If I wanted to hear it from them, I’d need a court order.
I took inventory of my options.
Here is what I did not have: money in the account, any serious reliance on it, or any wisp of nostalgia for the 14 years we shared.
Here is what I did have: too much free time and a whole heap of pettiness to propel things forward.
So I made a crazy decision. I read PayPal’s User Agreement.
PayPal, like many other companies, have a mandatory arbitration clause in their user agreements that require you to "agree" to waive your right to sue them in court if you have a dispute. I took PayPal up on the offer to settle our shit via arbitration but we never got that far because they quickly caved. I was prompted to write about all this after I met Colin Wright and offered to help him deal with his own PayPal bullshit. From my perspective, he refused my help but nevertheless kept writing opeds about the issue and soliciting donations. I heavily insinuated that he was intentionally holding on to his victimhood status as a grifting strategy. Turns out, I was wrong.
Colin has brought up the issue publicly multiple times since then (writing about it in Quillette and the New York Post for example), but he never responded to my email until I reached out to him for comment on this piece. He did share correspondence with me where prominent free speech attorneys told him, in an apparent contradiction to my claims, that he had no viable legal recourse to getting his account reinstated. I had transmogrified into a gadfly in his mentions, heavily implying Colin was intentionally choosing not to solve the problem, but I was off-base with my insinuation. Colin was bombarded with countless random people (besides just me) offering their one weird trick to solve the problem, and he had no reason to believe any of them knew something that experienced advocates did not. Colin has now initiated dispute resolution with PayPal using the steps I gave him, and I’m intensely curious to see how it will play out.
As best as I can tell, virtually nobody thinks to try to address the issue of politically-motivated corporate censorship with the tools already available to them. Not even FIRE talked about arbitration dispute resolution. This leads me to think this a low-hanging fruit counter-attack that's just ripe for the taking.
Edit: I found out about another instance of someone taking a company to arbitration and winning. See also the hacker news thread, esp. thathndude's posts where they explain how hiring an attorney (even one that doesn't do anything) can result in absurdly higher settlements.
Given the significant interest around the 2020 stolen election claims (definitely my favorite hobby horse topic), and the serious accusations that I have been weakmanning the overall category of election fraud claims, I would like to extend an open invitation to anyone interested in exposing the errors of my ways to a real-time discussion for a Bailey episode.
Here are the conditions I would suggest:
- Given the wide array of stolen election claims and our limited time on earth, you will have free reign to pick 2 or 3 of whatever you believe are the strongest claims worthy of attention, particularly if any of the claims are ones I have conspicuously ignored. Hopefully this will address any concerns that I'm weakmanning.
- Once you have the 2-3 topics chosen, you agree to share in advance all the evidence that you plan to rely upon to make your case so that I have a chance to look at it. Same obligation applies to me for anything I might rely on. I want to avoid anyone thinking that they were either surprised or caught off-guard, and it's also not interesting to listen to someone carefully read a 263-page PDF.
- In terms of number of participants, this might be best as me versus 3. Any more than that is prone to be too chaotic and too tedious to edit, and any fewer I'd be concerned of being insufficiently comprehensive about the topic.
- Everyone involved will have immediate access to everyone's raw recording to guard against any concerns of selective/misleading editing.
- Ideally, you're a bona fide believer (or at least genuinely believe the theories are sufficiently plausible) in the stolen election claims you're arguing for, rather than just someone who can competently steelman the arguments. I want to make sure that every claim is adequately defended.
- I don't intend enforcing any strict format or time limit, as it would be best to discuss each claim for as long as is necessary to ensure it all gets a fair shake.
Are any of the above unreasonable or unfair? Do you have any suggested additions/changes?
I've been trying to set a conversation like this for years but haven't found any takers. @Dean, @jfk, @motteposting are the ones I know are sufficiently motivated and informed about the topic, and whom I'd most look forward to dissecting this topic with. Feel free to nominate anyone else you think would be good.
When Someone Tells You They're Lying, Believe Them
Some people refuse to admit they're wrong, but there's other clues
Paul Ehrlich became well-known for his 1968 book The Population Bomb, where he made many confidently-stated but spectacularly-wrong predictions about imminent overpopulation causing apocalyptical resource scarcity. As illustration for how far off the mark Ehrlich was, he predicted widespread famines in India at a time when its population was around 500 million people, and he wrote "I don't see how India could possibly feed two hundred million more people by 1980." He happened to have made this claim right before India's Green Revolution in agriculture. Not only is India able to feed a population that tripled to 1.4 billion people, it has long been one of the world's largest agricultural exporter.
Ehrlich is also known for notoriously losing a bet in 1990 to one of my favorite humans ever, the perennial optimist (and business professor) Julian Simon. Bryan Caplan brings up some details to the follow-up that never was:
We've all heard about the Ehrlich-Simon bet. Simon the cornucopian bet that resources would get cheaper, Ehrlich the doomsayer bet that they would get pricier, and Simon crushed him. There's a whole book on it. What you probably don't know, however, is that in 1995, Paul Ehrlich and Steve Schneider proposed a long list of new bets for Simon - and that Simon refused them all.
The first bet was fairly straight-forward: Ehrlich picked 5 commodities (copper, chromium, nickel, tin, & tungsten) and predicted that their price would be higher in 1990 compared to 1980 as the materials become scarcer. Instead of rising, the combined price went down. Ehrlich's decade-spanning obstinance and unparalleled ability to step on rakes make him an irresistible punching bag but despite his perennial wrongness, his responses have ranged from evasion to outright denials:
Anne and I have always followed U.N. population projections as modified by the Population Reference Bureau --- so we never made "predictions," even though idiots think we have. When I wrote The Population Bomb in 1968, there were 3.5 billion people. Since then we've added another 2.8 billion --- many more than the total population (2 billion) when I was born in 1932. If that's not a population explosion, what is? My basic claims (and those of the many scientific colleagues who reviewed my work) were that population growth was a major problem. Fifty-eight academies of science said that same thing in 1994, as did the world scientists' warning to humanity in the same year. My view has become depressingly mainline!
Some humans possess the unfortunate egotistical and dishonorable habit of refusing to admit error. It's a reflex I personally find utterly baffling, because nothing engenders someone's credibility to me more than their ability to admit error. So if we can't always rely on people to admit a mistake, what else do we have?
What I find so interesting about the second bet in 1995 is how peculiar the proposed conditions were [image link]:
I kept thinking "...so?" as I read these. Why would someone care about the availability of firewood versus the heating and cooking costs in general? Why would someone care about per capita cropland statistics versus the availability of food in general? Many of these are also blatant statistical fuckery, such as monitoring increases in absolute worldwide AIDS deaths during a period of persistent population growth.
Ehrlich is playing a seemingly uncomfortable game of Twister here, but his behavior makes perfect sense if you read intelligence and agency behind his decisions. The only explanation for the indirect, tangential, and collateral measurements is that Ehrlich knows that a direct measurement will not be favorable to his pet theory. He does not believe in truth, but rather believes in belief as the kids say, and he's not willing to jeopardize it.
The acrobatics are the tell here. When Meghan Murphy debates the sex industry, she has to keep the wheels on her goalposts perpetually greased up. Meghan wants to say that everyone who works in the industry has a negative view of it, but the preemptive goalpost shifting she employs is proof she knows that's a lie. The guy claiming there's a dragon in his garage can only preemptively dismiss [thermal imaging/flour/whatever] as a legitimate investigatory tool only because he knows there is no dragon.
It's not perfect but it's often the best we have. Ideally we get people who act honorably and admit mistakes and are willing to falsify their own theories but barring that, just look for the acrobatics. They're the product of intelligent design, not random chance.
MonoPoly Restricted Trust
Two months ago (an eternity in podcasting, I know) I was on the Bayesian Conspiracy podcast to discuss polyamory with Aella and Eneasz, both of whom are hella fucking poly.[1] I favor monogamy without moral objection to polyamory, yet its appeal eludes me. Given the caliber of my interlocutors, I walked away feeling uncharacteristically frustrated with our conversation, largely because I think we lack a shared understanding of each other's vocabulary.
This post is a belated attempt to remedy the miscommunication, and not one that necessarily requires listening to the episode first (though it helps of course). I address the definition of polyamory, how we talk about 'restrictions' in relationships, and where trust comes from.
Return of the Antipodes
We started by rehashing my ongoing disagreement with Aella and her idiosyncratic definition of 'polyamory'. While this definition offers a new perspective, it's important to consider how it aligns with the broader understanding of polyamory and its impact on communication:
The definition of 'polyamorous' that I find cleanest, for me, is not forbidding your partner from having extra-relationship intimacy. It doesn't matter if they're acting on it or not, it doesn't matter if you don't feel like banging anybody else, as long as your partner could go have sex/love someone else if they wanted, then to me, that's polyamory.
I previously addressed why I really don't like this 'antipodal' re-definition, in contrast to the straightforward and commonly-accepted "the practice of or desire for multiple concurrent romantic/sexual relationships" understanding.[2] Aella has subsequently stated that her position is best expressed as a 2D chart, which nullifies a lot of my criticism. If you had to compress the spectrum down to just one, Aella favors the 'restriction' axis as more fitting while also acknowledging that some information is lost in the process. I agree that a chart allows for more nuance, but disagree with re-defining polyamory to focus away from the 'interested in many' axis for multiple reasons:
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The risk of confusion by the re-definition is very high
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The information conveyed by the re-definition is very low
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The 'restrictions-on-partner' framing can get incoherent
It's totally fine to use words with semantic ambiguity (e.g. light, right, match) when their meaning is clear enough in context (e.g. "You made the right choice by striking a match in the dim light"); and it's totally fine for Aella to want to express a perspective that doesn't align with mainstream understanding of polyamory. But it's really confusing to use a word with an obscure interpretation that forks away from its pre-existing common understanding. Consider the outrage if a politician ran on a platform of "green infrastructure" only to deliver oil refineries painted green. Sure, the election promise wasn't technically false, but the confusion is significant and foreseeable enough to deem it intentional.
The re-definition could be justified if it had compelling benefits, yet it ends up conveying less information. If someone said "I'm a vegetarian" everyone would interpret this as describing their personal abstention from eating meat. But if this person privately redefined 'vegetarian' to mean they're okay with others not eating meat, it shifts the emphasis from a direct expression of one's own attributes to an indirect reactive stance regarding others' choices, leading to a conversation that feels needlessly convoluted. It certainly can be relevant to know what the vegetarian will tolerate, but that's rarely ever the most relevant information. Similarly, if someone hitting on me tells me they're poly, my first thought would be "they have a desire for multiple relationships" and definitely not "if we were in a relationship, and if I had a desire for multiple relationships, this person is willing to tolerate me pursuing these relationships". What purpose could this circuitousness possibly serve?
It's trivial to conjure examples of how the 'restrictions-on-partner' framing devolves into incoherency. One man has a harem relationship with 50 women who he forbids them from seeing anyone else, while they're fine with him sleeping with whomever (If you're following along on the chart, he would be on the top left while they would be on the bottom right). The women are all considered "poly" according to Aella's 'restrictions' re-definition, but the man is not. If he wanted to expand the harem, seeking out "poly" women to add to the roster would be unnecessarily frustrating for everyone involved, because it's just not how people use the term.
One of Aella's objections to focusing on the traditional 'wanting multiple relationships' axis is that it isn't distinctive enough, since almost everyone has some semblance of that desire. This is true but flattens far too much. Her survey data is the gold standard here, and it does show mild interest in banging others among the monogamous.
There's a meaningful difference between an errant desire to bend the barista over the counter, and playing calendar tetris with a dozen of your secondaries, such that it doesn't make sense to cleave "want to pursue extracurricular intimacy" into a neat yes/no binary. There's no dividing line under the classic mono/poly definition, it's a gradient spectrum ranging from "fleeting thought" to "overriding purpose in life". Aella has written about how the 'restrictions' axis also falls along a spectrum (poly couples often have rules on condom use, emotional boundaries, or not fucking your partner's dad) which means it's not immune from her own criticism.
Overall I have a very high opinion of Aella's integrity and have no reason to believe she's intentionally duplicitous, but the re-definition appears motivated by propaganda purposes. She's very transparent about believing polyamory to be the more virtuous path in contrast to monogamy (as is her right!), and it's often useful to use language to influence social dictate, but no one has to agree with accepting terminology with baked-in beliefs. Remember how protestors against the Dakota Access Pipeline insisted they be referred to as 'water protectors'? Given the negative connotations attached to promiscuity (which, as a former slut myself, I neither share nor endorse) there appears to be an aversion to advertising 'polyamory' too much under the "wanting multiple partners" framing. Instead, it's marketed under the much more palatable "not wanting to restrict others" framing.
However, the same accusations of wielding definitions as an ideological cudgel could be fairly levied against me. She rightly pointed out that our primary concern should be the accuracy of the definition, rather than focusing excessively on avoiding ideologically charged framing.[3] When I was asked if polyamory did indeed place fewer "restrictions" on people, I said yes but as I'll expand upon in the next section, I'm retracting my answer because I don't believe we have the same understanding of the term "restriction". Otherwise I agree with prioritizing accuracy; I don't care what specific words we use so long as they're useful at conveying information to others.
The ultimate question for vocabulary choices should always be "Am I reasonably certain that my listener has the same understanding of this word that I do?" Based on the multiple reasons I outlined, the focus on 'restrictions' is too confusing and too ambiguous to pass this test.
I Want You to Want Me
Let's marinate into whether 'restrictions' is the best way to cleave the mono/poly dichotomy. Consider two scenarios:
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You are cordially invited to contribute to a vegetarian-only potluck.
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You are subject to criminal penalties under the Peter Singer world regime if you consume any sustenance of animal progeny.
The two pictures are not the same. Both, technically, describe 'restrictions', but this again flattens far too much under a single banner. The aforementioned "don't fuck my dad" rule used by poly couples is also a 'restriction', but it would be absurd if that's enough to void their polyamorous certification.
When Jonah Hill asked his then-girlfriend surfer Sarah Brady not to post bathing suit photos, he framed it as expressing his relationship "boundaries". Oh but isn't that just what a controlling abuser would say to whitewash his yoke? There's no bright line rule here, you can't delineate between "boundaries" and "abusive control" without having to conjure up an array of debatable and interpretative factors.
I was once in a monogamous relationship where my partner then expressed a strong desire to date other people. I had no desire to get in her way or otherwise be a hindrance, so I said "Ok!" and promptly broke up with her. I didn't tell her what she wasn't allowed to do, instead I unambiguously expressed my own interest in not wanting to be in a relationship with someone who has an active desire to fuck other people. Would skipping out on a vegetarian-only potluck because you're tired of quinoa count as a 'restriction' imposed upon the host? Under a very strict literal reading, sort-of-yes, but it's an incoherent use of the term that confuses more than clarifies.
The poly brigade's retort about how everyone wants to fuck other people doesn't fly. Granting that this desire widely exists, it does so on a spectrum of intensity. I've often found myself swept up by the nascent intoxication of a new situationship where the thought of pausing for a define-the-relationship talk seemed almost alien. My Tinder matches would be left fallow and rotting on the vine, because why bother? I want my partner to have the same overriding desire for me; not for them to reluctantly forgo others because of my say so. If I had to utter that kind of proclamation, it's probably too coercive.
When the county clerk stamped my marriage license recently, my touch neurons did not suddenly get cryptographically locked to only respond to my wife's DNA. I'm not pursuing hot people not because I somehow lost the ability to notice them, and I'm not fucking anyone else not because my wife forbids me, but because I just don't care to. My wife certainly could double-explicitly prohibit me from doing so, but that would be the equivalent of her forbidding me from taking up fly-fishing.
I wonder if there's a lack of imagination from both camps. I've had several casual dating periods, so I have some insight into the thrill and excitement of rotating through flings like a flipbook. But when I see my poly friends juggling a stable cadre of full-blown secondary relationships in addition to their primary, I feel vicarious exhaustion. I admit it, the energy devoted seems so excessive that I wonder how much of it is performative, motivated by the desire to showcase their apparent enlightenment,[4] or maybe it's to ensure they have enough board game partners. On the flip side, I wonder if they believe my assertions that I'm not interested in pursuing others to be genuine, or whether they assume I've been browbeaten by the dominating cultural narrative into accepting my imaginary handcuffs.
To be fair, the prevalence of cheating is very strong evidence that monos (especially men) are indeed dishonest about their desires for extra-relationship fucking, either because they're lying to themselves, or because they're willing to abandon this desire as a practical concession to finding a partner in a monogamy-dominated landscape. Honesty is good, and so I would heartily recommend polyamory to anyone who (for whatever reason) is irresistibly drawn towards breaking their exclusivity pledges. All this is also a strong indicator that polyamory is socially disfavored, so this potentially justifies using deliberate vocabulary re-framing as a balancing counter-force.
What is Trust? Baby Don't Hurt Me
Moving from the semantics of polyamory to its practical implications, let's delve into the pivotal roles of trust and jealousy in these relationships. The foundational problem we have to deal with here is humans' persistent proclivity towards lying, which remains because of how often it's personally advantageous to do so. Naturally, humans also developed a countervailing proclivity for detecting and dissuading dishonesty as a safeguard. It's impractical to live ensconced within an intractable and perpetual barrier of suspicion, so we have measures to let our guard down selectively.
Ideally we build trust over time through shared experiences and history, but there's also potential "trust shortcuts" such as costly signals and commitment rituals.[5] Basically, any actions that someone is unlikely to undertake unless they were genuinely committed count. In the context of romantic relationships, these can range from the extravagant (atrociously expensive weddings) to the mundane (introducing a new girlfriend to your friends). Though far from infallible, shortcuts retain some usefulness because the traditional method of building trust can be unreasonably and agonizingly slow.[6]
This nicely segues into the role of jealousy. It's considered a negative and disdainful emotion, and fair to say that the polyamorous are particularly proud of the cultural technology they've developed for dealing with it, but I want to make sure we're talking about the same thing here. If Alice sees her boyfriend Bob talking to Cindy and feels [negative emotion] in response, it could be a result of pure resentment (Alice hates seeing Bob receive attention from other women) or it could be a reasonable response to a lack of security and assurance (read: lack of trust). The problem is both variants (call them resentful vs rational) get shoved into the same "jealousy" laundry hamper without efforts to distinguish the two, and what would otherwise be a reasonable emotional response gets dirtied by proximity.
Consider another example with polyamorous couple Doug and Emma. They've been each other's primary partners for years and have mutually disclosed social security numbers. One day Emma jets off to Europe with a new fling without telling Doug, who only finds out about this through her LinkedIn updates. Upon her return she continues exhibiting increasingly detached behavior, spending less time with Doug and cancelling plans at the last minute with irreverent excuses, all while reassuring him he remains her top priority in life. Doug is no spring chicken and deploys an arsenal of polyamory tools as remedy (open communication, compersion seances, and even a meticulous line chart of their decreasing time together) but nothing works. Emma continues to reaffirm how important he is to her via garbled late-night texts, and Doug continues to feel [negative emotion].
Would anyone dispute Doug has valid reasons for trusting Emma less? Yes, she says he's a priority, but her actions indicate otherwise. He has ample reasons to believe Emma is gasp lying. Maybe she's not, perhaps this is all just a misunderstanding with an imminent denouement. But if Emma was indeed lying, what can be done to maintain the relationship? After such a grievous betrayal, it wouldn't be tenable for Doug to carry on as usual, nor would it be practical to proactively commit to the uncertainty of rebuilding trust via the traditional slow-burn accumulation. Only trust shortcuts --- within the grand lineage of romantic serenades perhaps --- are likely to be viable options here, if anything.
I never expected any of the above to be a point of contention, but it was! Again, humans routinely lie, especially about sex and relationships. Emma could have been lying to Doug about her commitment to their relationship just to stall for time until she meets an upgraded Doug replacement. Poly relationships commonly organize around having a primary partner, and even relationship anarchists necessarily express a hierarchy through the inescapable constraints of the attention economy, all of which are potential opportunities for trust to erode. Around 25 mins mark, I asked my poly interlocutors how to ensure someone isn't lying to you, their responses were a variant of "just trust them bro". Ok, but how? The point here is that trust cannot appear out of thin air, it has to come from somewhere,and this is true regardless if it's a polyamorous or monogamous relationship!
This is another area in particular where I worry that a polyamorous framing saturated with righteousness could lead one astray. If you've inculcated your lifestyle as inherently virtuous because "jealousy" is either non-existent or adequately contained, there's a risk of aligning all suspicion (not matter how reasonable) as inherently sinful or indicative of moral failing. Sometimes it's good to distrust.
We should use words that other people know the meaning of. We should avoid creating unnecessary ambiguity by flattening distinct phenomena under the same banner. Prioritizing clarity is particular important when dealing with something as complex as human relationships, whether polyamorous or monogamous.
Now, let's play some board games.
[1] Throwback to 2020 where I also discussed polyamory with Aella on episode 12 of The Bailey podcast.
[2] If you only trust our future robot overlord, here's also what chatGPT said: "It's fair to say that the definition of polyamory you provided is not widely accepted in its entirety. Polyamory, as commonly understood, involves more than just not forbidding extra-relationship intimacy. It typically includes aspects of ethical, open, and consensual engagement in romantic or sexual relationships with multiple partners. The definition you've provided focuses primarily on the aspect of non-restriction, which is a part of polyamory but doesn't encompass its full scope."
[3] At the 16mins mark, Aella said "I think the question should not be 'Are we trying to avoid virtuous framing?' but rather 'Is this accurate? Are poly people in fact placing fewer restrictions on their partners?'"
[4] I've also previously written in Cuckoldry as Status Jockeying about concerns with the way polyamory is framed socially, and how that might discourage transparency about one's desires.
[5] I take responsibility for contributing to the confusion with how I discussed 'costly signals' in relationships. The classic example of a costly signal is the peacock's extravagant tail, a reliable indicator of overall fitness precisely because it's so gratuitously expensive to maintain. When I described 'commitment rituals' as 'costly' on the podcast, I meant it in the sense that they impose social costs. Public declarations like pledge ceremonies and weddings "work" not because they physically prevent the oath-takers from subsequently breaking their commitments, rather the aspiration here is the pomp and circumstance of the ritual comes laden with sufficient social pressure to encourage ongoing compliance.
[6] The galaxy-brain take here is to tally up all the "trust shortcuts" we grudgingly rely upon on a daily basis and imagine how you'd cope without them: online product reviews, uniformed police officers, food safety inspection grades on restaurant windows, bank logos on ATMs, and on and on. The point is not that these shortcuts are infallible, they can and are indeed frequently exploited, but that's not enough to throw them all away.
An update, largely for the sake of visibility, about my post below on January 6th defendants.
I received a number of very helpful responses pointing out some things I missed. I was wrong when I said @anti_dan 's claim about J6 defendants "held without bail for wandering in" was fictitious. At least three different people reasonably fit this qualification: Timothy Louis Hale-Cusanelli, Karl Dresch, Michael Curzio, and possibly others. All three had their bail denied, meaning they were going to remain behind bars no matter what, and no amount of money would get them released ahead of trial. Dresch and Curzio ended up getting released about 6 months later after pleading guilty to misdemeanors. Hale was convicted at trial and was sentenced to 48 months of prison.
The reasons why their pretrial release was unconditionally denied are not that surprising, especially in light of how unforgiving US legal standards are in this area. Hale was frantically trying to destroy evidence by deleting his accounts and disposing of clothing & javelin flag pole. His coworkers at the naval weapons base he had a security clearance for thought he was crazy because he'd regularly show up to work with a Hitler mustache and make holocaust jokes. Curzio spent 8 years in prison for attempted 1st degree murder conviction, and within two years of his release he perhaps demonstrated some poor judgment by traveling from Florida to be on the frontlines of the J6 riot. Dresch is someone whose case I wrote about before within the discussion of pretrial detention. He had bad criminal history (multiple law enforcement obstruction charges, and a number of felonies from when he led cops on a high-speed chase reaching speeds of 145mph) and despite his felony convictions, he was caught with multiple guns after J6.
So going back to @anti_dan 's original claim:
That you can be held without bail for wandering in, without them even proving that you knew it was illegal to be there (for most people the barricades had been long abandoned by the incompetent, Pelosi directed, Capitol Police), is Eugene Debbs shit.
In case you don't know, Debs was a prominent and unusually eloquent socialist (Freddie DeBoer is a big big fan) who was sentenced to ten years for sedition for protesting America's participation in WW1. If you've ever heard the phrase "can't yell fire in a crowded theater", it's because that was used by Oliver Wendell Holmes to justify the imprisonment of another socialist WW1 protestor in Schenck v. United States, and so Debs' SCOTUS appeal was rejected for the same reasons. First Amendment jurisprudence was pathetic back then.
I don't know if anti_dan still holds their belief on comparing some J6 defendants to Debs, but now that we have some identifiable cases of people who were held without bail for wandering in, perhaps this can prompt a more fruitful discussion on the legitimacy of this comparison. Some questions for everyone: Are you surprised by the reasons why these people were denied pretrial release? Is denial of their release indicative of politically-motivated retribution?
Back in August 20 people were arrested in Florida as part of a sting operation on "voter fraud" heavily publicized by Gov. DeSantis. Each person had a felony conviction and voted, but I wrote about how each person was specifically told by election authorities that they were legally able to vote. The confusion stems from how felony voter right restoration was implemented in Florida, where the state insisted that everyone had to pay all outstanding fines while at the same time admitting it had no way of keeping track of all these fines.
A small update since then is that bodyworn video footage of the arrests has been released. The language in an arrest warrant issued by a court usually says something along the lines of "To every peace officer of blah blah, you are commanded to..." which means the decision to arrest is not discretionary. I've watched thousands of arrest videos by now and while the modal arrest is far less eventful that what the typical viral incident would have you believe, it's still an event that is inherently antagonistic. After all, the cop is placing handcuffs on you and taking you to jail, with serious retribution if you impede the process in any way.
I have never seen cops anywhere near as apologetic about an arrest as in the videos just released from Florida. They caught these people unaware outside of their homes, and as they explain the arrest warrant they pepper every sentence with "sir" and "m'am". When they explain that they're about to be handcuffed, they use "unfortunately" as a prefix. Thanks to qualified immunity along with the general deference courts give law enforcement, each cop would have had the legal authority to leg sweep each person and slam them to the ground if they displayed anything that could remotely be construed as resistance. Instead they take the time to calmly explain the process, including when they would likely be released, in a bid to secure as much of their cooperation as possible through what is understandably a distressing event for any person to go through. They're treated with astounding compassion. The people arrested start talking (of course they do), with one explaining how he was told he could legally vote, and the cop responds with "there's your defense". I've never seen a cop highlight legal defenses to the person they just arrested.
DeSantis is a Yale/Harvard educated former federal prosecutor. I would assume based on his background that he's not an idiot, and that he knows how criminal prosecutions work. If I keep my cynic hat on, DeSantis chose to make a big show of these arrests entirely as a means to appease the portion of the electorate that still believes the 2020 election was stolen and remains angry no one has gotten punished. But even so, what exactly was the follow-up supposed to be? Whatever charges one would levy against these people would require that you prove beyond a reasonable doubt that they knew they weren't allowed to vote but voted anyway, and how would any prosecutor counter the fact that election authorities approved their registration? What this does also just brings more attention to the confusing labyrinthian mess around court fines the state of Florida intentionally created as a hurdle for felons pursuing voter right restoration.
If the cops conducting the arrest are expressing this much skepticism about the charges, you can surmise how a random jury pool would react. These charges were patently frivolous from the very start but setting that aside they don't even make sense from the political grandstanding perspective. Bewildering.
Happy Birthday Elon Twitter
We're almost at the one-year anniversary of Elon Musk taking over Twitter X. How have your predictions fared? I'll answer below.
The 11th Circuit put the whole Mar-a-Lago Special Master saga to bed last week. You can read the unanimous opinion here (for those counting, the judges were two Trump appointees and one Bush).
This outcome wasn't surprising at all, especially with how oral argument went. As background, the FBI raided Trump's home in Mar-a-Lago because they convinced a federal magistrate that they're likely to find evidence of criminal activity there. They were right on that front, and they recovered various classified/restricted documents in Trump's possession. Although it's not clear why Trump was so stubbornly enthusiastic about holding on to the documents, there doesn't seem to be much evidence thus far that the documents in question were particularly damning/dangerous, nor that he was holding on to them to sell them or whatever. Nevertheless, the warrant means the FBI lawfully (distinct from morally/ethically/correctly/whatever) seized the property pursuant to a criminal investigation.
If the government takes your shit because they had a warrant, the recourse available to you is virtually non-existent. The traditional avenue available within a criminal investigation is to wait for the indictment and then challenge the legality of the search and seizure through a suppression hearing. If you can convince a judge that the property was illegally obtained, your remedy is that the government is prohibited from using the property as evidence against you. Very often, this destroys the government's case against you and the charges get dismissed. Only after the criminal saga is over can you ask for your stuff back from the government. I routinely help my clients get their stuff back once their case is over, including things like firearms and (my favorite) a small jar of weed. Sometimes I just contact the detective directly, sometimes I need a judge to sign an order. It's routine.
But what if you want your stuff back before even an indictment? The typical answer is that you are shit out of luck, because the government is presumed to be entitled to use property they lawfully took from you. But there are some limited exceptions. In the Richey v. Smith case, an IRS special agent stopped by Richey's office and asked to examine some business records and the guy complied (no warrant, and no Miranda warnings). But after talking to an attorney, Richey changed his mind and asked for his stuff back and the IRS said they'll hand it back once they're through with them. The district court initially ruled they lacked jurisdiction to order the government to return the documents, but on appeal is where we get the "Richey four-factor test". That ruling says that courts can have what is termed "equitable jurisdiction" provided the person asking for their stuff back satisfies every factor:
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Did the government act in a "callous disregard" of the person's rights?
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Does the person have an interest in and need for the property?
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Will the person be irreparably injured by not having his property back?
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Does the person lack other legal remedies for not having his stuff?
This is what Trump was asking district court Judge Canon to do. There were several problems with this request, chief among them that unlike the Richey case, the government had a warrant for Mar-a-Lago. The other problems were that Trump's lawyers didn't even try to hint at satisfying any of the four-factor test (See starting on pg 12 of the opinion: Did the government act in a "callous disregard"? No, because they had a warrant. Does Trump need his property back? No, because Celine Dion pictures are not a priority right now. etc.). The closest Trump's lawyers got to a coherent argument was when they vaguely intimated (without saying it outright) that Trump's circumstances were special because he is a former president.
Around the 21:00 mark of oral argument, the judges asked James Trusty if any other person whose property was seized during the course of a criminal investigation would have access to the same remedy Judge Canon gave Trump, and Trusty swallowed the pill and said yes. I'm definitely in favor of having higher scrutiny levied on government search and seizure, but this would be a completely bonkers departure from the current status quo. Nobody likes having their stuff taken and being the subject of a criminal investigation! Applied consistently, the courts would be flooded with these requests and it would become near-impossible to prosecute anybody.
As the court opinion says:
In considering these arguments, we are faced with a choice: apply our usual test; drastically expand the availability of equitable jurisdiction for every subject of a search warrant; or carve out an unprecedented exception in our law for former presidents. We choose the first option. So the case must be dismissed.
As far as I can tell, James Trusty is a competent attorney with the requisite experience to litigate issues at this level but he just fell flat on his face hard. No amount of legal acumen can compensate for having a client who insists on unreasonable demands and tactics.
What are the limits of the weak man?
Note: Although this post cites specific real-life examples, the intent of the discussion is intended to be entirely at the meta level.
Scott Alexander's definition is apt to cite:
The straw man is a terrible argument nobody really holds, which was only invented so your side had something easy to defeat. The weak man is a terrible argument that only a few unrepresentative people hold, which was only brought to prominence so your side had something easy to defeat.
Also instructive is Bryan Caplan's gradation:
OK, what about "collective straw manning" -- questionably accusing a group for its painfully foolish positions? Now we have:
3. Criticizing a viewpoint for a painfully foolish position no adherent holds.
4. Criticizing a viewpoint for a painfully foolish position some adherents hold.
5. Criticizing a viewpoint for a painfully foolish position many adherents hold.
6. Criticizing a viewpoint for a painfully foolish position most adherents hold.
What Caplan is describing as "collective straw manning" seems to be a good scale for weakmanning's range. And lastly, consider also Julian Sanchez's disclaimer:
With a "weak man," you don't actually fabricate a position, but rather pick the weakest of the arguments actually offered up by people on the other side and treat it as the best or only one they have. As Steve notes, this is hardly illegitimate all the time, because sometimes the weaker argument is actually the prevalent one. Maybe the best arguments for Christianity are offered up by Thomas Aquinas or St. Augustine, but I doubt there are very many people who are believers because they read On Christian Doctrine. Probably this will be the case with some frequency, if only because the less complex or sophisticated an argument is, the easier it is for lots of people to be familiar with it. On any topic of interest, a three-sentence argument is unlikely to be very good, but it's a lot more likely to spread.
At least in theory, I think weakmanning should be avoided, but I struggle with how to draw the line exactly. If your goal is to avoid weakmanning, there's at least two axes that you must consider:
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All the possible arguments for position X, ranked on a spectrum from least to most defensible.
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All the possible arguments for position X, ranked on a spectrum from least to most *representative *of believers in X.
Weakmanning is not much of an issue if you're arguing against a single individual, because they either endorse the particular arguments or not. You can't showcase the error of one's ways by refuting arguments they never held.
But generally we tend to argue over positions endorsed by many different people, where each person may differ with regard to which argument they either advance or prioritize, so what should count as "representative"?
For example, many people believe in the theory of evolution, but some believers do so under the erroneous belief that evolutionary change occurs within an individual organism's lifespan. [I know some smartass in the comments will pipe up about some endangered tropical beetle or whatever does demonstrate "change-within-lifespan" evolutionary changes. Just remember that this is not an object-level discussion.] If you use a crude heuristic and only poll relevant experts (e.g. biology professors) you're not likely to encounter many adherents of the "change-within-lifespan" argument, so this could be a decent filter to narrow your focus on what should count as "representative" for a given position. This is generally an effective tactic, since it helps you avoid prematurely declaring victory at Wrestlemania just because you trounced some toddlers at the playground.
But sometimes you get a crazy position believed by crazy people based on crazy arguments, with a relatively tiny minority within/adjacent to the community of believers aware of the problems and doing the Lord's work coming up with better arguments. InverseFlorida coined the term "sanewashing" to describe how the meaning of "defund the police" (DTP) shifted [TracingWoodgrains described the same dynamic with the gentrification of /r/antiwork. Credit also to him for most of the arborist-themed metaphor in this post.] to something much more neutered and, correspondingly, much more defensible:
So, now say you're someone who exists in a left-adjacent social space, who's taken up specific positions that have arrived to you through an "SJW" space, and now has to defend them to people who don't exist in any of your usual social spaces. These are ideas that you don't understand completely, because you absorbed them through social dynamics and not by detailed convincing arguments, but they're ones you're confident are right because you were assured, in essence, that there's a mass consensus behind them. When people are correctly pointing out that the arguments behind the position people around your space are advancing fail, but you're not going to give up the position because you're certain it's right, what are you going to do? I'm arguing you're going to sanewash it. And by that I mean, what you do is go "Well, obviously the arguments that people are obviously making are insane, and not what people actually believe or mean. What you can think of it as is [more reasonable argument or position than people are actually making]".
Keep in mind that this is not an object-level discussion on the merits of DTP. Assume arguendo that the "sanewashed" arguments are much more defensible than the "crazy" ones they replaced. If someone were to take a position against DTP by arguing against the now obsolete arguments, one of the sanewashers would be technically correct accusing you of weakmanning for daring to bring up that old story again. This fits the literal definition of weakmanning after all.
As Sanchez noted above, for most people for most positions, intuition predates rationality. They stumble around in the dark looking for any sort of foothold, then work backwards to fill in any necessary arguments. Both the sanewashers and the crazies are reliant on the other. Without the sanitization from the hygiene-minded sanewashers, the position would lack the fortification required to avoid erosion; and without the crazy masses delivering the bodies and zeal, the position would fade into irrelevance. The specific ratio may vary, but this dynamic is present in some amount on any given position. You very likely have already experienced the embarrassment that comes from a compatriot, purportedly on your side, making an ass of both of youse with their nonsensical arguments.
If your ultimate goal is truth-seeking, weakmanning will distract you into hacking away at worthless twigs rather than striking at the core. But sometimes the goal isn't seeking truth on the specific position (either because it's irrelevant or otherwise already beyond reasonable dispute) and instead the relevant topic is the collective epistemological dynamics [I dare you to use this phrase at a dinner party without getting kicked out.]. InverseFlorida's insightful analysis would not have been possible without shining a spotlight on the putative crazies — the very definition of weakmanning in other words.
Here's the point, at last. Normally someone holding a belief for the wrong reasons is not enough to negate that belief. But wherever a sanewasher faction appears to be spending considerable efforts cleaning up the mess their crazy neighbors keep leaving behind, it should instigate some suspicion about the belief, at least as a heuristic. Any honest and rational believer needs to grapple for an explanation for how the crazies managed to all be accidentally right despite outfitted — by definition — with erroneous arguments. Such a scenario is so implausible that it commands a curious inquiry about its origin.
It's possible that this inquiry unearths just another fun episode in the collective epistemological dynamics saga; it's also possible the probe ends up exposing a structural flaw with the belief itself. In either circumstances, a weakmanning objection is made in bad faith and intended to obfuscate. Its only purpose is to get you to ignore the inconvenient, the annoying. You should pay no heed to this protest and continue deploying the magnifying glass; don't be afraid to focus the sun's infernal rays into a burning pyre of illumination. Can you think of any reasons not to?
Making fun of stupid people for being stupid is sneering.
Intelligence is not the only relevant axis here. I represented someone who had an IQ of around 60-80 and he was one of my favorite clients ever. He got dinged on a DUI and was super respectful and always on time to our meetings, and I really felt for him when he expressed fear and earnest confusion about why he was in trouble. He was verifiably the least intelligent client I've ever had, but he never lied to me or the cops ("Yes I was drinking tonight sir, I am so sorry sir, I am so sorry sir.") and except for that one case he just carried on his life working as a nighttime janitor.
The clients I laugh about above also lack intelligence but to a lesser degree that the janitor. What really sets them apart is their dishonesty combined with the baseless confidence that deludes them into thinking they can successfully pull off their cons.
Fascinating article on the apparent controversy of naming a telescope after James Webb, former head of NASA throughout the 60s (content warning: NYT).
Broadly speaking, Webb is accused of anti-gay bigotry. There does not appear to be any dispute that the US government, as part of investigating federal employees who were suspected of being Communists during the red scare, also fired employees accused of being gay (estimated to be around 5k-10k total over 20 years). The origin of tying the accusation directly to Webb appears to have been borne out of a misreading:
But as the telescope neared completion, criticism flared. In 2015, Matthew Francis, a science journalist, wrote an article for Forbes titled “The Problem With Naming Observatories for Bigots.” He wrote that Mr. Webb led the anti-gay purge at the State Department and that he had testified of his contempt for gay people. He credited Dr. Prescod-Weinstein with tipping him off, and she in turn tweeted his article and attacked Mr. Webb as a “homophobe.” Those claims rested on misidentification and that portion of Mr. Francis’ article has been deleted without notice to the reader. Mr. Francis declined an interview. As Dr. Oluseyi discovered and NASA’s report confirmed, it was not Mr. Webb but a different State Department official who oversaw the purge and spoke disparagingly of gay Americans.
So someone made a claim and someone else looked into that claim and conclusively found the evidence lacking. Research isn't easy and it's reasonable to expect some mistakes, and I find nothing embarrassing or humiliating about just admitting error. But instead of just conceding their belief rested on a faulty premise, the Webb-is-a-bigot crew refused to let go of their favored conclusion and went searching for other reasons why they were right all along.
In 1953, President Dwight D. Eisenhower signed an executive order that essentially barred gay Americans from federal employment. It applied to all federal agencies and remained in effect throughout the 1960s, when Mr. Webb led NASA. In 1963, police arrested a NASA budget analyst, Clifford Norton, in an anti-gay sting in Washington. He was forced out of his job. Critics say Mr. Webb stood silent. Mr. Odom’s report for NASA, however, found no evidence Mr. Webb knew of this case in an agency of many thousands. In any event, he would have had no good option, said James Kirchick, author of Secret City: The Hidden History of Gay Washington. “It is unimaginable that a high-level functionary would have stepped in and blocked a broad federal law that applied to every agency,” he said.
And of course, people tried to come up with other reasons why a telescope should not be named after Webb:
Sarah Tuttle, an astrophysicist at the University of Washington, characterizes the question of whether Mr. Webb was a homophobe as unanswerable and a distraction. The point, she said, is that the bar should be set higher. Previous telescopes were named after physicists and astronomers — Edwin Hubble and Subrahmanyan Chandrasekhar. Why not name in that tradition? “This controversy should restart the discussion about why on earth this telescope is named after him,” said Jason Wright, a Penn State astrophysicist who signed the critics’ petition.
Things got especially dark for Oluseyi, the guy who fact-checked the original claim. First they claimed his fact-check was an ill-disguised attempt to justify historical homophobia, then rumors spread around academia of some sexual harassment and mishandling federal funds. And so on.
So that story is entertaining on its own right, but it's also an interesting examination of the best ways to respond when someone points out an error of yours. Speaking for myself as someone who jumps at the opportunity to self-label as an egotistical narcissist, it seems like adopting a regular habit of admitting mistakes is plainly self-serving. It's almost a cheat code for how well it can bolster one's credibility, and I don't understand why it's not more common.
The basic contours of being motivated to save face are obvious enough, sure, but the part that continues to be absolutely bewildering to me is that dogged stubbornness only makes you look worse! I'm guessing there must be some other benefit here (assuming, of course, people who refuse to admit error are behaving remotely rationally) but I can't understand it.
It's well established that there has long been a concerted effort by the left to narrow the definition of racism to ONLY apply when the discrimination is done against an oppressed racial minority. Under the revised definition, "anti-white racism" cannot be a thing. Although this redefinition may be fashionable among certain circles, it has never been reflected in anti-discrimination law within the United States. All the relevant civil rights laws I am aware of prohibit discrimination on the basis of race, full stop, without any qualifiers. Yet the "racism = power plus prejudice" crowd appears to be under the mistaken impression that discrimination against white people is legal.
A significant portion of the contemporary DEI training curricula is blatantly anti-white, and I've been curious why there have not been more legal challenges on that front. Part of it, I assume, is that any plaintiff who takes on this role will be subjected to a vicious public campaign of hate, as happened with Abigail Fisher in 2016, derided with nicknames like "Becky with the bad grades" and so on.
We haven't really had a case that dealt with the particular type of DEI training that became prominent after the 2020 summer protests/riots. One lawsuit recently filed in Seattle might be an interesting test case for this. Robby Soave covers this:
According to Diemert, a supervisor berated him for refusing to step down and yield his job to a person of color. He says he was asked, "What could a straight white male possibly offer our department?" And he says he was frequently made to participate in RSJI training, which involved insulting games and activities designed to address his alleged complicity in white supremacy.
[...]
RSJI's explicit mission statement was to inject race-based considerations into government work. One document summarizing the initiative's priorities listed colorblindness, not as a positive thing, but as a hindrance to be overcome. Another described colorblindness as "centering whiteness." Diemert says that his former colleagues took this mission very seriously. In fact, he discovered that one coworker had rejected a qualified white applicant from a public assistance program specifically because of the applicant's race. "I asked her, well, this doesn't make sense to me," he recalled. "Why did you deny this person? And she said, well, because they have white privilege." Diemert says he reported the matter to his supervisor—it was, in his view, obvious racial discrimination—but nothing was done about it.
I don't believe the legal system is a panacea, but it can offer a useful contrast in terms of how arguments that may be popular on Twitter get handled inside a courtroom. A related example that comes to mind was when a leftist activist tried to use a copyright lawsuit as a pretext to punish Sargon of Akkad but instead lost badly and was forced to pay $38k in attorney's fees. So I'm excited to see a real life lawyer try to defend Seattle's anti-white training in court. Should be fun.
One of the nefarious stratagems the Democratic Party engaged in this election was to intentionally boost and generously fund far-right Republican candidates over their more moderate opponents in the Republican primaries. This potentially risky gambit was intended to allow Democratic candidates to coast to an easy victory by knocking out the moderate Republican option from the general election. This strategy was not just an after-thought, as the Dems put in a ton of resources into the effort. In Maryland for example, the Dems spent $1.2 million on Dan Cox's campaign, more than twice the money the candidate raised at that point. I thought then and still think this is dishonorable and contemptible behavior, but from a pure power play perspective, I concede it was a sound tactical decision. All six Republican candidates (3 governors, 1 senator, 2 house) targeted by this play lost the general election, five of them by double-digit margins.
It's important to emphasize that the Dems didn't force Republicans to do anything. All they did was dangle the candidate's Republican bona fides with "oh no it sure would be terrible if this person that loves Trump and still thinks the election was stolen ends up being the nominee oh no" and voters agreed with them. Given how much of a resounding success this was for the Dems, I anticipate we'll see it again in the future.
If so, can the GOP do anything to immunize itself from this effort? Should it even try to? Also, two can play at this game but is this strategy something the GOP can successfully levy? Dems have no shortage of total crazies (as Libs of TikTok can demonstrate) after all. What would that look like and what are some candidates that come to mind?
2020 stolen election time! There's been some rather big developments with my favorite cute little hobby horse. I haven't had the time to make a deep-dive write-up, but it's has already been extensively reported on elsewhere (e.g. this post by Jacob Sullum). To summarize, Dominion voting systems sued Fox News (and Newsmax, and OAN) for defamation. Dominion has been past the discovery stage for more than a year now but their filings only recently became public and, no way to say this lightly, it's been extremely humiliating for Fox. Tons of text messages from the big names (Carlson, Hannity, etc.) either talking shit about how crazy Sidney Powell and Rudy Giuliani are, or (especially for Lou Dobbs and Maria Bartiromo) credulously accepting and repeating the stolen election theories.
One especially funny example involved Sidney Powell credulously forwarding an email to Bartiromo from a complete rando claiming they had "Election Fraud Info". In that same email, the anonymous rando claimed that they got their information from their dreams, that the wind tells them they're a ghost, and that Justice Scalia was murdered during a human hunting expedition. As evidenced by the filings she submitted to court, Powell's skepticism faculties appear to be basically non-existent, and the fact that so many people took her seriously at first is a good illustration of the pitfalls of siloed reasoning.
Maybe the most damning revelation of how Fox was operating (from both a legal liability as well as a journalistic ethics perspective) is how they treated their fact-checking process. When Fox reporter Jacqui Heinrich tweeted on November 12 that "there is no evidence that any voting system deleted or lost votes, changed votes, or was in any way compromised" Carlson texted Hannity "Please get her fired. It needs to stop immediately, like tonight. It's measurably hurting the company. The stock price is down. Not a joke." If Dominion needed to prove the actual malice (and it's not yet clear if they would need to) in a defamation case, they couldn't have asked for better evidence.
There isn't much for me to say that I haven't said before. My operating theory has long been that some people seemed to earnestly believe the crazy theories they were spouting about Hugo Chavez or whatever (e.g. Powell, Giuliani, maybe Dobbs) while many others were just pretending to entertain it because it was in their best financial interests (e.g. Carlson, Hannity, Murdoch, etc.) and the text messages confirm this. To Carlson's credit though, he endured a lot of negative pushback from his criticism of Powell.
I've already done my hand-wringing on how the media seems to love shooting itself in the foot, except it was framed in context of how liberal outlets fucked up the Covington debacle from four years ago. The Dominion lawsuit demonstrates the problem behind audience capture; Fox pundits and reporters had to deal with a credible financial pressure to cater to the crazy fringes of their audience for fear of losing them to their less scrupulous competitors. If so, it would be a demand-side problem. I'm not sure if the problem with liberal media fuck-ups follows the same framework, but I'm open to arguments. My general impression there is that the call is coming from inside the house: liberal journalists too afraid of their fellow cohort to break ranks. I suppose a good test-case scenario would be to see how NYT's current "trans youth reporting controversy" plays out. They obviously already got a severe amount of criticism from the activist fringe, but would a significant portion of their audience care? And if so, where would they go?
One last question: has anyone here changed their opinion on the 2020 stolen election theories?
Trump got hit by two gag orders from two different judges. The precedent in this area of law is severely underdeveloped, both because so few defendants get gagged, and of those who do very few have the resources or energy to mount an appeal. Jacob Sullum writes a great overview of the issue:
U.S. District Judge Tanya Chutkan, who is presiding over Donald Trump's trial on federal charges related to his attempted reversal of Joe Biden's 2020 election victory, yesterday imposed a gag order that bars the former president from "publicly targeting" witnesses, prosecutors, or court personnel. Trump lawyer John Lauro vigorously opposed the order on First Amendment grounds, saying it would stop his client from "speak[ing] truth to oppression." While that characterization exaggerates the order's impact, constraining the speech of a criminal defendant, especially one who is in the midst of a presidential campaign, does raise largely unsettled constitutional issues.
Chutkan's order was provoked by Trump's habit of vilifying anyone who crosses him, including Special Counsel Jack Smith ("deranged"), the prosecutors he oversees (a "team of thugs"), and Chutkan herself (a "highly partisan" and "biased, Trump Hating Judge"). "IF YOU GO AFTER ME, I'M COMING AFTER YOU!" Trump wrote on Truth Social after his indictment in this case. The next day, The New York Times notes, "a Texas woman left a voice mail message for Judge Chutkan, saying, 'If Trump doesn't get elected in 2024, we are coming to kill you, so tread lightly.'"
So to avoid the common pitfalls in discussions like this, set aside Trump for a moment. Should judges have any authority to impose gag orders? If so, what limits should be in place? After working out the questions in theory, how does your position apply to Trump?
I think gag orders can be appropriate in a very limited set of circumstances. For example let's say a newspaper owner is charged with murder in a small town. He should always have the absolute and unrestricted right to discuss the allegations against him and mount a defense in public. There are some areas where it starts to get cloudy for me, like for example if he hires an investigator (legal & appropriate) to dig into the history of the main witness against him (legal & appropriate) and he gets his hands on her diary (potentially legal & potentially appropriate). He then spends the lead-up to the murder trial publishing massive coverage the lurid details of all her sex kinks and fantasies, which isn't implicated in the murder charges. To me this starts to look like witness tampering/intimidation, where the defendant is humiliating a witness with the intent to discourage her from giving testimony.
So my answer is here would be yes, judges can impose gag orders but they should be extremely narrow. The operating principle should be to always allow defendants to discuss the direct charges against them, including the ability to discredit witness credibility. There's a blurry line between when someone is discrediting a witness on relevant matters, and when they're just trying to make their life hell to discourage them from testifying. An example of this blurry line is what happened to SBF, where his pretrial release was revoked in part because he leaked Caroline Ellison's diary to the NYT and because he seemed to have been coordinating testimony with FTX's general counsel.
So with that out of the way, how does it apply to Trump? Judge Chutkan's order restricts him from making statements that "target" the prosecutor, court staff, and "reasonably foreseeable witnesses or the substance of their testimony". Practically speaking, it goes without saying that it's a terrible idea to talk shit about the court or prosecutor while your case(s) is pending. There are some obvious areas where Trump's commentary is inane and irrelevant, like posting a photo of a judge's law clerk and claiming she's "Schumer's girlfriend", or posting about the prosecutor's family members. Discrediting witnesses is harder to draw a clean line on, because again there's a gradient between discrediting and intimidating. I think Trump should have the absolute and unrestricted right to discuss any of his charges and discredit any evidence and witnesses against him. While I disagree with that part of the ruling, I don't know how I would rephrase that clause, and so my reaction is that in these close cases we should default to allowing speech rather than restricting it.
Edit: @guajalote changed my mind on the propriety of Judge Engoron's order prohibiting "personal attacks on my members of my court staff". I agree that criticizing government officials should always be protected, even if the speech is targeting irrelevant or uninvolved individuals. A narrower order prohibiting incitement would've been more appropriate.
I don't know how much of this was intentional on your part, but the major problem I see with your approach is how many unacknowledged assumptions you're glossing over. It all starts with what you're assuming [trait] to be. For example with race, we can boil it down to "difference in skin pigmentation" combined with "difference in societal hierarchy" and so this gives you relatively easy galaxy-brain template to play with if you were transporting this idea to another setting (e.g. "what if societal hierarchy was determined by another arbitrary aesthetic trait? Really makes you think"). To repeat what @WhiningCoil asks:
I mean, the problem is nobody knows what trans people are. Are they born that way? Is it a social contagion? Is it a fetish? A mental illness?
So yeah, what is trans? You're not explicit about it but you take it as a given that trans people are just people who happen to be somehow saddled with the wrong "birth gender" (I find this terminology extremely grating but I'll set that aside for now). You're implicitly accepting a mountain of implied assumptions here (people have a "birth gender", people can feel 'misaligned' with their "birth gender", people who feel this misalignment feel distress if they don't "fix" it, etc etc) and inevitably this will color how you approach the rest of your implementation.
On the other hand, if you believe that trans people don't exist, or rather if you believe that trans people are really just people who have fallen prey to a rigid expectation of gender stereotypes, well then that really changes things does it not?
I can think of a slew of examples of how I'd implement my understanding of transness into a fictional world. For example, let's say a world has a respected monk caste that relies on a moderately-difficult entrance exam that tests people's psychic defense abilities. As a way to designate membership within this caste, the monks get an ochre-colored glove (something something about the color used as a medium for psychic abilities). Here's Barbara, someone who has long been desperate to join the monk caste but continues to fail the entrance exam. After so many repeated failures, Barbara eventually just adopts the habit of wearing an ochre glove around town, with the goal of hoping that the people she encounters (erroneously) assume that she is part of the psychic monk caste.
There's a range of interesting dynamics that could occur which would perfectly be analogous to what we understand the contemporary trans experience to be. For example some people will see through Barbara's attempts and just humor her purely out of politeness, or maybe someone gets attacked by a mindflaying octupus and breathes a sigh of relief when they see Barbara's ochre glove only to then realize that her psychic defense abilities are actually worthless, etc etc.
You can't really start to implement these dynamics into a fictional world without a precise understanding of what it is you're implementing. And this is especially difficult with transness given the obfuscation combined with the myriad of competing theories (it's a gendered soul, it's boy brain/girl body, it's a hormone imbalance, it's just the patriarchy, etc etc)
you were grilling me like a prosecutor with very simplistic and direct questions and it felt on many occasions that you were coming at me in bad faith or with an agenda. I don't think that's what you wanted to do, but I also think you have a lot of unexamined biases.
There was no malice at all on my end, and I'm more than open to having any of my unexamined biases pointed out. My goal with asking questions is ideally to reach a point where I can pass an ideological Turing test and be able to accurately rephrase my interlocutor's position. The questions I ask therefore come from what appears to me to be either contradictions, ambiguity, or lack of evidence. I can't claim to really understand someone's beliefs or how they came to form those belifs if I gloss over that nagging curiosity. I understand that any categorization will run into limitations. I wouldn't expect the answer to my question about who is white to come with crisp demarcated lines, but I am nevertheless interested in how someone would try formulating an (imperfect) answer.
Second, I am clearly someone who is engaging in good faith in an adversarial environment, and deserve be treated entirely on my own merits, and not be spoken down to because of your interactions with past interlocuters of an ostensibly similar worldview.
You're right about this. It was wrong of me to impugn you by association and I retract and apologize for that.
You present a cogent argument for narrowly interpreting 2A. For this to make sense though, you have to interpret "the right of the people" in 2A to really mean "the right of the States" and that's when you run into big problems. If you read the rest of the Constitution and the Bill of rights, there's multiple references to "the people" and none of them make sense with that substitution. Consider 1A ("...or the right of the States peaceably to assemble") or 4A ("The right of the States to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures") or the neglected 10A which explicitly distinguishes States from the people. It seems odd to me to think that the Founders were willing to throw casual usage of the people all over the place, but when they wrote 2A they meant it in this very specific way and didn't bother putting an asterisk or anything.
I think it's reasonable for my clients to be suspicious of my motivations or how enthusiastically I'd represent them. But I brought up their poor theory of mind in context of how good they think they are at lying, not about their opinion of me.
I know it is a light hearted article, but the whole spirit of sneering and literal anecdotes of mockery and sarcasm with these people is good evidence that you might treat them psychologically differently. Maybe you really really would never work a little harder, polish a little more, fight a little better for a client you were sympathetic too, but that hardly seems deluded to assume.
Well to be clear if I make any distinction among my clients, it's between the honest and the lying (to me), not between the innocent and the guilty. The clients that lie to me waste my time and fuck themselves over and (if it persists past the point of funny) personally offends me. I've had to withdraw from cases many times, and by far the most common reason is client dishonesty. If someone's dishonesty ever reaches a level where it would affect how well I represent them, I bounce. Still though, I'm generally desensitized to clients lying to me because it happens so routinely that it's background noise. Any sneering you identified above was about how pathetic their attempts at lying were. I got along great with Marcel for the most part, and even Ivan was one of the few clients who took the effort to send me a thank you letter from jail. Their lying was too pathetic to be enraging.
Besides the issue of honesty, I definitely like some clients more than others, but it's hard to think about when that actually matters regarding their legal case. I represented a teenager I felt bad for and I knew he was going to be in jail for at least several months, so I spent my own money buying books on meditation and self-improvement. I also had a client who was a unicorn in that she had been homeless for years before ever getting arrested and I did whatever I could on the clock to get her connected with social services. Overall, someone's legal outcomes are beyond my control unless I'm somehow intentionally sabotaging a case. And yeah, I get how inscrutable the rules about attorney-client confidentiality might be to a newbie, but generally my clients are repeat customers and know the deal.
Yes I think you are correct. My comment was just about boring DUI cases, I didn't mean to imply that individual lawyers made no difference in all instances.
I myself tend to get some really generous plea offers. I have no idea exactly why that is the case, but I did have a jury trial where one of the stunts I pulled was calling the prosecutor to the stand as a witness (in front of the jury) and I somehow also convinced the judge to allow it.
Joe Biden apparently has been using at least three pseudonyms in email communications that mixed family & government business. A legal nonprofit group filed a FOIA request more than a year ago and the National Archives said it found potentially 5,400 emails but has yet to release them.
The closest scenario I can think of was Mitt Romney using the name "Pierre Delecto" in order to maintain a lurker Twitter account, which seems whatever. Trump is also quite fond of pseudonyms. Is there any possible innocent explanation for why Biden would use a pseudonym when discussing government business? I can't think of one. Obama defended the practice when members of his administration got caught doing it but it seems very unconvincing with the existence of email filtering:
The Obama administration defended using alternate government email addresses as necessary for high-level political appointees since the flood of emails to their public inboxes made those accounts unreasonable to manage.
At a 2013 press conference, then-White House press secretary Jay Carney assured reporters that "this is a practice consistent with prior administrations of both parties, and, as the story itself made clear, any FOIA request or congressional inquiry includes a search in all of the email accounts used by any political appointee."
I agree with the commentators that dispute calling Uber a fraud. Further, you also gloss over just how much of a legal grey area they operating in when they started. New York City is famous for its highly restricted taxi licensing, but even there you've always had the ability to schedule a pre-arranged ride through private livery drivers. This was referred to as "black car service" because the market tended to favor high-end vehicles driven by dressed-up chauffeurs. The big advantage for a taxi license was the ability to pick up customers through street hails or cabstands, and so there wasn't much of a conflict or overlap between the two markets. They existed more-or-less in harmony for decades because "calling ahead" was too much of a pain in the ass and too bougie to be a threat to the taxi industry.
Obviously that changed with smartphones. Suddenly the ability to "call a car" became way way easier, and taxis had the right to worry but they couldn't do shit about it. The regulations that allowed pre-arranged rides existed for decades did not have a "unless pre-arranging gets too easy!" clause. On top of that, Uber's business model had additional layers of protection because of their defense of "We don't own or operate any 'taxis' that's crazy, we just connect you with 'drivers' who will take you places". Taxi companies desperately tried to sue Uber for numerous violations, but they lost every single lawsuit.
Earlier this year, the Indian government asked Twitter and YouTube to take down a documentary critical of Prime Minister Narendra Modi. Both complied. Two weeks ago, Twitter also complied with a request from the Indian government to block 122 accounts supposedly critical of India's actions in Punjab.
I don't run an international social media company but I imagine there are no obvious choices to make when a government makes a demand and threatens to jail your employees if you don't comply or has police raid your offices. You could close up your offices and not have any employees anywhere in the country, but then you risk having the government retaliate by just blocking access completely, as several countries have already.
Google also dealt with this dilemma in China. In exchange for access to a potential market with 1.3 billion people at the time, Google agreed in 2006 to offer a version of its services that hewed to the CCP's severe censorship requirements. They gave up in 2010 after they found out that several Chinese activists had their Gmail accounts hacked (presumably by the CCP). From a purely financial perspective, it probably would've been in Google's best interests to dutifully continue complying with CCP's censorship regime and just look the other way. That they didn't is commendable from a principled perspective, but it's also not obvious to me whether China's population would have been better off with a hobbled obedient Google versus nothing at all.
Despite the hostility in India, (old) Twitter wasn't a total doormat and did pushback against censorship efforts by suing the Indian government over its takedown law. This lawsuit was something that Musk specifically complained about while he and Twitter were lawfighting about the sale, as stated in the counterclaim he filed:
¶ 181. In 2021, India’s information technology ministry imposed certain rules allowing the government to probe social media posts, demand identifying information, and prosecute companies that refused to comply. While Musk is a proponent of free speech, he believes that moderation on Twitter should “hew close to the laws of countries in which Twitter operates.”
¶ 182. As a result of India’s new rules, recent public reporting suggests that Twitter has faced various investigations by the Indian government, requests to moderate content, and requests to block certain accounts.
¶ 183. India is Twitter’s third largest market, and thus any investigation into Twitter that could lead to suspensions or interruptions of service in that market may constitute an [Material Adverse Effect].
Musk was clearly worried that (old) Twitter was rocking the boat too much in India. Even as a free speech maximalist, I don't see an obvious choice here. There's an obvious tension between standing on principle while also not jeopardizing your wallet at the same time. One has to give, and there's nothing inherently embarrassing about that given the stakes at play.
Fast forward back to the present, in the context of India's recent takedown demands, I wouldn't have an objection if Musk came out with a statement that said "Although we disagree with the demands of the Indian government, we are exploring our legal options but have no choice but to comply in order to avoid jeopardizing access to 1.4 billion people." That's regrettable from a free speech perspective, but what else can you do? But as far as I can tell, Twitter has kept quiet and refused to say anything about its role in facilitating government censorship.
In contrast to the delicate diplomatic game Musk has to play in India, Musk faced no such concerns when speaking about the US government's efforts to take down information it didn't like. Matt Taibbi covered exactly this topic in Twitter Files No. 6, describing how the FBI made several removal requests to Twitter, not all of which were complied with.
Since Musk was the source for the Twitter Files documents, it's reasonable that as the owner of the company he would have a sharp financial interest to be extremely selective about what gets disclosed to journalists. Similarly, since Taibbi was one of the journalists handpicked by Musk to receive such a scoop, Taibbi might have an aversion from criticizing the actions of Musk-owned Twitter too strongly. So when the news about India's removal requests came out two weeks ago, MSNBC's Mehdi Hasan sarcastically tweeted "I'm sure Taibbi is all over this.", referencing the conflict of interest at play. Taibbi responded "Why don’t you invite me on your show to talk about it? Since you’re so absolutely sure of what I’ll say." and Hasan complied.
In terms of how this specific question played out, you can see for yourself at this timestamp. Hasan asks if Taibbi is willing to criticize Musk for complying with the Indian government censorship requests and Taibbi declines, claiming he doesn't know enough about the story to have an opinion. It bears repeating that the whole reason he asked to be invited on Hasan's show was to talk about India's censorship! Not knowing enough to have an opinion is fine, but this apparent gap in Taibbi's knowledge seems rather suspicious. Given his reporting, he clearly has an interest in reporting on the relationship between Twitter and censorious government requests, but apparently his curiosity stops at this particular line?
Taibbi's was clearly not happy with the interview but his follow-up statements kept avoiding the central reason he asked to be interviewed, the censorship by India's government. He pivoted instead to talking about the numerous mistakes MSNBC has made over the years which, sure, ok, but a dodge is still a dodge.
Consider a parallel scenario, involving TikTok employees. It's the easiest own maneuver, but watch how the CEO of TikTok transmogrifies into a human pretzel in front of Congress when asked about Uyghur persecution in China. The same thing happened to TikTok's Head of Public Policy last December, where he kept trying to backflip out of his skin. The evasion in answering the Uyghur question is reasonably interpreted as strong evidence that TikTok executives are afraid of being fired for acknowledging something so verboten by the Chinese state. A clear demonstration of how much control the CCP has over the platform.
So with that in mind, I think the best conclusion one can draw from the evidence above is that Taibbi feels constrained from criticizing Musk because Musk is too valuable a source. That on its own does not negate or render false the Twitter reporting he has already done, but it seems obvious that he's not playing with a free hand. Journalism is especially reliant on credibility and trust because so much of it happens behind curtains. For whatever cannot be corroborated by outside sources, we have to trust that a journalist is engaging in enough due diligence in vetting sources and investigating claims. Taibbi is seriously jeopardizing his credibility here, and I can't see how the pay-off is worth it.
[P.S. While writing this, Taibbi announced that he will leave Twitter after the platform started blocking links to Substack. That fact that he is willing to speak up against Musk/Twitter slightly mitigates my overall criticism of Taibbi's integrity.]
I generally find the 21st Century Salonnière’s (also known as Dolly) writing to be thoughtful and insightful, despite the controversial arena she roams around in. Back in April (I have a terrifying reading backlog, ok?) she published the post Sexual Offenses Are More Common Among Transwomen Than Men, a title as provocative as it is unambiguous.
Using prison data from both the UK and the US, Dolly finds that about 50% of trans prisoners are there for a sexual crime, in contrast to 11% - 19% of the general prison population. Hopefully it’s obvious that prisoners are overwhelmingly male by a huge margin, especially for violent offenses, and that the number of trans prisoners is so miniscule as to be almost a rounding error (in the UK there were only 142 trans prisoners out of a total prison population of 92,949 as of 2017).
Dolly’s overall argument is structured thus:
Premise- Trans prisoners are more likely to be there for a sexual offense
Conclusion- Trans people are more likely to commit a sexual offense
I’m not the only one who noticed some glaring omissions in this argument, and a few commentators pointed this out. I would hope my criticism is seen as constructive, but the main feedback I would give is to be more transparent about implicit assumptions. To be clear, Dolly’s operating assumptions (whether stated or not) may be perfectly reasonable, but the discussion is clouded when they're kept shelved away.
The two main assumptions implicitly made are:
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Trans prisoners are representative of the trans general population
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The amount of law enforcement attention spent on any particular crime is representative of that crime's frequency
I might be missing others, but those are at least the most important. Setting aside the validity of the prison statistics (I’m assuming they’re legit and have no reason to think otherwise) I remain skeptical these are reasonable assumptions for many of the same reasons “And I for truth” listed in their comment to the post:
It could be the case, for instance, that transwomen commit non-sex crimes at lower rates than other males but sex crimes at the same rates. It could also be that males in prison for sex crimes are more likely to claim a trans identity in the hopes of getting transferred to a woman's prison, either for nefarious reasons (access to women in prison) or self-protection (recognition of the higher risk that other male prisoners might commit violence against them). Both of those situations are consistent with the data you cite.
I’m also skeptical based on my experience as a public defender.
Sex criminals are by far the people treated the worst by the criminal justice system, both by the legal punishments but also informally by retribution from other inmates. When I'm dealing with a sex offense case, I make informal requests to the prosecutor and the judge to not read out their charges out loud, or to take their case last when the courtroom is emptier. Those same clients routinely ask me to not give them any paperwork about their case for fear that it would be discovered by others. All of this is done to protect them, by limiting the number of people who find out about the nature of their charges.
Inmates in general are almost by definition more violent that the general public, and beating the shit out of someone accused of a sex crime is the kind of violence most likely to be implicitly condoned by the powers that be. Correctional officers genuinely have a thankless and very difficult job, and the last thing on their mind is worrying about kiddie diddler getting shanked. Didn’t see it happen, and even if they did, it was self-defense because the rapist provoked it. So yes, the idea that someone accused of a sex offense is more likely to identify as trans once in prison solely for the purposes of better accommodations makes a lot of sense to me. This says less about the authenticity of trans gender identity and much more about the horrific conditions our criminal justice system casually tolerates.
There would also be an added filter at the investigation stage. Sex crimes are notoriously difficult to prosecute, absent clear evidence of violence or coercion. Law enforcement is put in a very difficult situation because they WANT to be receptive of complaints, but they often can't do anything with them due to shoddy evidence. In most of the rape cases I've handled, there is rarely any dispute whatsoever that the people involved had sex, but then the only evidence of a crime is conflicting testimony from the only two witnesses (he said she consented, she denies it). For example, I once had a case where a guy in his 40s had a friends-with-benefits relationship with a 21 year-old for at least two years. The day she reported a rape to police, she was also seven months pregnant with his child. I am not at all saying it’s impossible to rape someone you’re in a relationship with (no matter how casual), but good luck convincing a jury of that beyond a reasonable doubt.
Prosecutors are thus more likely to pursue charges like this if there are other factors to tip the balance. In the case above, the guy had a domestic violence history from a very long time ago. I also have to assume that their age gap also played a role in moving the needle towards “prosecute”. It would not be surprising if a sex crime garners more lurid attention from the law enforcement apparatus just because the suspect is trans. Prosecutors openly advertising their preferred pronouns does not disavow them of any potential bias against trans people they may harbor, and either way they can only file charges when a beat cop or detective cares enough to forward a report. We’re not pulling from a progressive crowd here.
The overall methodology is complicated by the severe dearth of data on a population this miniscule — how many conclusions can you draw from a sample that is 0.15% of the population? This is further hampered by the relatively incoherent framework of gender identity, particularly when it melds into non-binary territory — how do you determine who should be counted in this group?
One of my hobby horses is being a spoilsport for when someone tries to hoist a heavy conclusion on some flimsy stilts. We can shore this up with some figurative gravel — perhaps some reasonable assumptions to close the gaps, but these should at least be stated outright and explicitly. Short of that, sometimes we just don’t have enough evidence to come to a conclusion, and it’s ok to admit when we don’t and can’t know something. This isn’t a call to give up on trying to answer questions, because even a failed attempt to resolve an inquiry can leave us with a useful blueprint for the future.
Remember Seattle's CHAZ/CHOP? After the place was cleared, a bunch of local businesses and property owners sued the city and now they all reached a settlement. One part that definitely didn't help Seattle were tens of thousands of deleted text messages:
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