A man of prodigious fortune, coming to add his opinion to some light discussion that was going on casually at his table, began precisely thus: "It can only be a liar or an ignoramus who will say otherwise than," and so on. Pursue that philosophical point, dagger in hand.

--Michel de Montaigne, Of the art of discussion.



Stab back: cmnewman99-at-yahoo.com


Home

 
'Tis the season to excoriate bad Christmas songs.
And as with so many similar pastimes, no-one does it better than Lileks.

They’re playing Christmas songs at the coffee shop now; the staff informs me that the selection consists of the same four songs played over and over again, but by different artists. I wouldn’t doubt it. There are only four songs, really – religious, secular songs sung like religious songs, happy upbeat modern tunes, and modern krep in which Grandma is run over by a reindeer or the various members of the family gather to rock around the Christmas tree. How this rocking is done I am unsure, since the tree is usually in the corner; thus it would be difficult to rock around the Christmas tree. You would have to rock in a semi-circular pattern. The people on the end would either have to circle around the others, which would mean they were rocking around the persons rocking, or the entire line would have to shift back and forth, permitting the occupant of the center position no more than a few feet of rocking. It is also unclear what sort of rocking we are talking about here; most rocking doesn’t take you around anything. From the Bruce Springsteen grin-and-thrust-and-pump-hip dance to the Foghat-stoner stand-in-place-and-bob-head style, most rocking is done in place. So the whole song falls apart under analysis. Note: it is possible to rock around the clock, this being an expression of rocking performed in time, not space.

To bad he didn't get off a riff on that supremely stupid lyric "It's the new old-fashioned way." Though I suppose that's a pretty accurate description of Hallmark's business model.
posted by CMN at 2:03 PM
0 stab(s) back

 
Of wands and trenchcoats

Via a commenter on Heidi's blog, I found this bit of Harry Potter fanfic, in which the premise is that John Constantine (if you associate that name with Keanu, I pity you) gets hired by Hogwarts to teach Defense Against the Dark Arts. Now one could easily imagine doing this sort of thing as a quickie pastiche joke. But the author Camwyn is far more ambitious, and has the talent to carry it off. While she certainly mines the rich vein of humor inherent in viewing Hogwarts from Constantine's jaded perspective, she's also writing a mini mystery novel that's as intruiguing and engaging as one of Rowling's, in which the characterizations and voices of both Constantine and all the Rowling characters ring perfectly true. If you're a member of that particular subclass of geekdom to whom the above sounds interesting, you should definitely check it out.

Here's a taste from Constantine's "field notes" to whet the appetite:

Hagrid's war all down to one man, some git calling himself Lord Voldemort. Apparently he's some magic psychopathic racist dictator or something who held power 15+ yrs. ago. Reign of terror, people dying left & right, armies of sinister magic creatures, etc. etc., but got his arse served to him on a silver platter by a baby name of Harry Potter. Been trying to stage comeback ever since. Lord V wants to 'purify wizarding race', can't even stand wizards w/muggle ancestors, would be happier if muggles all died screaming. Sounds like every fascist wanker to come down the pike only w/magic. Tried telling Hagrid this. Did not help. Hagrid unwilling even to say Lord V's name. Talked about his allies, though. His Nibs has gang of wizards & witches hanging on his every word- "Death Eaters". Pure-bloods and Muggle-haters, the lot of 'em. All chomping at the bit for a magical race war, though they'll stop off for a bit of torture & such along the way if they're not in a hurry. Then they kill you.

And that's it, apparently. No raising guardian demons from disjointed corpses, no summoning horrors from the bowels of Hell, no nothing. Kill, maim, start race war, all hail Lord V., who's up for jelly & ice cream.

posted by CMN at 9:54 AM
0 stab(s) back

 
He comes by it honestly...

So it was Halloween, and what did Lucas insist on dressing as? A monk. Of course, this was not just any random monk. It was a monk with a well-defined schtick. You see, on the hallowed eve he walked around the neighborhood accompanied by a friend of his who was also dressed as a monk. The two of them chanted Latin in unison...pie Iesu domine, dona eis requiem...after which each of them would smack himself in the forehead with a wooden board. (In Lucas's case a clipboard, in his friend's a piece of stryofoam painted to look like wood.) They had a few other friends with them as well. One was dressed as the Black Knight, and the other as a strange cloaked figure in a viking helmet who asked at each house whether they had a shrubbery.

I won't even tell you what happened every time they passed some poor girl dressed as a witch.
posted by CMN at 12:28 PM
0 stab(s) back

 
A Firefly/Serenity question.

Yes, I'm a fan. Not to the point where I'm spending large amounts of time and money to become a volunteer member of Universal's marketing arm mind you, but a fan nonetheless. I do have this nagging question, though.

Why don't the Reavers rape and kill each other until there's none (or, I suppose, only one) left? If they're that crazy aggressive, how can they even cooperate with each other enough to keep spaceships flying, plan sophisticated booby traps, organize raiding parties? How can Reaver society be anything but a contradiction in terms?

Anyone?
posted by CMN at 6:01 PM
1 stab(s) back

 
Aristocratic Originalism

I was intrigued enough to go see this movie, but didn't find most of it as funny as I'd hoped. To make that joke work, you either need truly inspired details that go beyond mere shock value, or a style of delivery that makes it funny. (If anyone's keeping score, I think the best two recitals were Carlin's and Cartman's, for those respective reasons.) Also in the inspired category is the below variation from Wings and Vodka. I think it's actually better than any of the ones in the movie. WARNING: If you are at all squeamish, read no further.

Harriet Miers walks into the Senate Judiciary Committee's confirmation hearings. Arlen Specter asks her, "Ms. Miers, how would you describe your approach to interpreting the Constitution?”

Miers, visibly excited, says, “I’m glad you asked. My approach is really quite interesting. I think you’ll like it.”

“Well then,” Specter says. “Let’s hear it.”

Miers launches into an explanation: “Well, first thing I do is find a fairly quiet room with a clean desk. I put the Constitution on one side of the desk, and a Bible on the other. I then completely disrobe, as to be completely unfettered for the job at hand.”

“Uh, Ms. Miers, I’m not sure that—”

“I then take the Constitution and stick it all the way up my ass. This is fairly difficult, because I like to use a large, leather-bound version, but I’ve gotten much better at it. It’s usually just the gold-plated index tabs that hurt.”

“Ms. Miers, you realize that we’re on C-SPAN right now....”

“Then, once the Constitution is safely hidden in my rectum, I bring my cat—Oscar—into the room, and begin feeding him pages of the Bible. He mostly likes the New Testament. Of course, since the Bible I use is printed on a 15% cotton-fiber stock, Oscar can only keep it down for so long. But when he finally coughs up the Bible-laden hairball, the pages have been reduced to a fine paste that it is somehow perfectly suited for use as decorative body paint.”

“I really think we should take a break now, Ms. Miers.”

“Wait just a moment. So now that I have this kitty-puke body paint, I’m finally ready for the midget to come in.”

“Ms. Miers—”

“I’m sorry, little person. The little person takes the cat-vomit paint, and begins transcribing my thoughts on the facts of the case in longhand, backwards, using, for parchment, my glorious, naked body, and using, for a quill, his glorious—”

“Would somebody get a paramedic in here? I think Feinstein just fainted!”

“Now, while the anatomically-gifted dwarf is dotting the I’s and crossing the T’s, I take a moment to forcibly eject the Constitution from my cavity. I then beat the cat to death with it—that little fucker just ate my Bible, after all—skin his corpse, and spread it out onto the desk. I then proceed to pleasure the Sex Gnome with the Constitution, all the while rolling my body across the desk, which transfers a now-readable version of the transcription onto the spread-out cat’s fur. I then wrap myself in this fabulous cloak, borrow a quarter from my Magnificent Porn Pygmy, and flip it into the air. If it lands on heads, I donate the cloak to charity, marry the little guy, and decide for the appellant on moral grounds. If it lands on tails, I donate the Oompa Loompa to charity, have myself declared legally married to the Cat-Skin-and-Puke Blanket, and decide for the appellee on a technicality.”

At this point, Feinstein has fainted, Kennedy has had three heart attacks, and Specter looks as if he’s just vomited down his suit pants, which, in fact, he has. “That’s quite a judicial philosophy you have there, Ms. Miers,” he says. “What do you call it?”

Miers jumps up from her seat, gives a cute little wave of her hands and says:

“Originalism!”

posted by CMN at 10:28 AM
2 stab(s) back

 
When judges have baggage

From a case I had to read today:

The Erlichs may have hoped to build their dream home and live happily ever after, but there is a reason that tag line belongs only in fairy tales. Building a house may turn out to be a stress-free project; it is much more likely to be the stuff of urban legends--the cause of bankruptcy, marital dissolution, hypertension and fleeting fantasies ranging from homicide to suicide.

Erlich v. Menezes, 21 Cal. 4th 543, 557-58 (1999)

Gee, I wonder what the backstory to that little observation was.
posted by CMN at 5:17 PM
0 stab(s) back

 
Indisputably hilarious
Opposing counsel has served a request for judicial notice of facts contained in a Wikipedia article. If you understand the operative terms in that sentence, you probably understand why I've been chuckling all morning.
posted by CMN at 9:42 AM
1 stab(s) back

 
What he said.
posted by CMN at 9:32 AM
8 stab(s) back

 
The watchmaker may be blind, but students should be taught to keep their eyes open.

While on one level my gut reaction is to agree with Glenn and Rick, on the other hand I actually don't think it is a worthless exercise to expose kids to a debate like this as an exercise in critical thinking. Which is what science is supposed to be: a careful weighing of the evidence and reasoning that support two different ways of understanding a phenomenon. Unfortunately, the way science is taught and discussed these days is too often too close to a sort of religious faith. Instead of "revealed truth" we have "proven theories," and instead of accepted dogma we have the current "scientific consensus." This is dangerous to science and to critical thinking in general, because it encourages the idea that unless you are a "scientist" you have no basis on which to form an opinion about certain topics and no ability to evaluate the relative merits of two "scientific" assertions. And yet we ask jurors to evaluate the competing views of opposing scientific experts, and voters to evaluate policy arguments based on competing scientific assertions of cause and effect. And well we should, unless we would place all decisions in the hands of a class of self-selected mandarins. We are all called upon to be scientists to some degree or other, and you do not train scientists by teaching them to toss out dissenting theories with a sneer rather than an argument. Intellectual authority is the death of science whether the authority is Aristotle, the Church, or the op-eds in Scientific American. Even if (as I believe it is) Intelligent Design is an inferior theory to Evolution, allowing proponents of both theories to present their arguments and critique those of the other side would be a valuable lesson, particularly because I guarantee it will make those kids understand the theory of evolution a lot better than they do now. You don't really understand a theory until you've seriously considered a counter-argument and worked through the reasons for choosing one over the other.

Note that I said ID is "inferior," not that it is "wrong." This is an important distinction, and it points to another issue that is buried in the way kids are taught to think about science. A scientific theory is a tool that serves some end, and it can be evaluated only by reference to how well it fulfills that end. The criteria for making these evaluations are not self evident, nor are they easily separable from the kinds of considerations one might well call religious. Go read the debate between Newton and Leibniz, or remember Einstein's rejection of quantum theory on the ground that "God does not play at dice." No doubt one of the reasons the ID crowd prefer their theory is that they think it more consonant with the dignity of man and his view of his place in the universe. Is that an invalid criterion? If so, is it moreso than the requirement that a theory be "elegant"? Why? I don't say there aren't good answers to these questions; I merely say that kids should be taught that they really are questions that need answers. Nor am I claiming that no theory is ever really "wrong." Sure it is, if it contradicts observed phenomena. Easy enough to say in the abstract. But in practice how do you decide how much skepticism to aim at reports of new observations that call into question theories you hold dear? That too depends in part on what ends your theory serves, and there is a margin within which all of us are willing to tolerate some sacrificed accuracy in exchange for a comprehensive worldview that we feel at home in. Easy enough to sneer at the knuckleheads who cling to ID; how many of the people doing the sneering cling to a worldview informed by Marxism?

Now, would the teaching of ID endorsed by Bush come anywhere near to what I envision as potentially salutary? I don't know, and I fear not. Worst case scenario would be that both views are simply presented as "equally valid" and left to the children to choose between as a matter of preference or faith without any serious criticism of either one. In other words, the very sort of mindless multiculturalism the right is supposed to oppose. There's also a slippery slope problem. Does every crackpot theory get equal time to be heard and refuted in school? I actually think that there is a good argument for distinguishing ID from the other competitors that Rick lists, few of which are seriously cared about by many people or deal with basic scientific issues. It's worth having somewhere in the curriculum where basic questions about the nature and validity of science are problematized rather than assumed and spoon-fed, and this is a good place to do it precisely because it implicates deep religious concerns and yet the ID people at least purport to be arguing on a playing field of reason. So let them have their say.
posted by CMN at 3:15 PM
0 stab(s) back

 
Oh please

Let this be good. Oh please oh please oh please. [Seen via the yuppies.]

I dressed up as V for a Halloween party last year and had to spend all night explaining who the hell I was supposed to be. It appears that for once in my life I was ahead of the curve.
posted by CMN at 1:22 PM
3 stab(s) back

 
Goodbye to Sandra D.

Justice O'Connor is retiring. Effective, that is, upon the confirmation of her successor. How wonderfully in character! After all, we wouldn't want to decide now, definitively and for all time, whether she is retired. It's important to leave open lots of room for later facts to influence the result when the question is raised again:

"Is Justice O'Connor retired?"

"Well, I don't know. We need to apply the four-part O'Connor Retirement balancing test to the facts as reported in the newspapers today."

I guess this is my last chance to drag out the little ditty I scrawled in the margins of my Federal Courts casebook one frustrating day...

Look at me, I'm Sandra D.
Lousy with consistency
Won't draw bright lines, I can still change my mind!
Why not?! I'm Sandra D!

As Bill Maher would say, I kid the Justice. And I'll restrain my churlishness long enough to say that she's a very classy lady who deservedly made history. I wish her many happy returns back on the ranch.

Sandy, you must start anew
Don't you know what you must do?
Hold your head high, take a deep breath and sigh...

posted by CMN at 3:53 PM
0 stab(s) back

 
Interview with Oriana

Such words--"invaders," "invasion," "colony," "Eurabia"--are deeply, immensely, Politically Incorrect; and one is tempted to believe that it is her tone, her vocabulary, and not necessarily her substance or basic message, that has attracted the ire of the judge in Bergamo (and has made her so radioactive in the eyes of Europe's cultural elites).

Just so. And it was so unnecessary. She could have made her case so much more reasonably, rigorously, without giving her enemies a pretext for dismissing it out of hand. But then she wouldn't be Oriana.
posted by CMN at 1:23 PM
1 stab(s) back

 
Now he tells me...

So I downloaded and read In the Beginning was the Command Line, Neal Stephenson's brilliant little (well, if 40,000 words is little) essay on the cultural and epistemological ramifications of operating systems. In junior high I actually took a "calculator/computer" class in which we programmed a computer (which even by the standards of that day seemed more like a glorified cash register, whose numeral-only output was printed on receipt tape) using punch cards fed into a reader, and got in trouble for playing with the resultant confetti just as he describes. And in college I had some fun writing little programs in BASIC to do things like calculate the golden mean or graph equations on my Apple II. (This was after Macs had already come out, thus continuing my unbroken pattern of being firmly behind the curve on adoption of new technology.) So even though my level of technical skill is so rudimentary that I would never dream of presuming to apply to myself the honorific "hacker," I kind of feel like a fellow traveller. So I read the essay, and Neal's got me all fired up to eschew the mediated idol worship of the GUI and take full grasp of my destiny by swallowing the red pill, learning Linux, and becoming a Morloch in good standing who actually knows how to read rather than just watch pretty pictures. And then, something in the back of my mind reminds me that long before I read the essay, I'd seen a follow-up comment about it by Neal on his website. What was it, now?

Oh yeah, that would be this comment:

In the Beginning was the Command Line is now badly obsolete and probably needs a thorough revision. For the last couple of years I have been a Mac OS X user almost exclusively.

Oh. Well. Never mind, then.
posted by CMN at 12:26 PM
0 stab(s) back

 
Oriana's trial date set

In case you were wondering exactly how long Oriana has to wait for the worms to come, this article says the trial has been set for June 12, 2006, in Bergamo. (Thanks again to Signore Vige for the link).

According to the article, the choice of venue is because the book was printed there. I'm not sufficiently familiar with Italian legal procedure to understand exactly what this means, but apparently a public minister by the name of Maria Cristina Rota requested that the case be "archived," but the presiding Judge Grasso chose instead a course of action that requires Fallaci to appear in court. Fallaci has already publicly declared that she has no intention of doing so. (This raises intruiging questions: Will Italy seek to have her extradited from the U.S.? Would we comply? I'm pretty sure that they refuse to extradite to us when the defendant would risk capital punishment. Would we extradite someone to face a crime that violates our constitutional norms?)

UPDATE: Here's another little article that has some quotes from Fallaci in reaction to the lawsuit.

This trial is not against me. Nor is it a trial brought by a judge in search of publicity. It is a trial aimed at creating a Precedent, the Fallaci Case.

I will not deign to honor them with my presence. This lawsuit is unacceptable, unpardonable.

To distort a person's thought, pick at a word here and another there, sew it all together with little dots, is illegitimate. Illicit. Illegal. Criminal. Contrary to every moral and intellectual decency. For shame!

As they say in Italy, no hair on her tongue!
posted by CMN at 4:39 PM
0 stab(s) back

 
And they say we’re nuts about religion in this country.

Alright, I have the text of the Italian penal code provisions underlying Smith’s complaint against Fallaci. Are you ready for this? Here’s both the Italian and my translation. Suggestions for improving the latter are welcome from those in a position to offer them.

Art. 402 Vilipendio della religione dello Stato
Chiunque pubblicamente vilipende la religione dello Stato e' punito con la reclusione fino a un anno.

Art. 402 Vilification of the State religion
Whoever publicly vilifies the State religion shall be punished by up to one year imprisonment.


Art. 403 Offese alla religione dello Stato mediante vilipendio di persone
Chiunque pubblicamente offende la religione dello Stato, mediante vilipendio di chi la professa, e' punito con la reclusione fino a due anni.
Si applica la reclusione da uno a tre anni a chi offende la religione dello Stato, mediante vilipendo di un ministro del culto cattolico.

Art. 403: Offenses against the State religion by means of vilification of persons
Whoever publicly offends the religion of the State, by means of vilification of one who professes it, shall be punished by up to two years imprisonment.
Imprisonment from one to three years shall be applied to one to offends the religion of the State, by means of vilification of a minister of the Catholic faith.


Art. 404 Offese alla religione dello Stato mediante vilipendio di cose
Chiunque, in un luogo destinato al culto, o in un luogo pubblico o aperto al pubblico, offende la religione dello Stato, mediante vilipendio di cose che formino oggetto di culto, o siano consacrate al culto, o siano destinate necessariamente all'esercizio del culto, e' punito con la reclusione da uno a tre anni.
La stessa pena si applica a chi commette il fatto in occasione di funzioni religiose, compiute in luogo privato da un ministro del culto cattolico.

Art. 404 Offenses against the State religion by means of vilification of things
Whoever, in a place of worship, or in a public place or place open to the public, offends the State religion, by means of vilification of things that form objects of worship, or are consecrated to worship, or are necessarily designed for the exercise of worship, shall be punished by one to three years imprisonment.
The same penalty shall be applied to one who commits this act in the occasion of religious functions, carried out in a private place by a minister of the Catholic faith.


Art. 405 Turbamento di funzioni religiose del culto cattolico
Chiunque impedisce o turba l'esercizio di funzioni, cerimonie o pratiche religiose del culto cattolico, le quali si compiano con l'assistenza di un ministro del culto medesimo o in un luogo destinato al culto, o in un luogo pubblico o aperto al pubblico, e' punito con la reclusione fino a due anni.
Se concorrono fatti di violenza alle persone o di minaccia, si applica la reclusione fino a tre anni.

Art. 405 Disturbance of religious functions of the Catholic faith
Whoever impedes or disturbs the exercise of functions, ceremonies or religious practices of the Catholic faith, the which are carried out with the assistance of a minister of the same faith or in a place of worship, or in a public place or place open to the public, shall be punished with up to two years imprisonment.
If this is accompanied by acts of violence to persons or threats, the imprisonment shall be for up to three years.


Art. 406 Delitti contro i culti ammessi nello Stato
Chiunque commette uno dei fatti preveduti dagli articoli 403, 404, e 405 contro un culto ammesso nello Stato, e' punito ai termini dei predetti articoli, ma la pena e' diminuita.

Art. 406 Crimes against faiths admitted in the State
Whoever commits one of the acts provided by articles 403, 404, and 405 against a faith admitted in the State, shall be punished in accordance with the designated articles, but the penalty shall be reduced.

The complaint against Fallaci cites article 406 in relation to article 403. Thus the charge is that Fallaci offended Islam by vilifying some individual or individuals who profess it.

When I read these provisions, I wrote to an Italian lawyer friend of mine to ask some questions, among the first of which were: “There’s a State religion in Italy?” and “So how exactly do other faiths get ‘admitted’? His responses were as follows:

Article 403 has its origins in the fascist period, and is therefore regarded as having been superseded by the new Concord between the Italian State and the Holy See to the effect that the Roman Catholic religion is no longer the State religion, but a free religion equal to other faiths admitted by the State.

As for the faiths “admitted” in article 406, the Court of Cassation [like our Supreme Court for constitutional issues] has held that it is “necessary to ascertain whether the statute of a religious confession is in contrast with the Italian juridical order, and in particular whether the exercise of the religion violates penal norms relating to matters of public order and protection of the rights of persons”

Well, this makes Fallaci’s defense quite obvious, as the main theme of her book is to point out all the ways in which the social and religious practices of Muslim immigrants, from infibulation to subjugation of women to polygamy to wearing headgear in I.D. photos, violate Italian and European norms regarding public order and the rights of persons. Her book is, in effect a long brief arguing that Islam should not be regarded as a “culto ammesso nello Stato” according to the court’s definition. That, of course, is not the way it will actually play out. It would be a stupid defense from a legal realist perspective, as there’s no way in hell a judge is going to hold that Islam is not allowed in Italy. I’ve asked my friend if he can find me an opinion defining the distinction between “offending by means of vilification” and merely criticizing. That, I imagine is where the argument will be if it actually takes place.

As for the imposition of lighter penalties for offending religions other than Catholicism, that's apparently been struck down in a case involving none other than our friend Adel Smith. (Hat tip Bartholomew.)

The complaint also invokes another provision, from the “Act of ratification of the Convention of the rights of man":

1. Unless the act constitutes a more serious crime . . . the following penalties shall be imposed:

a) imprisonment of up to three years for one who spreads in any manner ideas founded on racial or ethnic superiority or hatred, or who commits or incites commission of acts of discrimination for reasons of race, ethnicity, nationality or religion;

b) imprisonment from six months up to four years for one who, in any manner, commits or incites commission of violence or acts of provocation to violence for reasons of race, ethnicity, nationality or religion;

2. (left blank)

3. Every organization, association, movement or group having among its goals the inciting of discrimination or violence for reasons of race, ethnicity, nationality, or religion, is prohibited. One who participates in such organizations, associations, movements or groups, or lends assistance to their activities, shall be punished with imprisonment from six months to four years. Those who promote or direct such organizations, associations, movements or groups, for this alone, shall be punished with imprisonment from one to six years.

Whether Fallaci falls within the meaning of 1a) depends I think on the meaning of “ethnic.” She unabashedly espouses the superiority of Western civilization, culture, and mores over those of Islamic civilization. Her book also expresses a fair amount of personal distaste for most people from the latter civilization, but it certainly doesn’t call for acts of discrimination against them. Mostly it just calls for evenhanded application of existing norms to them without making exceptions in deference to their religious or other practices that violate those norms. I also don’t think it can fairly be said that she has incited violence against anyone. (Though there is a marvellous passage in the book where she suggests that a couple Italian male politicians who have defended the Muslims’ right to perform “soft infibulation” on their daughters try out the analogous procedure on their own bodies, and offers to do the honors.)

Well, between the free speech and establishment issues above, I’ve provided Eugene with enough fodder for a day or two. I need to go bed, as tomorrow it’s off to Family Camp with the Boy Scouts. Buona notte.
posted by CMN at 12:26 AM
2 stab(s) back

 
One from the referral logs:

Here's an interesting post that provides some links to more background on Adel Smith, one of which illustrates that this is not one of those situations where only the non-PC speech is subject to censure. Apparently Smith himself has faced charges for denigrating the Catholic church as a "criminal organization." And as I noted before, Fallaci herself has sued a newspaper for libel simply for responding to her celebrated "Fuck you" with a "Thanks, same to you." I get the sense that filing libel suits in Italy is largely a symbolic gesture (as it sometimes is here), though I'd be curious to know how often people actually go to the mats on them.

UPDATE: And here's another. Scroll down to see a nice photo showing the reaction of some Italian sports fans to Mr. Smith.
posted by CMN at 5:01 PM
0 stab(s) back

 
The 18 things you can't say about Muslims in Italy.
Thanks to Ilario Vige, my indefatigable source of Oriana intel, I now have a pdf copy of an article from the Italian newspaper Libero, which reproduces the text of the complaint filed against Fallaci. How’s that for social capital in the internet age? (Ah, Prof. Putnam, there are more things in heaven and earth…) I don’t have time now to try to translate all of it, but eventually I hope to obtain copies of the cited code provisions so as to be in a position to understand the way the legal issues are being framed. What I can do for now is list the 18 “incriminating sentences.” As I had guessed, a few of the offending passages are from the section I translated earlier. Many of them are mere snippets taken from longer contexts. For now I will present them only as they appear in the complaint (at least as cited in the article), ellipses and all. If there is reason to do so later I can provide more of the context for each.

1) during the occupation of Montecassino in the 9th century “the Muslims amused themselves by sacrificing each night the virginity of a nun. Do you know where? On the altar of the cathedral.”

2) while occupying Constantinople in 1453, the Turks led by Mohammed II “decapitated even newborns. And extinguished candles with their little heads.”

3) “In a woman the Koran sees above all a womb to give birth.”

4) “In the dream that the sons of Allah have been nurturing for years, the dream of blowing up Giotto’s Tower or the Tower of Pisa or the cupola of St. Peter’s or the Eiffel Tower or Westminster Abbey or the cathedral of Cologne and so on . . .”

5) “…halal butchery is barbarous” just as “shechita butchery is barbarous. That is, the Jewish version which is carried out in the same way and consists of slitting the animals’ throats without dazing them.”

6) France is a country “where Islamic racism, that is the hatred of the infidel-dogs, reigns supreme and is never put on trial, never punished. Where the Muslims declare openly: “We must take advantage of the democratic space that France offers us, we must exploit democracy, that is, make use of it to occupy territory.” Where not a few of them add: “In Europe the Nazi position was not understood. Or not by all. It was judged a vehicle of homicidal folly, when actually Hitler was a great man.”

7) for Muslims “biology is a shameless science because it is occupied with the human body and sex.”

8) “ . . . we will have to resign ourselves to the yoke of a creed that . . . instead of love spreads hatred and instead of liberty slavery.”

9) “a Right and a Left . . . that (in Italy) are both on the side of the enemy (Islam).”

10) the demands of the Islamics with regard to school curricula mean that in literature classes “we will not be allowed to include for example The Divine Comedy . . .nor the Canticle of Creatures nor the Sacred Hymns of Alessandra Manzoni . . .” etc. etc.

11) “ . . . the uncouth wailing of the muezzin . . .”

12) the terrorist attacks of the last twenty years have caused six thousand deaths “to the glory of the Koran. In obedience to its verses.”

13) “Our Jesus of Nazareth . . . they put him in their Danna where he eats like Trimalchio, drinks like a drunkard, screws like a sexual maniac.”

14) “. . . the revolting, reactionary, obtuse, feudal Right is found today only in Islam. It is Islam.”

15) infibulation is “the mutilation that the Muslims force on little girls to prevent them, once they are grown . . . from enjoying the sexual act. It is a female castration that the Muslims practice in twenty-eight countries of Islamic Africa and because of which two million persons die each year from sepsis or loss of blood . . .”

16) the Italians afflicted by atavistic loss of pride “are not offended when Islamic immigrants urinate on their monuments or soil the sacristies of their churches or toss their crucifixes out the window of a hospital.”

17) “. . . Islam is a pond. And a pond is a trough of stagnant water. . . it is never purified . . . it is easily polluted, like a watering hole for livestock of little value. The pond does not love life: It loves death . . .”

18) “ . . .despite the massacres through which the sons of Allah have bloodied us and bloodied themselves for over thirty years, the war that Islam has declared against the West . . . is a cultural war. . .they kill us in order to bend us. To intimidate us . . . Their goal is not to fill cemeteries. Not to destroy our skyscrapers . . . It is to destroy our soul, our ideas. Our feelings and our dreams. It is to subjugate the West once again.”

UPDATE: As you can see, Oriana doesn't really live up to her claim that this time around she is appealing solely to the power of reason and putting aside her rage and pride. This was my main disappointment with the book when I read it. She does cite a lot of facts in support of her attacks on Islam, and as you can see several of the 18 sentences are simply historical assertions. She doesn't provide any footnotes or sources for any of her facts though (no doubt Muslim historians paint things differently), and it is undeniable that the overall tone of her book is one of visceral revulsion for Muslims, not just rationally alarmed criticism of certain political and cultural developments in Europe. This is unfortunate, because her book does raise a lot of genuinely alarming and important issues, and I think this time around her haranguing jeremiads, bracing and delightfully trenchant though they can be (particularly when directed at various politicians and organizations), actually wind up detracting from the message. They surely detract from the chances of persuading anyone not on her side already, or even of getting them to give her an open-minded hearing. They also make it easy to understand why a Muslim who does not wish to blow up the Eiffel Tower or conquer the West would rightly feel that he was being stereotyped and hatred being fomented against him. On the other hand, plenty of people like the ones Fallaci describes assuredly exist, and the gap will not be bridged by pretending it isn't there. None of my criticism, of course, changes my view that in a free society this sort of expression ought to be beyond the reach of legal sanctions.

UPDATE 2: David Harbottle has another translation of these items here, except that the source he was looking at lists a few of them differently. I have no idea why that is.
posted by CMN at 1:14 PM
141 stab(s) back

 
I’m trying to track down a copy of the actual complaint so I can find the 18 sentences Eugene is interested in. In the meantime, here’s a quick and dirty translation of a relevant passage from the book in question, The Force of Reason. Relevant both because it talks about the earlier legal process Fallaci was subjected to in France, and because it illustrates the general tone of her comments about Muslims. This is the beginning of Chapter 2:

I understood that the dream [nurtured by the sons of Allah] of destroying the Eiffel Tower was superfluous in the late spring of 2002, when “The Rage and The Pride” came out in France, where a novelist had just been criminally charged for saying that the Koran is the most stupid and dangerous book in the world. And where, in 1997 and then in 1998 and then in 2000 and then in 2001 Brigitte Bardot had been condemned (as a racist-xenophobe-blasphemer-etcetera) for having written or said those things people never get tired of repeating, poor Brigitte. That the Muslims have robbed her of her country, that even in the most remote villages French churches have been replaced by mosques and the Our Father with the cries of muezzins, that tolerance has a limit even in democratic regimes, that halal butchery is barbarous... (By the way: it is. It is, I’m sorry to say, in just the same measure as shechita butchery is barbarous. That is, the Jewish version which is carried out in the same way and consists of slitting the animals’ throats without dazing them, thus causing them to die little by little. Slowly, bleeding to death. If you don’t believe it, go to a shechita or halal slaughterhouse and observe that never-ending agony accompanied by heart-rending glances that stops only when the lamb or calf no longer has a drop of blood remaining. So at that point the meat is “pure,” nice and white, pure...).

I understood it, in other words, even before being incriminated like the novelist and Brigitte Bardot. Becuase you know who was the first to pile up the wood for my pyre? The same Parisian weekly to whose editor I had granted excerpts to publish in anticipation of the book. And you know how he piled up that wood? By publishing, next to my text, the requisitories of the French Fra Accursios. Journalists, psychoanalysts, islamists, philosophers or rather pseudophilosophers, politologists, everythingologists. (Not infrequently, with Arab names. Sometimes, with Jewish names.) You know who set it on fire? The extreme leftist periodical that dedicated a cover to me with the title (in cubital letters, naturally) of the article-condemnation: “Anatomy of an Abject Book.” You know what happened right afterward? It happened that, even though demand was insatiable in every bookstore, many sons of Allah demanded that it be removed from both windows and shelves, and many frightened booksellers were constrained to sell it in secret. As for the trial, it happened not only because of the complaint presented by the Muslims of MRAP, that is “Mouvement contre le Racisme et pour l’Amitie’ entre les Peuples” (sic), but also because of one presnted by the Jews of “LICRA.” “Ligue Internationale contre le Racisme et l’Antisemitisme.” The Muslims of MRAP, demanding that every copy be sequestered and (I suppose) burned. The Jews of LICRA, demanding that each of them bear a label: “Attention! This book may be hazardous to your mental health!” A warning, that is, just like the ones that deface packs of cigarettes: “Attention! Tabacco is gravely harmful to health.” Both, demanding that I be condemned to a year in prison and to pay a savory damages award to be poured into their pockets... I was not condemned, as you know. A procedural technicality saved me from prison, from the damages award, from sequestration, from the label like the ones that deface the packs of cigarettes. With notable acumen, the judge remembered that the first edition had been sold out in less than forty-eight hours, that the successive ones were being sold unstoppably, so that granting one of the two requests would be like closing the barn door after the cows have escaped. But this didn’t change the fact that the Jews of LICRA had wanted that trial just as much as the Muslims of MRAP. In fact I did nothing but torment myself over this, during those days. I did nothing but shake my head and repeat: I-don’t-understand-I-don’t-understand. And in reality it was hard to understand. Because the Fra Accursios of LICRA were quite familiar with the j’accuse I had written against European antisemitism. It had caused a tumult in France as well, and it was in response to that tumult as well that the website “thankyouoriana” had been put up. They also knew that the threats against my life had multiplied because of that article. And to this day I do not forgive them. But in a certain sense, today, I understand them.

I understand them because, even if your grandparents died in Dachau or Mauthausen, it’s not easy to be courageous in a country where there are more than three thousand mosques. Where Islamic racism, that is the hatred of the infidel-dogs, reigns supreme and is never put on trial, never punished. Where the Muslims declare openly: “We must take advantage of the democratic space that France offers us, we must exploit democracy, that is, make use of it to occupy territory.” Where not a few of them add: “In Europe the Nazi position was not understood. Or not by all. It was judged a vehicle of homicidal folly, when actually Hitler was a great man.” Where not a few of them would like to abolish the article of the French constitution that in 1905 rigorously separated Church from State and with that article all the laws that prohibit polygamy, repudiation of wives, religious proselytizing in the schools. Where ten years ago a franco-turkish girl of Colmar was carved up by her family that is by her mother and brothers and uncles because she had fallen in love with a Catholic and wanted to marry him. (“Better dead than dishonored” was the comment of that family.) Where in November 2001, thus only two months after September 11, a female french-moroccan student in Galeria, Corsica, was put to death with twenty-four stabs by her father because she was going to marry a Corsican, he too a Catholic. (“Better imprisoned than dishonored” was the father’s comment.) Where already in 1994 the stylist of Maison Chanel had to formally ask for pardon from the Muslim community not to mention destroy dozens of beautiful outfits because in the summer collection he had used fabrics stamped or embroidered with decorative verses from the Koran in Arabic. Where recently a farmer was required to remove the cross he kept in a wheat field (a field that belongs to him) because “the sight of that religious symbol causes tension among Muslims.” Where Islamic arrogance would like to abolish in the schools the “blasphemous” texts of Voltaire and Victor Hugo. With them the teaching of biology, a “shameless science because it is occupied with the human body and sex.” With the teaching of biology, lessons in gymnastics and swimming, sports that you cannot perform with burkah or chador.

Even less is it easy to be heroic in a country where, often, Muslims are not the official ten percent but rather thirty or even fifty percent. If you don’t believe it, go to Lione or Lille or Roubaix or Bordeaux or Rouen or Limoges or Nizza or Tolosa or even better to Marsailles which in substance is no longer a French city. It is an Arab city, a city of the Maghreb. Go look at the the central quartiere of Bellevue Pyat, by now a slum of filth and delinquency, a casbah where on Friday you can’t even walk along the street because the great mosque is not sufficient to contain the faithful and many pray outside. And where the police refuse to go, saying “It’s too dangerous.” Go there and look at the famous Rue du Bon Pasteur where all the women are veiled, all the men wear jalabah and long beards and turbans, and lounge from morning till evening in the cafes with the televisions that trasmit programming in Arabic. Go there and see the College Edgard Quinet where ninety-five percent of the scholars are Muslims and where last year a fifteen year old girl named Nyma was beaten by her schoolmates and thrown into a trashcan for wearing blue jeans. In the trashcan she came close to being burned. I say “came close” because she was saved by the principal of the school, Jean Pellegrini, who received two stab wounds for his trouble. (You know who gave them to him? Nyma’s brother.) So yes I understand the ungrateful signori of LICRA, yes I understand them. Collaboration almost always springs from fear. But they remind me of the German Jewish bankers who in the thirties, hoping to save themselves, lent money to Hitler. And who, in spite of this, wound up in the crematorium ovens.

Fra Accursio, by the way, was the inquisitor who went after Mastro Cecco. Oh, and for anyone who's not familiar with Oriana's J'accuse, here's the (somewhat corrected since) translation I did of that when it first came out in April 2002:

I find it shameful that in Italy there should be a procession of individuals dressed as suicide bombers who spew vile abuse at Israel, hold up photographs of Israeli leaders on whose foreheads they have drawn the swasitka, incite people to hate the Jews. And who, in order to see Jews once again in the extermination camps, in the gas chambers, in the ovens of Dachau and Mauthausen and Buchenwald and Bergen-Belsen et cetera, would sell their own mother to a harem.

I find it shameful that the Catholic Church should permit a bishop, one with lodgings in the Vatican no less, a saintly man who was found in Jerusalem with an arsenal of arms and explosives hidden in the secret compartments of his sacred Mercedes, to participate in that procession and plant himself in front of a microphone to thank in the name of God the suicide bombers who massacre the Jews in pizzerias and supermarkets. To call them "martyrs who go to their deaths as to a party."

I find it shameful that in France, the France of Liberty-Equality-Fraternity, they burn synagogues, terrorize Jews, profane their cemeteries. I find it shameful that the youth of Holland and Germany and Denmark flaunt the kaffiah just as Mussolini's avantgarde used to flaunt the club and the fascist badge. I find it shameful that in nearly all the universities of Europe Palestinian students sponsor and nurture anti-semitism. That in Sweden they asked that the Nobel Peace Prize given to Shimon Peres in 1994 be taken back and conferred on the dove with the olive branch in his mouth, that is on Arafat. I find it shameful that the distinguished members of the Committee, a Committee that (it would appear) rewards political color rather than merit, should take this request into consideration and even respond to it. To hell with the Nobel Prize and honor to he who does not receive it.

I find it shameful (we're back in Italy) that state-run television stations contribute to the resurgent antisemitism, crying only over Palestinian deaths while playing down Israeli deaths, glossing over them in unwilling tones. I find it shameful that in their debates they host with much deference the scoundrels with turban or kaffiah who yesterday sang hymns to the slaughter at New York and today sing hymns to the slaughters at Jerusalem, at Haifa, at Netanya, at Tel Aviv. I find it shameful that the press does the same, that it is indignant because Israeli tanks surround the Church of the Nativity in Bethlehem, that it is not indignant because inside that same church two hundred Palestinian terrorists well armed with machine guns and munitions and explosives (among them are various leaders of Hamas and Al-Aqsa) are not unwelcome guests of the monks (who then accept bottles of mineral water and jars of honey from the soldiers of those tanks). I find it shameful that, in giving the number of Israelis killed since the beginning of the Second Intifada (four hundred twelve), a noted daily newspaper found it appropriate to underline in capital letters that more people are killed in their traffic accidents. (Six hundred a year).

I find it shameful that the Roman Observer, the newspaper of the Pope--a Pope who not long ago left in the Wailing Wall a letter of apology for the Jews--accuses of extermination a people who were exterminated in the millions by Christians. By Europeans. I find it shameful that this newspaper denies to the survivors of that people (survivors who still have numbers tattooed on their arms) the right to react, to defend themselves, to not be exterminated again. I find it shameful that in the name of Jesus Christ (a Jew without whom they would all be unemployed), the priests of our parishes or Social Centers or whatever they are flirt with the assassins of those in Jerusalem who cannot go to eat a pizza or buy some eggs without being blown up. I find it shameful that they are on the side of the very ones who inaugurated terrorism, killing us on airplanes, in airports, at the Olympics, and who today entertain themselves by killing western journalists. By shooting them, abducting them, cutting their throats, decapitating them. (There's someone in Italy who, since the appearance of The Rage and the Pride, would like to do the same to me. Citing verses of the Koran he exorts his "brothers" in the mosques and the Islamic Community to chastise me in the name of Allah. To kill me. Or rather to die with me. Since he's someone who speaks English well, I'll respond to him in English: "Fuck you.")

I find it shameful that almost all of the left, the left that twenty years ago permitted one of its union processionals to deposit a coffin (as a mafioso warning) in front of the synagogue of Rome, forgets the contribution made by the Jews to the fight against fascism. Made by Carlo and Nello Rossini, for example, by Leone Ginzburg, by Umberto Terracini, by Leo Valiani, by Emilio Sereni, by women like my friend Anna Maria Enriques Agnoletti who was shot at Florence on June 12, 1944, by seventy-five of the three-hundred-thirty-five people killed at the Fosse Ardeatine, by the infinite others killed under torture or in combat or before firing squads. (The companions, the teachers, of my infancy and my youth.) I find it shameful that in part through the fault of the left--or rather, primarily through the fault of the left (think of the left that inaugurates its congresses applauding the representative of the PLO, leader in Italy of the Palestinians who want the destruction of Israel)--Jews in Italian cities are once again afraid. And in French cities and Dutch cities and Danish cities and German cities, it is the same. I find it shameful that Jews tremble at the passage of the scoundrels dressed like suicide bombers just as they trembled during Krystallnacht, the night in which Hitler gave free rein to the Hunt of the Jews. I find it shameful that in obedience to the stupid, vile, dishonest, and for them extremely advantageous fashion of Political Correctness the usual opportunists--or better the usual parasites--exploit the word Peace. That in the name of the word Peace, by now more debauched than the words Love and Humanity, they absolve one side alone of its hate and bestiality. That in the name of a pacifism (read conformism) delegated to the singing crickets and buffoons who used to lick Pol Pot's feet they incite people who are confused or ingenuous or intimidated. Trick them, corrupt them, carry them back a half century to the time of the yellow star on the coat. These charlatans who care about the Palestinians as much as I care about the charlatans. That is not at all.

I find it shameful that many Italians and many Europeans have chosen as their standard-bearer the gentleman (or so it is polite to say) Arafat. This nonentity who thanks to the money of the Saudi Royal Family plays the Mussolini ad perpetuum and in his megalomania believes he will pass into History as the George Washington of Palestine. This ungrammatical wretch who when I interviewed him was unable even to put together a complete sentence, to make articulate conversation. So that to put it all together, write it, publish it, cost me a tremendous effort and I concluded that compared to him even Ghaddafi sounds like Leonardo da Vinci. This false warrior who always goes around in uniform like Pinochet, never putting on civilian garb, and yet despite this has never participated in a battle. War is something he sends, has always sent, others to do for him. That is, the poor souls who believe in him. This pompous incompetent who playing the part of Head of State caused the failure of the Camp David negotiations, Clinton's mediation. No-no-I-want-Jerusalem-all-to-myself. This eternal liar who has a flash of sincerity only when (in private) he denies Israel's right to exist, and who as I say in my book contradicts himself every five minutes. He always plays the double-cross, lies even if you ask him what time it is, so that you can never trust him. Never! With him you will always wind up systematically betrayed. This eternal terrorist who knows only how to be a terrorist (while keeping himself safe) and who during the Seventies, that is when I interviewed him, even trained the terrorists of Baader-Meinhof. With them, children ten years of age. Poor children. (Now he trains them to become suicide bombers. A hundred baby suicide bombers are in the works: a hundred!). This weathercock who keeps his wife at Paris, served and revered like a queen, and keeps his people down in the shit. He takes them out of the shit only to send them to die, to kill and to die, like the eighteen year old girls who in order to earn equality with men have to strap on explosives and disintegrate with their victims. And yet many Italians love him, yes. Just like they loved Mussolini. And many other Europeans do the same.

I find it shameful and see in all this the rise of a new fascism, a new nazism. A fascism, a nazism, that much more grim and revolting because it is conducted and nourished by those who hypocritically pose as do-gooders, progressives, communists, pacifists, Catholics or rather Christians, and who have the gall to label a warmonger anyone like me who screams the truth.

I see it, yes, and I say the following. I have never been tender with the tragic and Shakespearean figure Sharon. ("I know you've come to add another scalp to your necklace," he murmured almost with sadness when I went to interview him in 1982.) I have often had disagreements with the Israelis, ugly ones, and in the past I have defended the Palestinians a great deal. Maybe more than they deserved. But I stand with Israel, I stand with the Jews. I stand just as I stood as a young girl during the time when I fought with them, and when the Anna Marias were shot. I defend their right to exist, to defend themselves, to not let themselves be exterminated a second time. And disgusted by the antisemitism of many Italians, of many Europeans, I am ashamed of this shame that dishonors my Country and Europe. At best, it is not a community of States, but a pit of Pontius Pilates. And even if all the inhabitants of this planet were to think otherwise, I would continue to think so.

The individual to whom she sends the two word salutation, by the way, is Adel Smith, the same person who is now behind the lawsuit against her in Italy. As I've explained elsewhere, while I don't doubt that Oriana has received death threats, I don't think the statement by Smith that she refers to above really was one.

UPDATE: It occurs to me that the account Fallaci gives of the proceedings in France doesn't make a lot of sense, at least to American legal eyes. I suppose I can imagine a judge denying a preliminary injunction on the ground that the feared damage is already done, so that the balancing of the equities weighs in favor of the burden on the publishers. But you wouldn't throw out the suit on that ground. It certainly wouldn't save you from prison or a damages award, assuming you had committed acts for which those were the legal consequences. Nor would it save you from a permanent injunction against further selling of the book. (As in copyright cases, for example.) So either Fallaci's not explaining what happened very well, or the French legal system is not very precise in the way it deals with these matters. Anybody know? Wouldn't surprise me if the answer was both.
posted by CMN at 1:47 AM
1 stab(s) back

 
Here we go again...
So Adel Smith is finally getting his way, and now Oriana's to be tried in Italy. (For my take on an earlier Italian legal scuffle involving this character, see here.) That makes the third European country to entertain legal charges against her for writing a book. Remember that the next time you hear someone asserting the cultural and intellectual superiority of Europeans over Americans. (Ironically, Oriana herself has done that at times.) The European populace is apparently so enlightened and sophisticated that the only adequate response to publication of a book containing harsh rhetorical swipes (backed by a fair amount of factual research) at a religious group is to legally suppress it. Otherwise, who knows what those gullible mobs might do.

At least one Italian commentator gets this. Pierluigi Battista has a piece on the front page of the Corriere:

It will be a sad day for the law if we discover that in Italy crimes of opinion exist, and are not confined, as they should be, to the antique shop. It will be a sad day for liberty of expression if The Force of Reason is dragged into court and a judge decides … to credit the complaint filed by Adel Smith in which Fallaci is accused of nothing less than “vilifying relgion.”

It will be a sad day if the only protest to have emerged is that of the minister Castelli, who properly termed this judicial tenacity against a book as “coercion of thought.”

It will be a sad day if no-one, but no-one, among those who have legitimately criticized Oriana Fallaci’s opinions, raises his voice to say that ideas, even the most extreme ones, can never be put on trial. A final and bitter confirmation of the Italian malaise, in which we are incapable of thinking that principles apply even to those who disagree with us and that diverse opinions are to be treated and respected as opinions and not as crimes. Far, very far from courts of law.

It would be nice if Umberto Eco, who has spent some time criticizing Fallaci (with customarily opaque erudition), and who also once wrote a novel dramatizing quite vividly the lengths to which some will go to effect the "coercion of thought," would rise to this challenge.

In any event, I doubt Oriana will be much fazed by this. She could probably just move back to New York and stay there, but I suspect she won't. She's already got such a martyr complex, and is so close to death, that this will simply provide her with a last glorious chance to grandstand on the way out. She'll get to write another long comparison of herself to Mastro Cecco or some other suitably noble wronged heretic, and the streets outside the courthouse will be packed with her admirers.
posted by CMN at 9:48 AM
0 stab(s) back

 
"You wouldn't really legalize heroin, would you?"
Yes. Here's why. As usual, Jim does a great job of showing why what many assume to be an absurd, extreme libertarian position is merely a sensible cost-benefit analysis informed by principle.
posted by CMN at 12:05 AM
0 stab(s) back

 
A sad day.
You know, I've long defended Justice Thomas against the offensive and baseless notion that he is nothing more than Scalia's lapdog. But why, oh why, did he have to demonstrate the point in this of all cases? At argument there were only two justices who didn't telegraph their views. The Chief, cause he wasn't there, and Thomas, cause he didn't speak. I was somewhat worried, because I could see either of them going either way, but hoped this would be one of the ones where Thomas agreed with Scalia. I mean come on Clarence, it's taxes we're talking about here! Foreign taxes! Wouldn't you know it they both had to line up against us. I'm too busy to read the opinion right now, and haven't the heart. I'll comment later.
posted by CMN at 1:06 PM
0 stab(s) back

 
Look, ma!
After nearly three years of this, I finally took the time to work out how to enable comments. Stay tuned for more breathtaking leaps up the html learning curve. See, I'm what you call a late adopter.
posted by CMN at 10:37 AM
2 stab(s) back

 
If I can't have her, no-one will!
Not usually considered a noble position to take, is it? Unless you're an advocate for the handicapped, in which case it somehow becomes the epitome of righteousness. Look, I understand the laudable desire to help handicapped people not be excluded from society. But if you hated the handicapped and wanted to hatch a plot that would cause children and their families to resent them, could you really do better than this? (Found via sploid, which ought to replace Drudge in your bookmarks. It has in mine.)
posted by CMN at 11:30 AM
1 stab(s) back

 
The $64,000 question.
posted by CMN at 8:14 PM
0 stab(s) back

 
Lions and wires in the air! So high!

Yesterday I read the Ninth Circus's latest three ring spectacle. Here’s the question: You own a copyright. Someone infringes it. Can you assign the claim to someone else, someone who owns no other interest in the copyright?

Under the bigtop, we have a seven-judge majority making a big show of walking a strict statutory construction tightrope. The statute says that the owner of an exclusive right “is entitled” to sue “for any infringement of that particular right committed while he or she is the owner of it.” The “exclusive rights” (i.e., copy, distribute, perform, make derivative works, etc.) are all enumerated in the statute. The statute doesn’t say any other people are ever entitled to sue. Nor does it say they’re not. In particular, it doesn’t say that assignees of a right to sue are entitled to sue. Nor does it say they’re not, or that copyright claims are unassignable. From this, the majority concludes that copyright claims are unassignable and that purported assignees can't sue. Expressio unius, exclusio alterius, ipso facto Q.E.D.

Of course, the copyright statute also doesn't say that the people who it entitles to sue are allowed to authorize lawyers to bring suit in their name rather than appearing in court on their own behalf. In fact, the statute is silent on this crucial point--just as silent as it is on the question whether accrued claims are assignable. And, the majority takes pains to emphasize, copyright is purely a creature of statute--which apparently means that background principles of common law simply don't apply, even to matters on which the statute is silent. So, I'm wondering, where does the right to have a lawyer prosecute copyright claims on one's behalf come from? As there is (as far as I know) no federal statute expressly granting people this ability to delegate the prosecution of their claims to lawyers, should we assume that unless a particular federal statute expressly says otherwise, any causes of action created by it must be prosecuted in propria persona? Or should we make the opposite assumption, that general principles of background law apply unless the federal statute expressly abrogates them?

Though the majority had introduced its act as one of simply plodding step by textually bound step along the tightrope, at a certain point it breaks into an intriguing dance. Apparently only half of the crucial statutory language is realio trulio exclusio--the part about being an "owner of an exclusive right under a copyright." As long as you are such an owner, not only are you "entitled" to sue on your own claims, you also have the power to sue on copyright claims assigned to you. But wait--wasn't the statutory entitlement limited to people who own an exclusive right that is infringed "while he or she is the owner of it"? Yet the majority appears to say (granted, without holding since it's not before them) that an owner of any exclusive right, being a member of the class Congress intended to empower to sue on copyright claims, is entitled to sue on an assigned claim--even though the exclusive right she owns wasn't itself infringed. And even though she didn't own the right that was infringed at the time the infringement was committed. So now we've got one foot shuffling along the tightrope, and the other out there doing the hokey pokey.

The really bizarre thing about the majority's position is that it seems trivially easy to get around. As the majority acknowledges, the exclusive rights under copyright are infinitely divisible and transferable. So if you want to assign an accrued copyright claim, all you have to do is transfer along with it some exclusive right defined in such a way as to have no practical significance. Say, the right to use the copyrighted work in the making of a derivative work whose sole subject is the depiction of a peppercorn.

In ring two we have a pair of judges who don't really believe in tightropes. A rope after all is just a bridge trying to get somewhere, and as long as a smart judge knows where Congress was going, she can take her own route. In fact, these judges generally see one of their main jobs as that of building safety nets to catch all the people who would otherwise fall off Congress's various tightropes, but who they--don't ask them how--just know were intended to make it across.

Actually, the ring two judges clue us into something that the majority had done a fairly good job of keeping under wraps. This isn't really about tightrope walking at all. It's about lion taming. The lions are all the non-copyright owners to whom copyright claims might be assigned. Some lions are relatively well behaved, jumping through hoops and furthering the progress of science and useful arts like they're supposed to. Others are mean nasty creatures who growl and bite for no good reason but a desire to harass. These latter are also rumored to be, ahem, rather fecund. The majority tried to keep all lions out through a strict no lions rule, albeit a strangely defined one. The ring two judges, though, know that the way to deal with lions is not on a categorical, speciesist basis, but by using your special judgely powers to divine which lions are mean and nasty and which are really sweet widdle puddytats. The former get the whip and the chair; the latter get into court. And what makes this a really fun ongoing act is that you can never tell in advance which new lion will get put in which category. The entertainment is endless.

Ring three contains two more judges. Like the ones in ring two, they had hoped to be in the majority but instead got shunted off into a sideshow. These are the kind of judges who generally take tightropes pretty seriously. But, like the ring two judges, they find it hard to take seriously the one-footed dance the majority is doing. Plus they think this particular tightrope was put there not by Congress but by the majority itself. They're textualists, but they don't see how the text "I grant X a right to sue" implies the other non-existent text "X may not assign his right to sue to anyone else." The ring three judges also see that what's going on here really has something to do with lions. In fact, they lift another curtain and show us who it is that's really afraid of the lions--a particularly juicy zebra. Unlike the ring two judges though, they don't think they're equipped or authorized to decide which lions are suitable for domestication and which aren't. If Congress hasn't made any anti-lion rule, then you just take all comers and make them jump through the same hoops. If there are too many of them, or they get too nasty, well then Congress can make rules about which ones should be admitted.

Should the ring three judges be more concerned about the lions than they are? Or are these really imaginary lions? Zebras, after all, are likely to think they see lions lurking behind every bush. You can't blame them for this; it's a survival instinct. Here's what our zebra thinks it can "envision":

…a market developing in which speculators with no relationship to the copyrighted work pay a small sum to the copyright owner—who might have no belief in the merits of an infringement claim and no incentive to sue—in exchange for the ability to pursue a high volume of nuisance settlements or unwarranted jury verdicts.

We'll leave aside for a moment the disturbing lack of faith in our judicial system shown by the vision of a "high volume" of "unwarranted jury verdicts." The question is how likely it is that copyright owners will want to sell me their meritless claims so I can set up Nuisances R' Us. It seems to me that in many if not most cases, if copyright holders prefer not to bring suit themselves, they will also prefer that no one else do so either. For a number of reasons. One is that any lawsuit involving a copyright they own will likely wind up dragging them into the ring one way or another even if they’re not the plaintiffs. They will be subject to discovery and the other hassles of litigation over a case they’re not interested in. In addition, if the suit really is nothing but a nuisance suit, whatever public or private opprobrium falls on the perceived bringers of nuisance suits will splatter them as well, for everyone will know where I got the right to make a nuisance of myself.

In Silvers, the assignee was actually the author of the work, who didn’t own the copyright because she’d written it as a work for hire for a production company. (Which is why the ring two judges see her as a puddytat and not a lion. Even though she doesn’t own any exclusive rights, she still has some sort of meaningful relationship with the work in question.) Why did the company assign the claim to her? I’d guess it was because while they didn’t want to pursue it themselves (probably to avoid conflict with Sony), they also couldn’t just ignore it without arguably violating some contractual or fiduciary duty to protect the author’s interest in royalties. So they said, “Here, if you think this cost you money, you can go after it. We’re keeping out of it.” If I had tried to buy the same claim from them, the desire to avoid conflict with Sony would not be counterbalanced by anything but the “small sum” my business model allows me to offer.

So, to make my high volume nuisance copyright suit enterprise work, I have to identify a steady stream of potential infringement claims whose value is iffy enough that the copyright owners have no interest in pursuing them, that affect no-one the copyright owners want to have good business relations with, that are colorable enough to keep me from getting thrown out of court and/or slapped with sanctions, and whose owners are unconcerned enough about the potential costs to them of my bringing suit to sell to me for small sums. All things considered, I think I’ll keep my day job.

On this one, my hat goes in the ring with Judges Bea and Kleinfeld.
posted by CMN at 10:34 AM
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Born in Tijuana...

I just bought tickets to take the family to see King Tut in June. I remember going to the exhibition as a kid the first time it came to SoCal in the late seventies. I guess it's kind of like Haley's comet: each generation gets a chance to go. Lucas just finished studying Egyptian civilization at school, so it's perfect timing. Another auspicious sign: the continued involvement of the best-known scholar in the field.
posted by CMN at 11:05 AM
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I for one wouldn't be offended by this, if it were actually funny.

Trouble is, it's not. Unless you're still able to channel that 12 year old part of you that once thought, for about 15 minutes, that dead baby jokes were funny. Even then.

Well, #25 is kind of funny.
posted by CMN at 1:00 PM
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Drudge is linking this article in the Harvard Crimson under the description: HARVARD NOW UPSET OVER JADA PINKETT SMITH COMMENTS...

The article (which fails to explain even in summary what the lady actually said) contains the following sentence:

According to the Foundation’s Student Advisory Committee (SAC) Co-Chair Yannis M. Paulus ’05, the two groups have already planned concrete ways to address the concerns that Pinkett Smith’s speech rose.

I'd say Harvard has more important things to be upset about.
posted by CMN at 4:00 PM
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Boilerplate Headlines

Sudden Violence Derails Hopes For Peace In Middle East

Democrats Criticize Republicans For Serving Interests Of Rich

Kennedy Writes Opinion That Reaches Result In Line With Most People's Gut Reactions; Scalia Writes Scathing Dissent Demonstrating Its Lack Of Coherent Legal Rationale
posted by CMN at 3:48 PM
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When the doodoo hits the Fanfan.

Alright, I sent this query to some of my friends in academia and haven't received any enlightenment yet. Is there any to be had?

Pages 13-14 of the Stevens majority opinion in part (not to be confused with the Stevens dissent in part) explains to us how the 6th am is about protecting us from "judicial despotism," and says I have the right, before being deprived of an extra ten years of my liberty, to have the fact which provides the basis for adding those ten years submitted to 12 of my "equals and neighbors," rather than just to some "lone employee of the State."

All of the Supreme State Employees, however, apparently regard it as undoubtedly true (p. 8-9) that "when a trial judge exercises his discretion to select a specific sentence within a defined range, the defendant has no right to a jury determination of the facts that the judge deems relevant."

So it's "judicial despotism" if a judge is required by Congress to add 10 years--no more, no less--to my sentence if he determines that I had another 566 g's of crack that the jury never heard about.

But if Congress just tells the judge to sentence me any way he deems reasonable (say, a "defined range" of 0-1200 months), and the judge decides all on his own to give me an extra 10--or 20, or 50--years in the clink because of those same 566 g's that the jury never heard about, this is not judicial despotism, and would be perfectly constitutional. As far as I can make out, there's no Sixth Am requirement that Congress prescribe sentences at all. They could just define crimes, and let judges make up sentences as they went along.

What am I missing here?

posted by CMN at 1:32 PM
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